ProvRem 2nd Exam Book Summary in Lieu of TSN

Provisional Remedies |2nd Exam Book Summary
From the Book of Civil Procedure Bar Lecture Series (Vol II) by Atty. Riano
Special Civil Actions any of these

Nature of a civil action; purposes courts.
o This if fixed by a
o A civil action is one by which a party sues another specific rule
for the enforcement or protection of a right, or the without regard
prevention or redress of a wrong to the residence
o Rule 1, Section 3(a) of the Rules of Court declares of the parties.
the following purpose of a civil action: o It is only when
a) Enforcement or protection of a right the petition is
b) Prevention or redress of a wrong lodged with the
RTC that
Kinds of civil actions: residence is
a) Ordinary civil action considered.
b) Special civil action
Examples of rules not common to both civil actions

Ordinary personal Petition for Quo
a.) Action warranto (special
action)
Concept of cause of action The residence of either of The petition filed with the
the plaintiff or the RTC merely considers the
Ordinary Civil Special Civil Action defendant is factored in residence of the
Action the determination of venue respondent
Rule 2 Section 1 of the The concept of a cause
Rules of Court of action requiring a
provides that, “Every violation of someone’s o If it is Solicitor General
ordinary action must right does not, who commences the
be based on a cause however appear action, the said petition
of action.” relevant to special civil will be brought in RTC in
- The defendant in action of declaratory the City of Manila, CA or
such action must have relief (Rule 63, Section in the SC (Sec. 7, Rule
either performed or 1 of the Rules of 66)
omitted to do an act in Court).
violation of the rights
of the plaintiff. - The same for the c.)
complaint for
interpleader, in which Filing with MTC or RTC
the plaintiff may file a Ordinary Civil Actions Special Civil Action
complaint even if he May be filed initially with There are special civil
has sustained no MTC or RTC depending actions which can only
transgression of his on the jurisdictional be initially filed with MTC
rights (Rule 62, Section amount or nature of the like forcible entry or
1 of the Rules of action involved. unlawful detainer cases
Court). (Sec. 33[2] B.P. 129)
d.)
b.) Summons
Ordinary Civil Action Special Civil Action
Venue Upon filing of the This does not always
complaint and apply
Ordinary Civil Special Civil Action payment of the o In Rule 65, Certiorari,
Action requisite legal fees, Prohibition, and
Venue in ordinary This does not always the clerk of court shall Mandamus, upon the
civil actions is apply to special civil issue the filing of the petition
determined either action. corresponding and the same is
the residences of the o Quo summons to the found to be sufficient
parties where the Warranto- The defendants in form and
action is personal, or venue in the substance, the court
by location of the said petition is shall issue and order
property where the where the SC or (not summons)
action is real. CA sits if the requiring the
petition is respondent/s to
commenced in comment on the
Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 1

petition within 10 the time allowed if any claimant fails to

days from the receipt therefor, the court plead (Sec. 5, Rule 62),
of a copy of the shall upon motion of a failure to answer the
petition (Sec. 6) the claiming party complaint in the special
o - If the petition is with notice to the civil actions of forcible
filed in Rule 64, the defending party, and entry or unlawful
comment shall be proof of such failure, detainer does not lead
made within 10 days declare the defending to a declaration of
from notice (Sec.6) party in default (Sec. default. Instead the
3, Rule 3) court, motu proprio or
e.) motion of the plaintiff,
shall render judgment
Verification as may be warranted
by the facts alleged in
Ordinary Civil Special Civil Action the complaint. (Sec. 7,
Action Rule 70)
As a rule, pleadings Certain special civil
need not be verified, actions have to be NOTE: Motion to
except when verified declare the defendant
otherwise specifically Examples in default is a
required by law o Complaint for prohibited motion (Sec.
expropriation (Sec. 13 [8], Rule 70)
1, Rule 67)
o Petition for The special civil action in the Rules of Court
certiorari (Sec. 1,
Rule 65) 1. Interpleader (Rule 62)
o prohibition (Sec. 2, 2. Declaratory relief and similar remedies (Rule
Rule 65) 63)
o mandamus (Sec. 3, 3. Review of judgments and final orders or
Rule 65) resolution of the Commission on Elections and
o An action for the the Commission on Audit (Rule 64)
usurpation of a 1. This is a new special action and applies
public office, to judgments, final orders or
position, or resolutions of 2 constitutional
franchise (Sec. 1, commission: COMELEC and COA.
Rule 66) 4. Certiorari, Prohibition, and Mandamus (Rule
o A review of the 65)
judgements, 5. Quo warranto (Rule 66)
resolutions, and 6. Expropriation (Rule 67)
final orders of the 7. Foreclosure of real estate mortgage (Rule 68)
COMELEC and COA, 8. Partition (Rule 69)
brought to the SC 9. Forcible entry and unlawful detainer (Rule 70)
(Sec. 5 Rule 64) 10. Contempt (Rule 71)
o Forcible entry and
unlawful detainer How special civil actions are initiated or commenced
(Sec. 4, Rule 70)
o Proceedings for Ordinary Civil Action Special Civil Action
indirect contempt, Initiated by filing of a Initiated by filing of a
other than those complaint petition or complaint
initiated by the
court against which
the contempt was
committed (Sec.4, Special Civil Action
Rule 71) Commenced by a By filing a complaint
petition
a. Declaratory relief and a. Interpleader
f.) other similar remedies b. Expropriation
b. Review of adjudication of c. Foreclosure of real
Rule on Default due to Failure to file an the COMELEC and COA estate mortgage
answer c. Certiorari, Prohibition, d. Partition
Ordinary Civil Special Civil Action and Mandamus e. Forcible entry
Action d. Quo warranto f. Unlawful detainer
If the defending party Rule on default may e. Contempt
fails to answer within apply in Interpleader

Court with jurisdiction over special civil actions Indirect contempt Indirect contempt
under Section 5 of Rule committed against RTC or
Special Civil Actions Where to file 71 a court of high rank may
Forcible entry unlawful MTC be filed with such court.
detainer
Special civil actions May be filed not only with Where such contempt was
which are real actions the RTC but also with MTC omitted against a lower
(accion publiciana, depending on the assessed court, the charge may be
accion reinvindicatoria, value of the property filed with RTC if the place
or partiion of real involved in which the lower court is
property) sitting or may be instituted
Certiorari, Prohibition, May be filed in RTC if the in such lower court
Mandamus petition relates to the act
or omission of a MTC, a RULE 62
corporation, board, Interpleader
officer or person. This Meaning of interpleader; purpose
can also be filed with the
CA or Sandiganbaysn, An interpleader is a special civil action filed by a person
whether or not the same in against whom two (2) conflicting claims are made upon the
aid of the court’s appellate same subject matter and over which he claims no interest
jurisdiction. whatever, or if he has an interest, it is one which, in whole
or in part, is not disputed by the claimant. The action is
If it petitions involves an brought against the conflicting claimants to compel them to
act or omission of a quasi- interplead and litigate their claims among themselves.
judicial agency, the
petition shall be Requisites or an interpleader (Sec 1, Rule 62)
cognizable, as a rule, by
a. There must be two (2) or more claimants with
the CA, unless otherwise
adverse or conflicting interest upon subject matter
provided by law or rule
b. The conflicting claims involve the same subject
matter
In election cases
c. The conflicting claims are made against the same
involving an act or
person (plaintiff)
omission of a MTC or RTC,
d. The plaintiff has no claim upon the subject matter
the petition shall be filed
of the adverse claims or if he has an interest at all,
exclusively with the
such is not disputed by the claimants
COMELEC in its aid of its
appellate jurisdiction. When interpleader is proper; when filed
It can be filed with SC 1. An interpleader usually originates from a

stipulation where a person has a property in
Note: when a case is his custody over which he himself asserts no
subject to concurrent interest, but several persons claim a right to
jurisdiction, the principle of the property
hierarchy of courts shall  also arise when one, who a has an
apply. obligation to perform an act, is
confronted with conflicting claims
Quo warranto SC, RTC or CA asserting the right to be entitled to the
Interpleader RTC or MTC depending on benefits of the performance of the
the subject matter or the obligation.
amount of claim.  Also result when 2 or more person
Petition for declaratory RTC but a similar remedy claim a right to collect from a debtor
relief like quieting of title may be who admits his liability but is
filed with the MTC uncertain as to who among several
depending bon the claimants is entitled to payments.
assessed value of the  He will then deposit the
property. amount to the court and
Complaint for RTC but a review of prays that the claimants
expropriation judgments, final orders litigate their dispute between
or resolutions of the or among themselves.
COA and COMELEC may
be brought only on 2. In the case of Pasricha v. Don Luis Dizon
certiorari under Rule 65 to Realty, Inc., the special civil action for
the SC interpleader is proper when the lessee does
not know the person entitled to the payment

of the rentals due because of conflicting claims Note: except actions

on the property. for forcible entry and
unlawful detainer
3. In the case of Ocampo v Tirona, the remedy (filed in MTC)
of interpleader is afforded not to protect a One incapable of RTC
person against double liability but to protect pecuniary estimation
him against a double vexation in respect of (performance of
ones’s liability. action)
Illustrations How commenced

1. Warehouseman who has custody of goods claimed Commenced by the filing of a complaint. The action brought
to be owned by 2 or more persons who do not have by person against whom conflicting claims upon the same
the same interest. He may file an action for subject are made. (Sec. 1 and 2, Rule 62)
interpleader and pass on to the court the
determination as to who the rightful owner is. Interpleader distinguished from intervention
(basis: Warehouse Receipt law Act 2137)
 Warehouseman may also be sued for Interpleader Intervention
damages if he refuses to deliver the Special civil action, Not an original action but
goods. Hence, Sec 17 of Act 2137, independent and original merely ancillary and
authorizes him to require all known depends upon the
claimants to interplead to shield him from existence of a pending
liability. action
 However, it must be mentioned that the Commenced by the filing Commenced by a motion
warehouseman has actually an interest in of a complaint, it being an for leave to intervened
the goods deposited to the extent of his original action filed in a pending case
lien on the goods deposited or on the attaching thereto the
proceeds thereof in his hands in pleading-in-intervention
accordance with Sec. 27 of Act 2137. This Filed by the person who Filed by a person who has
interest, however, does not preclude him has no interest in the legal interest in any of the
from filing a complaint in interpleader subject matter of the following:
because such interest is one that is not action or if he has an a. The subject
disputed by the claimants. interest, the same is not matter of the
2. The lessee who may commence a complaint for disputed by the claimants. litigation
interpleader when he is confronted with adverse b. The success of
claimants on the rentals due and he is in doubt as either of the
to who of them should be rightful recipient. To parties
protect himself from liability for making an c. An interest
erroneous payment, where 2 or more persons against both
claim the right to collect, the debtor will have to d. He may be
file an action for interpleader as a step towards the adversely affected
extinguishment of his obligation. by the disposition
3. When confronted by conflicting claims in the or distribution of
proceeds of an insurance policy. property in the
custody of the
Court with jurisdiction court or of an
officer thereof.
Subject matter Where to file The defendants are If a complaint-in-
Personal property not MTC where the case is brought into the action intervention is filed, the
more than P300,000 filed outside Metro because they are sued defendants are already
Manila and impleaded as such in parties to an existing suit,
Personal property at the complaint. not because of the
not more than MeTC if filed in Metro intervention, but because
400,000 Manila of the original suit.
Real property with an MTC if filed outside Payment of docket fees; lien
assessed value of not Metro Manila
more than P20,000 The person who files the complaint pays the docket and
other lawful fees. However, these fees, as well as the
Real Property with an costs and litigation expenses, shall constitute a lien or
assessed value of not MeTC if filed in Metro charge upon the subject matter of the action, unless the
more than P50,000 Manila court shall order otherwise (Sec 7, Rule 62).
Summons; order to interplead

1. The summons shall be served upon the conflicting  Required to serve a copy to his answer upon the
claimants. Served together with a copy of the other conflicting claimants. This is because the
complaint and the order (Sec. 3, Rule 62) litigation is between or among the conflicting
2. The order that served together with summons claimants, and the plaintiff has no interest in the
and a copy of the complaint refers to the order subject matter.
requiring the conflicting claimants to interplead  When the court declares a claimant in default, the
with one another. Issued upon the filing of the judgment to be rendered is specified by the rule.
complaint (Sec. 2, Rule 62) The judgment is one that bars him from any claim
3. The court may include in the order a direction in respect to the subject matter.
that the subject matter of the action be paid or
delivered to the court. (Sec.2) Reply
Motion to dismiss  The claimant served with the answer may file his
reply to the same. The rule does not consider the
1. Within the time for filing an answer (15 days from filing of a reply mandatory.
service of summons in accordance with section 5  Even in the ordinary civil action, a party may or
of Rule 62), each claimant may file a motion to may not file a reply because even if a reply is not
dismiss on the ground of: filed, all the new matters alleged in the answer are
a. Impropriety of the interpleader action deemed controverted or denied.
b. On other appropriate grounds specified in Rule
16 (not applicable anymore) Other pleadings
(Sec. 4)
 The parties may file a counter-claims, cross-claim,
third- party complaints and responsive pleadings
Impropriety of the interpleader action thereto as provided by the Rules (Sec. 5)
 Such pleadings may, likewise be filed in an
 The ground of impropriety of the filing of the interpleader because, as a rule, special civil actions
complaint is special and separate ground are also governed by the rules for ordinary civil
 For it to be proper, the requirements of Sec. 1 Rule actions, subject to specific rules prescribed for a
62 should be complied with such as the existence particular special civil action.
of conflicting claims made by the claimants upon
the same subject matter. Failure of such is subject Pre-trial
to dismissal on the ground of impropriety of
 It can also be conducted in an interpleader
interpleader.
action (Sec. 6)
 There could be also an impropriety of interpleader
 Rule 18 of the Rules of Court shall apply
where it appears from the allegations in the
complaint that the plaintiff claims an interest in the Determination; adjudication
subject matter that is disputed by the claimants.
The court shall determine the respective rights of the
Effect of the filing of a motion to dismiss on the claimants and shall adjudicate the several claims:
period to answer
a. After the pleadings of the conflicting claimants
 The period to file an answer is interrupted or tolled have been filed
by the filing of a motion to dismiss. If the motion
b. The pre-trial has been conducted (Sec 6)
is denied, the movant may file his answer within
the remaining period to answer, but which shall not Rule 63
be less than 5 days in any event. The period shall Declaratory relief and similar remedies
be counted from the notice of denial of motion. Meaning
Answer  Declaratory relief is defined as an action by any
person interested in a deed, will, contract or other
Each claimant shall file his answer setting forth his claims
written instrument, execution order or resolution,
within 15 days from the service of summons upon him,
to determine any question of construction or
serving a copy thereof upon each of the other conflicting
validity arising from the instrument, executive
claimants (Sec. 5)
order or regulation, or statute, and for a
Default declaration of his rights and duties thereunder.
 The only question that may be raised in such a
 If any claimant fails to plead within the time fixed petition is the question of construction or validity
thereof, on motion, declare him in default and of provision in an instrument or statute.
thereafter render judgment barring him from any  Corollary is the general rule that such an action
claim in respect to the subject matter (Sec. 5) must be justified as no other adequate relief or
 The court under sec. 5 is not authorized to declare remedy is available under the circumstances.
a claimant in default moto proprio. Any declaration
of default requires a prior motion to that effect. Purpose
This is not mandatory to the court
 The petition is brought for the court to:

a. Determine any questions of construction or as when the instrument or the statute has
validity arising from the subject of the action already been breached
b. Seek for a declaration of the petitioner’s rights  The court does not have the discretion to refuse to
thereunder. (Sec. 1) act with respect to actions describe as “similar
 Practical, application, actions to declare a law, a remedies”
statute or executive order unconstitutional has  Sec 5: Except in actions falling under the second
been brought as for petition for declaratory relief. paragraph of Sec. 1 xxx.
 To secure an authoritative statement of the rights
and obligations of the parties under a contract or Requisites for declaratory relief
statute for their guidance in the enforcement or
a. The subject matter of the controversy must be a
compliance with the same and not to settle issues
deed, will, contract or other written instrument,
arising from its alleged breach.
statute, executive order or regulation, or ordinance
 To seek judicial interpretation of an instrument or
b. The term of said statute or document and the
for judicial declaration of a person’s rights under a
validity thereof are doubtful and require judicial
statute and not to ask for affirmative relief
construction
injunction, damages or any other relief beyond the
c. There must have been no breach of the statute or
purpose of the petition as declared under the
document in question
Rules.
d. There must be an actual justiciable controversy or
 It is not brought to settle issues arising from
the ripening seeds of one between persons whose
breach because after the breach of the contract or
interests are adverse
statute, the petition can no longer be brought.
e. The issue must be ripe for judicial determination
 Where a declaratory judgment as to disputed fact
f. Adequate relief is not available through other
would be determinative of issues rather than a
means or other forms of action or proceeding
construction of definite stated rights, status and
other relations, commonly expressed in a written Subject matter in a petition for declaratory relief;
instrument, the case is not one for declaratory exclusive
judgment.
 Unavailable where the judgment would have to be  Deed
made, only after a judicial investigation of disputed  Will
issues.  Contract or other written instrument
 Statute
2 types of actions under Rule 63; similar remedies  Executive order or regulation
 Ordinance
 First paragraph refers to an action for declaratory
 Any other governmental regulation (Sec.1)
relief.
 These are exclusive
 The second paragraph deals with similar remedies,
which are: When a petition for declaratory relief is not proper;
a. Action for reformation of an instrument examples
b. Action for quieting of title to real property or
remove clouds therefrom  An action for declaratory relief to ask the court to
c. Action for consolidation of ownership declare his filiation and consequently his hereditary
rights.
When court may refuse a judicial declaration  An action for declaratory relief to seek judicial
declaration of citizenship to correct a previous
 The two types of actions under Sec. 1 are treated
unilateral registration by petitioner as an alien
differently.
 The purpose of seeking enlightenment as to the true
 In declaratory relief, the court, moto proprio or
import of a judgment. The proper remedy is to move
upon motion, may refuse to exercise the power to
for a clarificatory judgment.
declare rights and to construe instruments in any
 To assail judgment. Before a judgment becomes final
case where a decision would terminate the
and executory, the aggrieved party may file a motion
uncertainty or controversy which gave rise to the
for reconsideration, motion for new trial, or perfect
action, or in any case where the declaration or
an appeal. After the judgment becomes final and
construction is not necessary and proper under the
executory, he may file a petition for relief from
circumstances (Sec. 5).
judgment or an action to annul the judgment.
 The court is given the discretion to act or not to act
 Even if the subject is one enumerated under the
on the petition. The refusal of the court to declare
Rules, where the contract or statute is clear in its
a right or construct an instrument may be
terms and there is no doubt as to its meaning and
considered as dismissal of petition on the grounds
validity.
under Sec 5 namely:
a. Where a decision on the petition would not Issue and relief
terminate the uncertainty or controversy
which gave rise to the action  The only issue that may be raised in such a petition
b. Where the declaration or construction is not is the question of construction or validity of
necessary and proper under the circumstances provisions in an instrument or statute.

Who may file the petition where the assessed value does not exceed
P20,000.
 Where the subject of the petition is a deed, will,  In the case of Salvador v. Patricia, Inc., since the
contract, or other written instrument, the petition complaint did not contain any averment of the
is commenced by any person interested therein. assessed value of the property, such failure left the
 Where the subject of the petition is a statute, trial court bereft any basis to determine which
executive order or regulation, ordinance or any court could validly take cognizance of the cause of
other governmental regulation, the petition is action for quieting of title.
commenced by one whose rights are affected  An action for reformation of an instrument should
by the same. be treated as an action incapable of pecuniary
estimation, the issue therein being one other than
Other parties
for the recovery of money. This must be filed with
 The other parties are all person who have or claim the RTC.
any interest which would be affected by the  An action for consolidation of ownership- RTC. This
declaration (sec. 2). is merely to obtain a judicial order to effect the
 The rights of persons not made parties to the registration of the consolidated ownership in the
action do not stand to be prejudiced by the Registry of Property and not to acquire ownership
declaration. The failure to implead such persons or title over the property (Cruz v. Leis).
does not affect the jurisdiction o the court over the
Petition for declaratory relief treated as petition
petition.
for prohibition
 Where the action involves the validity of a local
government ordinance, the corresponding  In the case of Diaz v. Secretary of Finance, a
prosecutor or attorney of the local government unit petition, captioned, as one for declaratory
involved shall be similarly notified and entitled to relief, was filed with the SC assailing the
be heard. validity if the impending imposition of VAT by
 If such ordinance is alleged to be unconstitutional, the BIR on the collection of tollway operators.
the Solicitor General shall be notified by the party The Court issued a resolution, treating the
assailing the same and shall be entitled to be heard petition as one for prohibition rather than for
upon such question. (Sec. 3) declaratory relief.
- There are precedents for treating a
Court with jurisdiction
petition for declaratory relief as one
 The action for declaratory relief should be brought for prohibition if the case has far-
in the appropriate RTC. reaching implications and raises
questions that need to be resolved for
Applicability of Petition for declaratory relief the public good. The imposition of VAT
on toll fees has far-reaching
 Question the validity of an EO issued by the implications.
President of the Philippines - Although the petition does not strictly
 to set aside an EO issued by a city mayor. comply with the requirements of Rule
65, the Court has ample power to
 Where the action is for quieting of title, which is a waive such technical requirements
similar remedy under the second paragraph of Sec. when the legal questions to be
1, the jurisdiction will depend upon the resolved are of great importance to
assessed value of the real property the public. The same may be said of
 Where in an action styled as for quieting or removal the requirement of locus standi which
of a cloud on its title, the plaintiff actually seeks for is a mere procedural requisite.
a declaration of his rights, the action is one for  There are instances when a petition is faced
declaratory relief, which falls within the jurisdiction with what the SC terms as “procedural
of the RTC. barriers” as when he files a petition for
 Judiciary Reorganization Act of 1980: declaratory relief with the SC which has no
- It is important to note that Sec.1 of Rule 63 original jurisdiction over such petition. The
does not categorically require that an action petition could be dismissed outright.
to quite title be filed before the RTC. The  When the threshold and purely legal issue in
use of the word may in a statute denotes the petition has far-reaching implications to
that the provision is merely permissive and the national economy, the Court may treat the
indicates a mere possibility, an opportunity petition for declaratory relief as one for
or an option. mandamus or prohibition depending on the
- In contrast, the mandatory provision of the allegations in the petition.
Judiciary Reorganization Act of 1980, uses  If the Constitutional principle involved therein
the word shall and explicitly requires the affected all government employees, justifying
MTC to exercise exclusive or original a realization of the technical rules of
jurisdiction over all civil actions which procedure, and certainly requiring the
involves title or possession of real property

interpretation of the assailed presidential 1. Since the objective of the petition is merely an
decree. interpretation of a deed or a contract or for a definitive
pronouncement of rights under a particular law, rule or
order, there is nothing to execute in the judgment of the
Inapplicability of a third-party complaint court the way judgments in ordinary civil actions are
executed.
 In Commissioner of Customs v. Cloribel, because
of the absence of allegations seeking material or 2. It was ruled that the judgment in a petition for
affirmative reliefs in a petition for declaratory declaratory relief can be carried into effect without
relief, it has been held that when the main case is requiring the parties to pay damages or perform any act as
for declaratory relief, a third-party complaint is when the petitioner’s complaint is captioned as Quieting of
inconceivable. Title and Damages, but all the petitioner prayed for is for
- The relief sought in this kind of pleading is the court to uphold the validity of its titles as against that
contribution, indemnity, subrogation or of respondent (Phil-Ville v. Bonifacio)
other relief from the third-party defendant
in respect of the claim of the plaintiff 3. In one case, the petitioner posited that the trial court
against him. erred in ordering it to pay the balance of the deposit
- This relief cannot be granted because, in insurance to respondents, maintaining that the petition
declaratory relief, the court is merely stemmed from a petition for declaratory relief which does
interpreting the terms of the contract. not essentially entail an executory process and the only
relief that should have been granted by the trial court is a
Applicability of a compulsory counterclaim declaration of the parties’ rights and duties.
1. A petition for declaratory relief may entertain a a petition for declaratory relief does not essentially entail
compulsory counterclaim as long as it is based on or arising an executory process” ( PDIC v. CA)
from the same transaction, subject matter of the petition.
4. Execution of judgments in a petition for declaratory
A special civil action is, after all, not essentially different relief is not necessarily indefensible since a special
from an ordinary civil action, which is generally governed civil action is, after all, not generally governed by
by Rules 1-56 of the Rules of Court, except that the former Rules 1- 56.
deals with a special subject matter which makes necessary
some special regulation. Filing before any breach or violation
But the identity between their fundamental nature is such 1. The petition for declaratory relief is filed before there
that the same rules governing ordinary civil suits may and occurs any breach or violation of the deed contract, statute,
do apply to special civil actions if not inconsistent with or if ordinance or executive order or regulation.
they may serve to supplement the provisions of the peculiar
rules governing special civil actions (DBM v. Manila’ Finest) It will not prosper when brought after a contract or a statute
has already been breached or violated. Also when the
2. Can a counterclaim be filed and entertained in subject of the action, like a statute has already been
declaratory relief proceedings? infringed or transgressed prior to the institution of the
petition, declaratory relief is not proper.
In the USA the great majority of courts allow the setting up
of a counterclaim in a petition for declaratory relief or If there has already been a breach, the appropriate ordinary
judgment. civil action, not declaratory relief, should be filed.
The only requirement is that the subject matter of the said 2. Where the law or contract has been contravened prior to
counterclaim be connected with the subject matter of the the filing of an action for declaratory relief, the court can
action and must, arise out of the same transaction. no longer assume jurisdiction over the action.
Granting affirmative relief 3. In a case, the petitioners averred that they had already
been deprived of the possession of their property. The
1. In a petition for declaratory relief, the petitioner seeks proper remedy, therefore is the filing of accion publiciana
for a declaration of his rights under an instrument or a or accion reinvindicatoria, not a case for declaratory relief.
statute. As a rule, therefore, affirmative reliefs as in (Malana v. Tappa)
ordinary civil actions are not granted in declaratory
petitions. There were instances, however, when affirmative In other words, a court has no more jurisdiction over an
reliefs were granted by the Court in a petition for action for declaratory relief it its subject has already been
declaratory relief. infringed or transgressed before the institution of the
action.
2. In Adlawan v. IAC – The Court held that although the
action is for a declaratory judgment but the allegations in 4. However, when the breach occurs not before the filing of
the complaints are sufficient to make out a case for specific the petition for declaratory relief but after the action has
performance or recovery of a property with claims for been instituted and before its final termination, it is
damages. submitted that the action need not be dismissed because it
may be converted into an ordinary action.
No executory process as in ordinary civil actions

Justiciable controversy; other requisites vitiation of consent. The remedy here is to file for
annulment of contract not reformation of the instrument.
1. The traditional concept of a cause of action in ordinary
civil actions, as earlier mentioned in Se. 2 of Rule 2, does 4. Reformation of the instrument cannot be brought for
not apply to a declaratory relief where no specific right of any of the following:
the plaintiff has yet been violated because the action is
brought before a breach of the deed or law occurs.  Simple donation inter vivos wherein no condition is
imposed
2. The absence of a breach should not, however be taken  Wills; or
to mean that the petition need not involve a justiciable  When the real agreement is void.
controversy.
Consolidation of ownership
Requirements for declaratory relief:
1. The concept of consolidation of ownership under Art
 There is a justiciable controversy, 1607 of the Civil Code has its origins in the substantive
 The controversy is between persons whose interest provision of the law on sales.
are adverse,
 The party seeking the relief has a legal interest in 2. Legal Redemption, also called retracto legal, is a
the controversy, and; statutory mandated redemption of a property previously
 The issue invoked is ripe for judicial determination sold.
3. Even in cases of declaratory relief, there must be an 3. Conventional redemption or pacto de retro sale, is one
actual and justiciable, not merely theoretical, controversy ( that is not mandated by statute but one which takes place
Aragones v. Subido) because of the stipulation of the parties to the sale.
4. Courts do not sit to adjudicate mere academic questions 4. Where redemption is not made within the period agreed
to satisfy scholarly interest, however, intellectually upon, in case the subject matter of the sale is real property.
challenging. The controversy must be justiciable, definite
5. The action brought to consolidate ownership is not for
and concrete, touching on the legal relations of the parties
the purpose of consolidating the ownership of the property
having adverse legal interests.
in the person of the vendee or buyer but for the registration
5. The Court had always stressed that a person who of the property.
impugns the validity of a statute must have a personal and
Quieting of title; quasi in rem action
substantial interest in the case such that he has sustained,
or will sustain, direct injury as a result of its enforcement. 1. Quieting of title is brought to remove a cloud on title to
real property of any interest therein. The action is called
II – SIMILAR REMEDIES
one to quiet title to real property.
Reformation of an instrument
2. Quieting of title is a common law remedy for the removal
1. Reformation of an instrument is a remedy in equity of any cloud upon, doubt, or uncertainty affecting title to
where a written instrument already executed is allowed by real property.
law to be reformed or construed to express or conform to
3. The cloud on title consists of: Any instrument, record,
the real intention of the parties.
claim, encumbrance or proceeding;
2. The instrument is to be reformed because despite the
 Which is apparently valid or effective;
meeting of minds of the parties as to the object and cause
 But is in truth and in fact
of the contract, the instrument which is supposed to
invalid,ineffective,voidable, or unenforceable;
embody the agreement of the parties does not reflect their
 may be prejudicial to the title sought to be quieted
true agreement by reason of mistake, fraud, inequitable
conduct, or accident. 4. An action to quiet title is characterized as a proceeding
quasi in rem. In an action quasi in rem, an individual is
The action is brought to bring out the true intention of the
named a defendant and the purpose of the proceeding is to
parties.
subject his interests to the obligation or loan burdening the
Example: The parties have agreed on the area of the land property.
subject of the sale. By an act of fraud of the seller who
Actions quasi in rem deal with the status, ownership or
prepared the deed of sale, a smaller area is indicated in the
liability of a particular property but which are intended to
deed. Here, there is nothing defective in the contract which
operate on these questions only as between the particular
is the meeting of the minds. A contract does not refer to
parties to the proceedings and not to ascertain or cut of the
the instrument, deed or document but to the meeting of the
rights or interests of all possible claimants.
minds.
Requisites for quieting of title
3. Where the consent of a party has been procured by
fraud, inequitable conduct or accident, and an instrument 1. In order that an action for quieting of title may prosper,
was executed by the parties in accordance with the two requisites must concur:
contract, what is defective is the contract itself because of

 The plaintiff or complainant has a legal or equitable the ordinary course of law. Hence, if appeal is available,
title or interest in the real property subject of the certiorari is not the remedy.
action; and
 The deed, claim, encumbrance, or proceeding Raising jurisdictional grounds
claimed to be casting cloud on his title must be
1.It bears stressing that the petitioner must anchor the
shown to be, in fact, invalid or inoperative despite
petition on jurisdictional grounds, i.e., that the Commision
its prima facie appearance of validity or legal
concerned acted without or in excess of jurisdiction or with
efficacy.
grave abuse of discretion amounting to lack or excess of
2. The plaintiff must first show that he has a legal or at jurisdiction.
least an equitable title over the real property in dispute,
2.It is clear from the tenor of Rule 64 that the aggrieved
and that some deed or proceeding beclouds it validity or
party cannot appeal to the Supreme Court by way of a Rule
efficacy. Thus, where the certificate of title shows that the
45 petition for review on certiorari.
land was clearly issued in the name of the heirs of a certain
person, the petitioner, not being an heir, has neither legal 3. It was ruled that any resort to the said petition under
nor equitable title to the property subject of the action for Rule 64, in relation to Rule 65 of the 1997 Rules of Civil
quieting of title. The action must be dismissed. Procedure is limited to the resolution of jurisdictional
issues.
4.In a petition for certiorari under Rule 64 in relation to Rule

RULE 64
65 of the Rules of Court, the primordial issue to be resolved
Review of judgments and final orders or resolutions
is whether the respondent tribunal committed grave abuse
of the commission on elections and the commission
of discretion amounting to lack or excess of jurisdiction in
on audit.
issuing the assailed resolution.
Rule 64 is a relatively new rule and has the Constitution of
5.Decisions and resolutions of the COA may be reviewed
1987 as its basis. Section 7 of Art IX-A provides:
and nullified only on the ground of grave abuse of
“…Unless otherwise provided by this Constitution or by law, discretion.
any decision, order, or ruling of each commission may be
Grave abuse of discretion exists when there is an evasion
brought to the Supreme Court on certiorari by the
of a positive duty or a virtual refusal to perform a duty
aggrieved party within thirty days from receipt of a copy
enjoined by law or to act in contemplation of law as when
thereof.”
the judgment rendered is not base on law and evidence but
The provision was interpreted by the Supreme Court, on caprice, whim, and despotism.
through Rule 64 to refer to certiorari under Rule 64 and not
Rule 64 does not apply to the Civil Service
to appeal by certiorari under Rule 45.
Commission
2. The constitutional mandate is now implemented by Rule
1.The mode of review under rule 64 pertains only to
64 of the 1997 Rules of Civil Procedure, which provides for
COMELEC and COA.
the review of the judgments, final orders or resolutions of
the Commission on Elections and the Commission on Audit. 2. Rule 43 establishes a mode of appeal from judgments or
As Rule 64 states, the mode of review is by a petition final orders of the Civil Service Commission.
Applicability of Rule 64 Finding of fact, not reviewable
Rule 64 governs the review of judgments, final orders or 1. The findings of facts of the Commission, when supported
resolutions of the COMELEC and the COA. by substantial evidence, shall be final and non-reviewable.
The above rule has been held no to be encompassing and 2.It is well settled that findings of fact of quasi-judicial
not all petitions for the review of judgments or final orders agencies, such as the COA, are generally accorded respect
of these commissions should be filed under Rule 64. and even finality by the Court, if supported by substantial
evidence, in recognition of their expertise on the specific
Remedy of the aggrieved party; application of Rule
matters under their jurisdiction.
65
When to file the petition; distinctions in the
1. A party aggrieved by the judgment, final order or
application of Rule 65 to other tribunals, officers or
resolution of the COMELEC or the COA may file a petition
persons
for certiorari under Rule 65 with the Supreme Court.
1. The petition for certiorari referred to in Rule 64 shall be
2. If the mode of review is a petition for certiorari under
filed within 30 days from notice of the judgment, final order
Rule 65, then this means that the judgments or final orders
or resolution of the COMELEC or COA sought to be
of the constitutional commissions referred to in Rule 64 are
reviewed.
not reviewable by appeal. Under Sec 1 of Rule 65,
certiorari, as a rule, is available only when there is no 2. While Rule 64 makes reference to certiorari under Rule
appeal, nor any other plain, speedy or adequate remedy in 65, it is worthy to note that the period for filing the petition

for certiorari assailing the judgment of the COMELEC and together with certified true copies of such material
COA is shorter than that provided for under Rule 65. portions of the record and other documents
relevant and pertinent to the petition.
3. The period of 30 days clearly refers to a petition directed  The petition shall state the specific material dates
against a judgment or a final order of the Commission showing that it was filed within the period fixed by
concerned. the rules;
 The petition shall be accompanied by proof of
4.The Court made clear that while Rule 64 refers to the
service of a copy thereof on the Commission
same remedy of certiorari as the general rule in Rule 65,
involved and on the adverse party, and of the
they cannot be equated as they provide different
timely payment of docket and other lawful feels;
reglementary periods.
 The petition shall contain a sworn certification
Rule 65- 60 days against forum shopping; and
 The petition shall pray for a judgment annulling or
Rule 64 -30 days modifying the questioned judgment, final order or
resolution.
The fresh period rule under Rule 65 does not apply to the
timeliness of petitions under Rule 64. (Pates v. COMELEC) Verification; material data (date) rule; certification
against forum shopping
Motion for new trial or motion for reconsideration
Among the requisites, attention is specifically directed to
1. Whether or not a party may file a motion for a new trial the following:
or motion for reconsideration of the judgment, final order
or resolution of the commission involved is dependent upon  That the petition must be verified
the procedural rules of the commission concerned. If such  That the petition shall state the specific material
motions are allowed, the filing of either shall interrupt the dates showing that iwas filed within the period
period for the filing of the petition for certiorari. fixed. (material data (date) rule); and
 That the petition shall contain a sworn certificate
2. If the motion is denied, the aggrieved party may file the against forum shopping
petition within the remaining period, but which shall not be
less than 5 days in any event, reckoned from notice of Effect of failure to comply with the provision on form
denial. and contents of the petition
Payment of docket and lawful fees The failure of the petitioner to comply with any of the
foregoing requirements shall be sufficient ground for the
Upon the filing of the petition, the petitioner shall pay to dismissal of the petition
the clerk of court the docket and other lawful fees. The
petitioner shall, in addition to the docket fees and lawful Order to comment; outright dismissal
fees, also deposit the amount of P500 for costs.
1. The court has 2 options upon receipt of the petition, to
Filing of petition does not stay execution deny the petition outright or to order the filing of a
comment.
While the filing of a motion for reconsideration or a motion
for new trial shall interrupt the period for the filing of the 2. The court may dismiss the petition outright if:
petition, the filing of the petition itself, on the other hand
shall not have the effect of staying the execution of the  The petition is not sufficient in form and substance;
judgment, final order or resolution of the COMELEC or COA.  The petition is filed manifestly for delay; or
 The question raised is to unsubstantial to warrant
Form of the petition further proceedings.
The petition shall be verified and filed in 18 legible copies 3. The Court shall order the respondents to file their
comments within 10 days from notice if it finds the petition
Parties sufficient in form and substance.
The petitioner shall be the aggrieved party. The Form of the comment
respondents shall be the commission concerned and the
person or persons interested in sustaining the judgment, The comments of the respondents shall be filed in 18 legible
final order or resolution. copies and the original shall be accompanied by certified
true copies of the material portions of the records referred
Contents of the petition to together with other supporting papers. Copy shall be
served to the petitioner.
 The petition shall state the facts with certainty and
present clearly the issues involved; No other pleading to be filed
 The petition shall set forth the grounds and brief
arguments relied upon for review; As a rule, no other pleading may be filed by any party. The
 The petition shall be accompanied by clearly legible exception is when the filing of some other pleading is
duplicate original or certified true copy of the required or allowed by the court.
judgment, final order or resolution subject thereof,

Oral argumnets; memoranda; submission for Illustration: Mr Pedro Reyes, in an action for rescission of a
decision contract filed against Mr Donato Cruz in the RTC, received
an adverse judgment. After his motion for reconsideration
When the comments on the petition and the required of the judgment was denied, he file a petition for certiorari
pleadings are filed or when the period to file the same has with the CA alleging that the judgment was rendered under
expired, the case shall be deemed submitted for decision circumstances of grave abuse of discretion amounting to
except if the court decides to set the case for oral argument lack of jurisdiction.
or requires the parties to submit memoranda.
Is the remedy availed of by Mr. Pedro Reyes appropriate?
The remedy is not appropriate. He should have appealed

RULE 65 from the judgment of the RTC. Where appeal is available, a
Certiorari, Prohibition and Mandamus petition for certiorari is not available even if the ground
Purpose and function of petition for certiorari invoked is grave abuse of discretion.
1. Also called a “prerogative” writ because it is never In another case. The plaintiff filed before the RTC a
demandable as a matter of right, the purpose of the petition complaint for specific performance with damages and
is to secure a judgment “annulling or modifying the prayer for a writ of preliminary injunction against the
proceedings of a tribunal, board or officer, and granting defendants. From the adverse judgment of the RTC, the
such incidental reliefs as law and justice may require. defendants promptly appealed to the CA. The appeal,
however was dismissed by the CA thereby affirming the
2. The petition does not concern itself with errors of
findings of the lower court. A subsequent motion for
judgment; its province is confined to issues of jurisdiction
reconsideration was, likewise, denied by the same court.
or grave abuse of discretion.
Such being the case, the defendants filed before the
The primordial task of the court in a petition for certiorari Supreme Court a petition for certiorari under Rule 65.
is to ascertain whether the court in a petition for certiorari
On a procedural ground, the petition was dismissed by the
is to ascertain whether the court below acted with grave
Supreme Court for being the wrong remedy because the
abuse of discretion amounting to excess or lack of
defendant should have appealed the judgment of the CA to
jurisdiction in the exercise of its jurisdiction.
the SC, instead of filing before it a petition under Rule 65.
3. Since certiorari is a remedy narrow in scope, it is not to
Instances where the Court allowed certiorari despite
be considered as a general utility tool in the legal workshop.
availability of appeal:
Do not file certiorari if your purpose is to raise a factual
 When it is necessary to prevent irreparable
issue or to ask for a re-evaluation of the facts and the
damage and injury to a party
evidence.
 Where the trial judge capriciously and whimsically
Certiorari under Rule 65; not a mode of appeal exercised his judgment;
 Where there may be a danger of failure of justice;
1. A petition for certiorari under Rule 65, although  Where an appeal would be slow, inadequate, and
denominated as “special” is an original action the way an insufficient;
ordinary civil action is. It is not a mode of appeal even if it  Where the issue is one purely of law;
is filed with a higher court or tribunal.  Where public interest is involved; and
 In case of urgency
2. An appeal raises the errors of judgment of a court or
tribunal or officer and normally dwells on the factual or legal Also when:
merits of the case. This is not so when one avails of a
petition for certiorari which is not designed to review every  When public welfare and the advancement of
error of a lower court or tribunal. public policy dictate;
 When the broader interest of justice so requires;
If the findings constitute error in judgment only, the proper  When the writs issued are null and void; or
remedy is appeal not certiorari.  When the questioned order amounts to an
oppressive exercise of judicial authority.
3. The remedies of appeal and certiorari are considered
mutually exclusive and not alternative or successive. Certiorari is an original and independent action
Certiorari cannot be a substitute for a lost appeal.
1.Certiorari as a special civil action, is an original action
Certiorari cannot co-exist with an appeal or any other invoking the original jurisdiction of a court to annul or
adequate remedy. If an appeal like a petition for review is modify the proceedings of a tribunal, board or officer and
available, the remedy is appeal, not certiorari as a special independent action that is not part of the trial or the
civil action. proceedings on the complaint filed before the trial court.
When appeal is available as a remedy, certiorari has no 2. Since certiorari as a special civil action is an original
place. action, the decision rendered on such action is appealable,
and not reviewable by another petition for certiorari.

Illustration: The RTC dismissed a petition for certiorari filed It was also held that a petitioner who argues that an appeal
with it by Mr. XX against an order of the Municipal Trial will not promptly relieve him of the injurious effects of the
Court. The Regional Trial Court ruled that the MTC did not judgment, should establish facts to show why and how the
commit a grave abuse of discretion in issuing the assailed appeal is not speedy or adequate. Such party cannot
order. rightfully allege that an appeal is not speedy and adequate
in an attempt to extricate himself from the effects of his
May the dismissal of the petition be reviewed through a own negligence in not perfecting a timely appeal. A court
petition for certiorari filed with the CA? does not err in dismissing a petition for certiorari that is
availed of merely as a substitute for a lost appeal.
The dismissal may not be assailed through a petition for
certiorari. The dismissal, being a judgment, should be the Certiorari not a substitute for lost appeal.
subject of an appeal before the CA.
 Certiorari is not and cannot be made a substitute
Certiorari distinguished from appeal in general. for an appeal where the latter remedy is available
but was lost through fault or negligence.
Certiorari Appeal This holds true even if the error ascribed to the
A remedy designed for the Where the error is not one court rendering the judgment is its lack of
correction of errors in of jurisdiction, but of an jurisdiction over the subject matter, or the exercise
jurisdiction, not errors of error of law or fact, which of power in excess thereof, or grave abuse of
judgment. is a mistake or an error of discretion in the findings of fact or of law set out in
judgment, appeal is the the decision.
remedy  The existence and availability of the right of appeal
A petition for certiorari is An appeal is merely a prohibits the resort to certiorari because one of the
an Original and continuation of the original requirements for the latter remedy is that there
Independent action suit should be no appeal.
The higher court uses its The higher court exercises  If the complaint is dismissed with prejudice
original jurisdiction in its appellate jurisdiction through a motion to dismiss, the ordinary remedy
accordance with its power and power of review of the plaintiff is to appeal, not file a petition for
of control and supervision certiorari. Appeal is the remedy because an order
over the proceedings of dismissing a complaint with prejudice is final in
lower courts. character.
The parties to a petition for The parties to an appeal
certiorari includes the are the original parties to When certiorari is available despite the loss of appeal
lower court or quasi- an action
judicial agency issuing the General rule: Certiorari is not available when the period
assailed order for appeal has lapsed.
A petition for certiorari Ordinary appeals should be
Exception:
should be filed not later filed within 15 days from
than 60 days from the the notice of judgment or  When appeal is lost without the appellant’s
notice of judgment, order, final order appealed from. negligence
or resolution.  When the public welfare and the advancement of
A petition for certiorari An appeal is directed to public policy dictate
may be directed against an judgments and final orders  When the broader interests of justice so require
interlocutory order of the or to those that Rules of  When the writs issued are null and void
lower court Court declares as  When the questioned order amounts to an
appealable. oppressive exercise of judicial authority
A petition for certiorari Such motion is not
generally requires a required before appealing Under the abovementioned exceptions, certiorari may still
motion for reconsideration a judgment or final order. be invoked despite the lapse of the period of appeal.
prior to the filing of the
petition in order to afford Special distinctions between certiorari under Rule
the tribunal an opportunity 45 and certiorari under Rule 65
to correct the alleged
Certiorari under Rule Certiorari under Rule
errors.
45 65
Mode of appeal Special civil action
Certiorari not a substitute for a lost appeal Continuation of the Is an original action and is
appellate process over the not part of the appellate
1. The filing of a petition for certiorari as a substitute for a original case process
lost appeal is erroneous. Certiorari is not and cannot be Seeks to review final Usually directed against an
made a substitute for an appeal where the latter remedy is judgments or final orders interlocutory order or
available but was lost through fault or negligence. The matters where no appeal
remedy to obtain reversal or modification of judgment on may be taken from
the merits is appeal. Purpose: annul the
proceedings of a lower

tribunal and prevent an hearings, and draw conclusions from them as a

unlawful and oppressive basis for their official action and to exercise
exercise of legal authority discretion of a judicial nature.
Raises only questions of Raises questions of  Ministerial function is one which an officer or
law jurisdiction tribunal performs in the context of a given set of
Filed within 15 days from Filed not later than 60 days facts, in a prescribed manner and without regard
notice of judgment or final from notice of judgment, to the exercise of his own judgment upon the
order appealed from order, or resolution sought propriety or impropriety of the act done.
to be assailed  Where the function is merely investigative and
In case a motion for recommendatory with no power to pronounce
reconsideration or new judgment on the controversy, the designation of
trial is timely filed, whether investigator, therefore does not involve the
such motion is required or exercise of judicial or quasi-judicial power. Hence,
not, the 60-day period is the act/s may not be challenged in a petition for
counted from notice of certiorari under Rule 65.
denial of said motion.
Jurisprudence confirms that certiorari does not
Does not require a prior As a general rule, require a
lie against a respondent whose acts are neither
motion for reconsideration. prior motion for
reconsideration. judicial or quasi-judicial.
Stays the judgment Does not stay the Instances where certiorari does not lie because the
appealed from unless a judgment or order subject tribunal, board or officers therein are not exercising
rule provides for the of the petition unless judicial, quasi-judicial, or ministerial functions:
contrary enjoined or restrained
The parties are the original The tribunal, board, or  Filed against the Anti-Terrorism Council and its
parties with the appealing officer exercising judicial members
party as the petitioner and or quasi-judicial functions  Filed against the Regional Tripartite Wage
the adverse party as is impleaded as Productivity Board (RTWPB0 involving a wage
respondent without respondent. order since such power is quasi-legislative
impleading the lower court  Filed against a committee on the ratings of
or its judge. students for honor whose actions in
Filed only with the SC Filed with the RTC, CA, SC proclaiming the honor students of a graduating
or Sandiganbayan class are questioned
 Filed to assail a Show Cause Order issued by
Essential requisites for a petition for certiorari the Chairman of the Members of the
Commission of Human Rights when the case is
A petition for certiorari requires the concurrence of the referred to the Ombudsman
following:  Filed to set aside an executive order issued,
pursuant to the executive functions, by a city
a. The petition is directed against a tribunal, board, mayor who does not exercise judicial or quasi-
or officer exercising judicial and quasi-judicial judicial functions
functions.
b. Such tribunal, board, or officer has acted without Note: Not every executive order issued by an
or in excess of jurisdiction or with grave abuse of executive official should, however, be construed as
discretion amounting to lack or excess of in connection with the exercise of an executive
jurisdiction. function for it should be the nature of the act, not
c. There is neither appeal nor any plain, speedy, and the nature of the office which determines whether
adequate remedy in the ordinary course of law for or not an act is executive or quasi-judicial.
the purpose of annulling or modifying the
proceeding. There must be capricious, arbitrary, or  Filed against the Secretary of Finance or the
whimsical exercise of power for it to prosper. National Internal Revenue Code for issuing a
revenue regulation
First element: Respondent must exercise judicial or  Filed by the officers and members of the
quasi-judicial functions Philippine Public Health Association, Inc.
(PPHAI), assailing the validity of certain joint
 A respondent is said to be exercising judicial circulars of the DBM, DOH, and CSC
function where he has he power to determine what
the law is and what the legal rights of the parties Expanded scope of certiorari
are, and then undertakes to determine these
questions and adjudicate upon the rights of the While Rule 65 specifically requires that the respondent
parties. be a tribunal, board, or officer exercising judicial or
 Quasi-judicial function is a term which applies to quasi-judicial functions, recent pronouncements of the
the action, discretion, etc. of public administrative Court have extended the reach of the petition to
officers or bodies, which are required to investigate functions or acts that are neither judicial nor quasi-
facts or ascertain the existence of facts, hold judicial.

Such pronouncements have categorically broadened Without jurisdiction- the tribunal, board, or officer acted
the purpose of a petition for certiorari to include raising with absolute lack of authority
constitutional issues and reviewing and/or nullifying
the acts of legislative and executive officials. Excess of jurisdiction- the public respondent exceeds its
power or acts without any statutory authority
Second element: The respondent has acted
without jurisdiction, or in excess of its or his Grave abuse of discretion- such capricious and whimsical
jurisdiction, or with grave abuse of discretion exercise of judgment as to be equivalent to lack or excess
amounting to lack of jurisdiction. of jurisdiction
Excess of jurisdiction vs. Absence of jurisdiction

 This element refers to the jurisdictional errors
committed by the respondent. Excess of jurisdiction Absence of jurisdiction
 Error of judgment that the court may commit An act, though within the Lack or want of legal
in the exercise of its jurisdiction is not general power of a power, right, or authority
correctible through the original special civil tribunal, board, or officer, to hear and determine a
action of certiorari. is not authorized and cause or causes,
 Hence, certiorari will not be issued to cure invalid with respect to the considered either in
errors in proceedings, or correct erroneous particular proceeding general or with reference
conclusions of law or fact and as long as a because the conditions, to a particular matter.
court acts within its jurisdiction, any alleged which alone authorize the
errors committed in the exercise of its exercise of the general Lack of power to exercise
jurisdiction will only amount to errors of power in respect thereof authority.
judgment. Such errors are reviewable by are wanting.
timely appeals and not by the special civil
action of certiorari.
 Clear from Section 1, Rule 65 that a petition Grave abuse of discretion
for certiorari must be grounded on
jurisdictional errors.  For certiorari to lie, the abuse must be “grave, as
 Under Section 1, Rule 65, the act of the when it is exercised arbitrarily or despotically by
tribunal, board, or officer which is the object of reason of passion or personal hostility.” Mere
the petition should constitute errors of abuse of discretion is not enough.
jurisdiction which may be any of the ff:
o Acting without jurisdiction Instances where there is no grave abuse of
o Acting in excess of jurisdiction even if discretion
initially the tribunal, board, or officer  Mere denial of an application for an ex parte order
had jurisdiction for the seizure of evidence where petitioner failed
o Acting with grave abuse of discretion to point out specific instances how the respondent
amounting to lack of jurisdiction or in court supposedly exercised its power in a despotic,
excess of jurisdiction even if the capricious, whimsical manner
tribunal, board, or officer initially had  Where the Court of Appeals dismisses an appeal on
jurisdiction account of petitioner’s failure to file an appellant’s
 Where the issue or question involved affects the brief
wisdom or legal soundness of the decision and not  Where the trial court, in the interest of justice,
the jurisdiction of the court to render said decision, require a full-blown hearing to determine factual
the same is beyond the province of a special civil issues in a land registration case even if the
action for certiorari. petitioner did not comply with some procedural
 Certiorari is a remedy narrow in scope and rules
inflexible in character. It will issue only to correct  When there is a grant or denial of a motion for
errors of jurisdiction, and not errors of judgment. postponement when no substantial rights are
 Any perceived error in the court’s interpretation of affected and the intention to delay is not manifest
the law and its assessment of evidence is  When the court err in applying the facts and the
correctible by appeal, not certiorari, as the same evidence, its erroneous conclusions are mere
would only be considered an error of judgment and errors of judgment and do not rise to the level of
not of jurisdiction. grave abuse of discretion.
 As long as the court has jurisdiction and acts within
the parameters of such jurisdiction, an error Instances where there is grave abuse of discretion
committed by it in the exercise of such jurisdiction
is not a jurisdictional error but a mere error of  When a judge extends by 20 days the 72-hour
judgment. Such error may be one of fact or of law. restraining order he initially issued because in no
The error may be assailed by way of an appeal. case shall the total period of effectivity of the
However, if the court exercises a jurisdiction which temporary restraining order exceed 20 days
it does not initially possess, the error would be an including the 72 hours originally provided
error of jurisdiction correctible by a petition for  Where the trial court fails to determine a factual
certiorari. controversy before issuing a writ of demolition

 When a judge hears a motion on the same day it o A motion for reconsideration may still be
was filed considered as a plain, speedy, and
 When the court order immediate execution of a adequate remedy.
final order without awaiting the expiration of the  The special civil action of certiorari will not lie
period to appeal therefrom and without even a unless a motion for reconsideration is first filed. To
motion having been filed for execution pending warrant a deviation from this rule, one must proffer
appeal a compelling reason.
 When the Executive Labor Arbiter considered the
motion for execution of the petitioner abandoned Exceptions to the requirement of a motion for
and ordered the payment of separation pay even if reconsideration are the following:
the petitioner did not abandon his claim for
 The order is a patent nullity, as where the court a
reinstatement
quo has no jurisdiction.
 Rendering a decision in favor of complainants
 The questions raised in the certiorari proceeding
against the alleged employer without first
have been duly raised and passed upon by the
determining the existence of an employer-
lower court, or are the same as those raised and
employee relations and the failure to express the
passed upon in the lower court.
factual and legal bases of a decision which is an
 There is an urgent necessity for the resolution of
evasion of a constitutional duty
the question and any further delay would prejudice
 When a court allows an uninterested person to
the interests of the government of the petitioner.
intervene in a case
 The subject matter of the action is perishable.
 Manifest disregard of the basic rules and
 Under the circumstances, a motion for
procedures
reconsideration would be useless.
 Ombudsman’s failure to evaluate a criminal
 Petitioner was deprived of due process and there is
complaint in accordance with its own rules
an extreme urgency for relief.
 In a criminal case, relief from order of arrest is
Burden of proof is imposed on the petitioner. urgent and the granting of such relief by the trial
court is improbable.
Third element: Absence of appeal or any plain,  The proceedings in the lower court are a nullity for
speedy, and adequate remedy lack of due process.
 The proceedings were done ex parte or in which
 This element must also be proved for the writ of the petitioner had no opportunity to object.
certiorari to issue.  Where the issue raised is one purely of law.
 Certiorari is not available where the aggrieved  Where public interest is involved.
party’s remedy of appeal is plain, speedy, and  Where there is an urgent necessity for the
adequate in the ordinary course of law, the reason resolution of the question and any further delay
being that certiorari cannot co-exist with an would prejudice the interests of the Government or
appeal, these remedies being mutually exclusive. of the petitioner or the subject matter of the action
 Jurisprudence states that it is the inadequacy, and is perishable.
not the mere absence of all other legal remedies  Where the issue raised is one purely of law or
and the danger of failure of justice without the writ, where public interest is involved.
that must usually determine the propriety of  Where it involves an issue of transcendental public
certiorari. A remedy is plain, speedy, and adequate importance that demands no less than a careful but
if it will promptly relieve the petitioner from the expeditious resolution.
injurious effects of the judgment, order, or  When there are existing circumstances indicating
resolution of the lower court or agency. that there was an urgent need for the immediate
resolution of the case because of the great
Certiorari is allowed despite availability of appeal if
prejudice that it might cause to petitioner
it can be shown that the appeal would be inadequate,
occasioned by any further delay in resolving the
slow, insufficient, and will not promptly relieve a
matters raised.
party from the injurious effects of the order
complained of.
Filing of the petition for certiorari
Necessity for a motion for reconsideration
 The verified petition that the person aggrieved may
 Settled is the rule that, except in some recognized
file is required to:
situations, the filing of a motion for reconsideration
a. Allege the facts with certainty;
is a condition sine qua non to the filing of a petition
b. Pray that judgment be rendered annulling or
for certiorari.
modifying the proceedings of the tribunal,
 Purpose:
board or officer; and
o To afford the public respondent an
c. Grant such incidental reliefs as law and justice
opportunity to correct any actual or
may require.
fancied error attributed to it by way of re-
 The petition shall contain the following:
examination of the legal and factual
a. Full names and addresses of the petitioners
aspects of the case.
and respondents

b. A concise statement of the matters involved The removal of the said paragraph under the amendment
c. The factual background of the case simply meant that there could no longer be any extension
d. The grounds relied upon for the relief prayed of the 60-day within which to file a petition for certiorari.
for. The rationale for the amendments under A.M. No. 07-7-12-
 A special civil action for certiorari may be filed by SC is essentially to prevent the use (or abuse) of the
an aggrieved party alleging grave abuse of petition for certiorari under Rule 65 to delay a case or even
discretion amounting to excess or lack of defeat the ends of justice.
jurisdiction on the part of the trial court.
The term ‘aggrieved’ is construed to include the The new rule under the amendment provides that petitions
State and the private offended party or for certiorari must be filed strictly within 60 days from
complainant. notice of judgment or from the order denying a motion for
reconsideration. However, subsequent pronouncements of
the Supreme Court affirmed the relaxation of the
Other requirements for filing the petition procedural technicalities under A.M. No. 07-7-12-SC in
order to serve substantial justice and safeguard strong
The petition shall be accompanied by: public interest.
a. A certified true copy of the judgment, order or In the case of Labao vs. Flores, the Supreme Court said
resolution subject of the petition, that the 60-day period may be extended under any of the
b. Copies of all pertinent pleadings and documents circumstances:
c. A sworn certification of non-forum shopping.
1. Most persuasive and weighty reasons;
In a, the requirement is that they must be certified true 2. To relieve a litigant from an injustice not
copies. The use of mere photocopies of certified true copies commensurate with his failure to comply with the
of judgments or orders subject matter of a petition renders prescribed procedure;
the petition insufficient in form, and a court commits no 3. Good faith of the defaulting party by immediately
error in dismissing said petition. In b and c, mere paying within a reasonable time from the time of
photocopies may be attached to the petition. the default;
4. The existence of special or compelling
The party aggrieved must also attach a sworn
circumstances
certification of non-forum shopping.
5. The merits of the case;
Material dates in the petition; “material date rule” 6. A cause not entirely attributable to the fault or
negligence of the party favored by the suspension
Under the material date rule, the following material dates of the rules;
must be stated in the petition: 7. A lack of any showing that the review sought is
merely frivolous and dilatory;
a. When notice of judgment, final order, or resolution 8. The other party will not be unjustly prejudiced
subject of the petition was received; thereby;
b. When a motion for new trial or reconsideration was 9. Fraud, accident, mistake, or excusable negligence
filed, if any; and without appellant’s fault;
c. When notice of the denial of the motion for new 10. Peculiar legal and equitable circumstances
trial or reconsideration was received. attendant to each case;
11. In the name of substantial justice and fair play;
Purpose: To determine the timeliness of the petition. 12. Importance of the issues involved; and
13. Exercise of sound discretion by the judge guided
by all the attendant circumstances.
When to file petition; extension generally prohibited
 There should be an effort on the part of the party
General rule: The petition is to be filed not later than 60 invoking liberality to advance a reasonable or
days from notice of the judgment, order, or resolution, or meritorious explanation for his/her failure to comply
from notice of the order denying the motion for with the rules.
reconsideration or new trial (Section 4, Rule 65, Rules of  Where there is no showing of any exceptional
Court). circumstance that may rationalize a digression from the
rule on timeliness of petitions, the period mandated by
The 60-day period starts from notice to the counsel, if a the rule must be observed.
litigant is represented by counsel. Notice to him is
considered notice to the party.
A.M. No. 07-7-12-SC, effective December 27, 2007, Court where the petition is filed
deleted the last paragraph of Section 4, Rule 65 which
provided that, “No extension of time to file the petition shall  RTC- if the petition relates to the acts or omissions
be granted except for the most compelling reason and in no of a municipal trial court or corporation, board,
case exceed 15 days.” officer of person
 CA only- if it involves the acts or omissions of a
quasi-judicial agency

 Sandiganbayan Filing of petition does not stay proceedings;

o Old rule: Petition may be filed with the SB necessity for a writ of injunction
if it is in aid of its appellate jurisdiction.
o Amendment under A.M. 07-7-12-SC: Question: If a petition for certiorari is filed with a higher
Petition may be filed with the SB whether court against an alleged grave abuse of discretion
or not the same is in aid of its appellate committed by a lower court in the course of its proceedings,
jurisdiction. may the court below suspend its proceedings in deference
 Comelec (exclusively and in aid of its appellate to the higher court?
jurisdiction)- in election cases involving an act or
Answer: No. The filing of a petition for certiorari does not
omission of a Municipal or Regional Trial Court
interrupt the course of the principal action, unless an
“In aid of its appellate jurisdiction”- if a court has application for a temporary restraining order or a writ of
jurisdiction to review, by appeal or writ of error, the final preliminary injunction is granted by the higher court
orders or decisions of the lower court. (Section 7, Rule 65).
Rationale: A petition for certiorari is an original action and

not a continuation of the proceedings in the lower court.
Observance of the “hierarchy of court” principle Consequently, the petition is actually not concerned with
the merits of the case below.
The SC, CA, and RTC have concurrent jurisdiction to issue
writs of certiorari, prohibition, mandamus, quo warranto, Hence, a mere filing of a petition for certiorari with a higher
habeas corpus, and injunction. There is an ordained court before the defendant files and serves his answer to
sequence of recourse to courts vested with concurrent the complaint, does not stop the running of the period
jurisdiction, beginning from the lowest, on to the next within which to file an answer to the complaint filed with
highest level, and ultimately to the highest. This hierarchy the lower court.
is determinative of the venue for appeals, and the proper
forum for petitions for extraordinary writs. A direct ILLUSTRATION:
invocation of the SC’s original jurisdiction to issue said writs
should be allowed only when there are special and Facts: here the defendant filed a motion to dismiss the
important reasons therefor, clearly and specifically set out complaint on the ground of failure to state a cause of
in the petition. action. It was denied by the RTC. MR was also denied.
Defendant then filed a petition for certiorari with the CA.

Pending this, the plaintiff filed a motion to declare
Parties to the petition defendant in default for failure to file an answer within
the reglementary period.
 The petition shall be filed by the “person
aggrieved.”
Issue: Would the RTC be in error if it declares the
 “Person aggrieved” pertains to the person who was
defendant in default?
a party in the proceedings before the lower court.
 Where the petition relates to the acts or omissions
Ruling: No.
of a judge, court, quasi-judicial agency, tribunal,
corporation, board, officer or person, the petitioner
The running of the period to file an answer was not
shall join as private respondents with the public
interrupted because the defendant did not avail of a writ
respondent, persons interested in sustaining the
of preliminary injunction when he filed the petition for
proceedings in the court.
certiorari (Diaz vs Diaz, 331 SCRA 302).
Duty of private respondent
Settled is the rule that to arrest the course of the
 Appear and defend not only in his own behalf but principal action during the pendency of certiorari
also in behalf of the public respondent affected by proceedings, there must be a restraining order or a wit
the proceedings of preliminary injunction from the appellate court
 If costs are awarded in favor of the petitioner, such directed against the lower court (People vs Almendres,
costs shall be against the private respondent only 401 SCRA 555).
and not against the public respondent.
JUDICIAL COURTESY IS NOT THE PREVAILING

RULE; EXCEPTION
Public respondent; appearance not required;
exception
1. Common Practice: Lower Court to suspend the
General rule: The public respondent is not mandated to proceedings of the principal case pending before it
appear in, or file an answer or comment to the petition or whenever a petition for certiorari is filed against it.
any pleading. It usually invokes judicial courtesy.
Exception: Unless specifically directed by the court where With the amendment: lower court or tribunal,
the action is pending. which is the object of the petition for certiorari, can

no longer conveniently use judicial courtesy as an 1. Mere filing of a petition for certiorari does not
excuse in deferring the proceedings. interrupt the court of the principal case. (RULE 65
Section 7)
GR: It has to proceed with the principal case within Exception: unless the lower court or tribunal is
the required period restrained from proceeding with the case:
 Either by a temporary restraining order or;
Exception: It is prevented from doing so by a  Writ of preliminary injunction issued by the
temporary restraining order or a write of court in which the petition for certiorari is filed.
preliminary injunction
2. By virtue of the amendment (A.M No. 07-7-12 SC)
Under the new rule: public respondent has the
duty to proceed with the principal case within 10  CA, Sandiganbayan or CTA that issued the
days from the filing of the petition for certiorari preliminary injunction against the lower court,
with a higher court or tribunal, absent a temporary tribunal, board, officer or quasi judicial agency
restraining order or a writ of preliminary injunction, shall decide the main case or petition within 6
or upon its expiration. months from the issuance of the writ. (RULE 65
Section 5)
Failure of the public respondent to proceed with the

principal case may be a ground for an ORDER TO COMMENT
administrative charge.
1. Ordinary Civil Action – issuance and service of
2. Section 7. Expediting proceedings; injunctive summons follow the filing of the complaint
relief. — The court in which the petition is filed may
issue orders expediting the proceedings, and it Petition for Certiorari – no summons is issued
may also grant a temporary restraining order or a
writ of preliminary injunction for the preservation 2. The court: (RULE 65 Section 6)
of the rights of the parties pending such  Instead of a summon
proceedings. The petition shall not interrupt the  Shall issue an order requiring respondent to
course of the principal case unless a temporary comment on the petition
restraining order or a writ of preliminary injunction o Within 10 days from the receipt of a
has been issued against the public respondent from copy of the petition
further proceeding in the case. (7a)
 Order to comment shall be issued only if the
There are instances where, even if there is no writ court finds that the petition is sufficient in form
of preliminary injunction or temporary retraining and substance.
order issue by the higher court, it would be proper o Petition may be dismissed if found not
for a lower court or court of origin to suspend its to be sufficient in both form and
proceedings on the precept of judicial courtesy, substance
However, Judicial Courtesy remains to be the Determination of the completeness or sufficiency

exception. of the form of the petition (including relevant and
pertinent documents which have to be attached to
DE LEON vs. PEA it
 Left to the discretion of the court taking
The precept of judicial courtesy should not be cognizance of the petition
applied indiscriminately and haphazardly if we
are to maintain relevel of Sec. 7 Rule 65. If petition is insufficient in form and substance
 May be dismissed without further proceedings
3. To justify the suspension of the proceedings before
the lower court even without an injunctive writ or
order from the higher court: 3. The order to comment shall:
 be served together with a copy of the petition
 Judicial Courtesy may still apply : and the annexes thereto.
o “if there is a strong probability that  That is the comment that shall be filed by the
the issues before the higher court respondent (not a motion to dismiss)
would be rendered moot and
moribund as a result of the 4. In petition for certiorari before the SC and the CA
continuation of the proceedings in the  Provisions of Rule 56 section 2 shall be
lower court.” observed
DUTY OF THE COURT WHICH ISSUES THE RULE 56 Section 2. Rules applicable. —
PRELIMINARY INJUNCTION The procedure in original cases for
certiorari, prohibition, mandamus, quo
warranto and habeas corpus shall be in

accordance with the applicable provisions of  Unless if finds a hearing

the Constitution, laws, and Rules 46, 48, 49, necessary
51, 52 and this Rule, subject to the following
provisions: GROUNDS FOR DISMISSAL OF THE PETITION;
UNMERITORIOUS PETITIONS
a) All references in said Rules to the
Court of Appeals shall be 1. Court may dismiss the petition on the following
understood to also apply to the reasons
Supreme Court;
a. The petition is found to be patently without
b) The portions of said Rules merit;
dealing strictly with and specifically b. The petition is prosecuted manifestly for
intended for appealed cases in the delay; or
Court of Appeals shall not be c. The question raised in the petition are too
applicable; and unsubstantial to require consideration (RULE
65 Section 8)
c) Eighteen (18) clearly legible

copies of the petition shall be filed, 2. In the even of dismissal of unmeritorious petitions,
together with proof of service on all the court may:
adverse parties.
 Award in favor of the respondent treble costs
The proceedings for disciplinary action solidarily against the petitioner and counsel
against members of the judiciary shall be o In addition to subjecting the counsel
governed by the laws and Rules prescribed to administrative sanctions under Rule
therefor, and those against attorneys by 139 and 139-B of the Rules of Court.
Rules 139-B, as amended. (n)  May impose motu proprio, based on res ipsa
loquitur, other disciplinary sanctions or
The court may: (RULE 65 Section 6) measures on earring lawyers for patently
 Before giving due course dilatory and unmeritorious petitions for
 May require the respondents to file their certiorari
comments to and not a motion to dismiss, the
petition SERVICE OF COPY OF JUDGEMENT TO PUBLIC
 Thereafter, may require the filing of a reply RESPONDENT
and such other responsive or other pleadings
as it may deem necessary and proper. Certified copy of the judgment render in the certiorari
proceeding:
PROCEEDINGS AFTER COMMENT; JUDGEMENT  Shall be served upon the court, quasi-judicial
agency, tribunal, corporation, board, officer or
1. After the comment or other pleadings are filed (or person concerned in such manner as the court
the time to file the same has expired: may direct (RULE 65 section 9)
 The court has the following options: CONTEMPT FOR DISOBEDIENCE

o Hear the case, or
o Require the parties to submit a Disobedience to the judgment or order
memorandum. (RULE 65 Section 8)  Shall be punished as contempt (RULE 65 section 9)
2. If after such hearing or submission of memoranda RELIEF

(or upon the expiration of the period for filing the The primary relief:
same:  The annulment or modification of the
judgment, order, resolution or proceeding
 The court shall: subject of the petition.
o Render judgment for the relief prayed It may also include:

for or to which the petitioner is  Other incidental reliefs as the law and justice
entitled may require (RULE 65 section 1)
o To be done if the court finds that the
allegation of the petition are true (RULE The court, in its judgement:
65 Section 8)  May also award damages
 The execution of the award for damages or
 The court need not conduct a hearing costs shall follow the procedure in (RULE 65 section
9)
o Instead, may require the filing of the

memoranda REVIEW OF JUDGMENT IN A CERTIORARI PETITION

1. Decision of a court in a petition for certiorari in Rule DISTINCTION BETWEEN CERTIORARI UNDER RULE
65 64 AND CERTIORARI UNDER RULE 65
 Is reviewable by appeal because certiorari is
an original action CERTIORARI IN RULE CERTIORARI IN RULE
64 65
Example: The decision of the CA in a petition for Is directed only against the Is directed against other
certiorari filed before it is appealable to the SC by judgment, final orders or entities or offices which
way of a petition for review on certiorari under Rule resolutions of the refer to any tribunal,
45. COMELEC and COA board, or officer exercising
judicial or quasi- judicial
Under Rule 56 section 3, an appeal to the SC may function
be taken ONLY by a petition for review on is within 30 days from Is filed within 60 days from
certiorari. notice of judgment, final notice of judgment, final
order or resolution order or resolution sought
2. Following the same principle above, the decision of to be reviewed
the RTC in a petition for certiorari under Rule 65 The filing of a motion for The period within which to
 Appealable to the CA reconsideration or new file the petition, if the
o By way of a notice of appeal not a trial, if allowed, interrupts motion for reconsideration
petition for review under Rule 42 the period for the filing of a or new trial is denied, is
o This is because the decision of the RTC petition for certiorari. still a fresh-period of 60
in a petition for certiorari is one made days from notice of the
in the exercise of its original If the motion is denied, the denial of the motion
jurisdiction aggrieved party may file
the petition within the
Under the current rules remaining period but not
 Notice of appeal is to be made pursuant to Rule less than 5 days reckoned
41 from the notice of denial.
LIBERAL CONSTRUCTION; WHEN A RULE 45 EXAMPLES OF SITUTATION WHERE CERTIORARI IS

PETITION IS CONSIDERED AS A RULE 65 PETITION A REMEDY
AND VISE-VERSA
1. Order denying a petition for relief is not appealable
In many instances, court has treated a petition for review under the terms of Rule 41 Section 1(a), as
on certiorari under Rule 45 as a petition for certiorari under amended.
Rule 65.  The remedy is appropriate special civil action
 This happens in cases where the subject of the under Rule 65 and one remedy under the said
recourse is one of jurisdiction or the act rule is certiorari
complained of is perpetrated by a court with
grave abuse of discretion amounting to lack or 2. An order dismissing an action without prejudice
excess of jurisdiction may be subject of a petition for certiorari. But an
o But when the petition denominated as order dismissing an action with prejudice is
Rule 45 petition neither involves any  appealable and not a proper subject of a
issue on jurisdiction nor a grave abuse petition for certiorari
of discretion on the part of the CA
 It should be dismissed And order dismissing a complaint for failure to
outright. comply with the rules on certification against forum
shopping
In accordance with the liberal spirit pervading the  is a dismissal with prejudice
Rules of Court and in the interest of substantial  Under Rule 41 Section 1(g) as amended
justice o such dismissal is not appealable, the
 The court has treated a petition for certiorari remedy being the appropriate special
under Rule 45 particularly: civil action under Rule 65
1. If the petition for certiorari was filed
within the reglementary period within 3. A denial of a motion to dismiss for lack of
which to file a petition for review on jurisdiction over the subject matter and the denial
certiorari of a motion for reconsideration of the order of
2. When errors of judgement are denial (both of which are interlocutory orders)
averred; and  May be subject to certiorari where the denial is
3. When there is sufficient reason to obviously in the error
justify the relaxation of the rules as  Hence, may be interpreted as a grave abuse of
when there is a significant issue of discretion amounting to lack of jurisdiction
jurisdiction.
4. Under the 2000 National Prosecution Service Rules
on Appeal

 A resolution of the Justice Secretary affirming, G.R No. 182153 | April 7, 22014
modifying or reversing the resolution of the
Investigating prosecutor is final The trial court’s denial of the motion to dismiss is not a
o There is no more judicial appeal or license for the defendant to file a Rule 65 petition.
other remedy in the ordinary course of
law An order denying a motion to dismiss cannot be subject
o Proper remedy is certiorari under Rule of a petition for certiorari as the defendant sill has an
65 adequate remedy before the trial court, i.e to file an
answer and to subsequently appeal the case if he loses
While a judgment or final order of the CA on the the case.
petition for certiorari against the Secretary of
Justice As exceptions, the defendant may avail of a petition for
 reviewable by the SC by a petition for review certiorari if the ground raised in the motion to dismiss is
on certiorari under Rule 65 (Rule 45 section 1) lack of jurisdiction over the person of the defendant or
over the subject matter.
5. A petition for certiorari filed by a city mayor before
the CA in order to nullify the preventive suspension
order issued by the Ombudsman SOME PROCEEDINGS WHERE CERTIORARI IS NOT
 is in order because the order of suspension is AVAILABLE
an interlocutory order
o hence, unappealable
1. If there is appeal, or a plain, speedy and adequate
6. Resolution of the Ombudsman in preliminary remedy in the ordinary course of law (Sec. 1, Rule 65, Rules
investigations of criminal cases are reviewable by of Court).
the SC
 an appeal, if available, must be taken even if the
7. The remedy of a party aggrieved by the decision of ground relied upon is grave abuse of discretion
the NLRC (Philippine Electric Corporation vs CA, G.R No.
 is to promptly move for the reconsideration of 168612, Dec. 10, 2014)
the decision
2. If complaint is dismissed on the following grounds below,
 if denied, to timely file a special civil action for
such dismissal shall bar the refiling of the same action or
certiorari under Rule 65 within 60 days from
claim
notice of the decision
a) Res judicata
In LABOR DISPUTES b) Prescription
 grave abuse of discretion may be ascribed to c) Extinguishment of the obligation
the NLRC when its findings and conclusions are d) Unenforceability under the statute of frauds
not supported by substantial evidence
 The remedy is to appeal, not certiorari (Sec. 5.
8. A judgment, resolution, or final order of the COA Rule 41, Rules of Court)
 may be brought by the aggrieved party to the
SC in certiorari under Rule 65
Note: if the complaint is dismissed on the ground of
9. A judgment, resolution or final order of the COA the following the remedy is Rule 65 which includes certiorari
 may be brought by the aggrieved party to the (Sec 1, Rule 41)
SC on certiorari under Rule 65 by filing the
petition within 3o days from notice a) Lack of jurisdiction over the subject matter or
improper venue; or
10. An interlocutory order of a court b) On grounds which do not preclude the refiling of
 is reviewable by a petition for certiorari the complaint, such dismissal is one without
prejudice hence not appealable
Note: An order denying a motion to dismiss on the ground
of lack of jurisdiction over the subject matter is an 3. Petitions for certiorari, prohibition and mandamus are
interlocutory order not available against an interlocutory order in certain
cases like:
GR: when a motion to dismiss is denied, the movant shall a) Petition for a writ of amparo
file his answer and to appeal later from an adverse b) Petition for a writ of habeas data
judgment c) Small claims cases (Sec. 14g, A.M no. 08-8-7-SC);
d) Cases governed by the Rules on Summary
Except: when denial is tainted with grave abuse of Procedure
discretion, certiorari may lie. e) In forcible entry and detainer cases and detainer
cases (Sec. 13, Rule 70, Rules of Court)
Tung Hu Steel vs Ting Guan Trading

Note: Although a petition for certiorari is prohibited in  officer

cases subject to summary procedure, the court in the case
of Go vs CA, allowed the petition because the trial court 4. Function is to prevent the unlawful and oppressive
gravely abused its discretion by indefinitely suspending the exercise of the legal authority and to provide for a fair and
proceedings in ejectment case acting contrary to the orderly administration of justice (Spouses Yusay vs CA, 647
purposes of the Rules on Summary Procedure (Go vs CA, SCRA 269).
297 SCRA 574).
CERTIORARI PROHIBITION
4. In cases where the purpose of the petition for certiorari corrective remedy preventive remedy
is to question the merits of an arbitral award (Rule 19.7, purpose is to secure a to keep a lower court
Special ADR Rules) judgment annulling or within the limits of its
modifying the proceedings jurisdiction.
5. Decisions and final orders of the Sandiganbayan shall be
of a court or tribunal.
appealable to the Supreme Court by way of a petition for
review on certiorari under Rule 45 raising pure questions of petition is directed against respondent may be one
law and NOT Certiorari under Rule 65 (Sec. 1 Rule 45 Rules one exercising judicial or exercising not only judicial
of Court; People vs Espinosa, 409 SCRA 256). quasi-judicial functions or quasi-judicial functions
but also ministerial
6. Decisions of the Court of Appeals shall be appealable to functions
the Supreme Court by way of a petition for review on
certiorari under Rule 45 raising pure questions of law NOT
Rule 65 (Sec. 1 Rule 45 ROC) Example: A motion to dismiss a complaint for lack of
jurisdiction over the subject matter is denied in a manner
7. Decisions of the Court of Tax Appeals en banc shall be clearly showing grave abuse of discretion and despite a
appealable to the Supreme Court by way of a petition for Motion for Reconsideration of the order of denial, a
review on certiorari under Rule 45 raising pure questions of Petition for Certiorari and prohibition would be proper to:
law NOT Rule 65 (Sec. 1 Rule 45 ROC)  Annul the order of the court – Certiorari
 And for the lower court to desist from further
8. A court order denying a motion for the issuance of a writ proceeding in the action – Prohibition
of possession (being a final order).
 Proper remedy to obtain a reversal of judgment on

the merits, final order or resolution is appeal even In the case of Araullo vs Aquino III (GR No, 209287,
if error ascribed to the judgment is lack of July 2014) the court said that prohibition lies against
jurisdiction over subject matter or in the exercise judicial or ministerial functions, but not against
of the power in excess thereof (Nuque vs Aquino, legislative or quasi-legislative functions.
G.R No. 193058)
Take note that the same case expanded the reach of
both petitions for certiorari and prohibition. The Court
B. PROHIBITION (RULE 65)
ruled that with respect to the Court, the writ of certiorari
and prohibition may also apply to UNDO and
PURPOSE AND FUNCTION OF THE ACTION RESTRAIN any act of grave abuse of discretion
1. There are two special civil actions for determining and amounting to lack or excess if jurisdiction by any
correcting grave abuse of discretion amounting to lack or branch or instrumentality of the Government, even
excess of jurisdiction – CERTIORARI and PROHIBITION if the latter does not exercise judicial, quasi-judicial or
under Rule 65 ministerial functions.
 Rule 64 is applicable only to judgments and final The court likewise held that the petitions for certiorari
orders or resolutions of the COMELEC and the and prohibition are appropriate remedies to raise
Commission on Audit constitutional issues and to review and/or prohibit or
nullify the acts of legislative and executive
2. PROHIBITION – is an extraordinary writ of departments.
commanding a tribunal, corporation, board, officer or
person, whether exercising functions that are judicial,
quasi-judicial or ministerial to desist from further 5. A petition for Prohibition is a proper remedy to prohibit
proceedings when conducted: acts of executive officials that amount to usurpation of
legislative authority.
 without or in excess of its jurisdiction, or
 with grave abuse of discretion.  There are times when a petition for declaratory
relief is treated by the court as a petition for
3. Purpose is to prevent an encroachment, excess, prohibition.
usurpation or assumption of jurisdiction on the part of a:
In Diaz vs Secretary of Finance (654 SCRA 96),
 tribunal assailing the validity of the impending imposition of VAT,
 corporation an issue was raised on whether or not the Court correctly
 board, or

treated a petition for declaratory relief as one for PROHIBITION IS AN ORGINAL ACTION
prohibition.
A special civil action of prohibition is an original and
The Court ruled that there are precedents for treating a independent action and not merely a continuation or a part
petition for declaratory relief as one for prohibition if the of the trial resulting in the rendition of the judgment or
case has far-reaching implications and raises pure order complained of.
questions that need to be resolved for the public good.
 Hence, like an original action, the decision of a
lower court on a petition for prohibition filed before
The Court also held that a Petition for Prohibition is a
it, is appealable.
proper remedy to prohibit or nullify acts of executive
officials that amount to usurpation of legislative
authority.
AVAILABILITY OF OTHER REMEDIES PRECLUDES
The Court waived the technical requirements when legal RESORT TO PROHIBITION
questions to be resolved are of great importance to the
public. If the petitioner has another remedy like appeal, such fact
is generally held to be sufficient reason for denying the
issuance of the writ (Delta Development vs HLURB, 564
CERTIORARI PROHIBITION SCRA240).
petition is directed against respondent may be one
one exercising judicial or exercising not only judicial
quasi-judicial functions or quasi-judicial functions
PREMATURE RESORT TO PROHIBITION
but also ministerial
functions In Spouses Yusay vs CA (647 SCRA 269), the Supreme
Court said that remedy of prohibition is not available
against a mere resolution expressing the desire of a
a) JUDICIAL FUNTION – when he has the power to Sangguniang Panlungsod to expropriate property.
determine what the law is and what the legal rights
of the parties are, and then undertakes to  The Court said that it would be premature for the
determine these questions and adjudicate upon the petitioners to mount any judicial challenge against
rights of the parties the resolution because the power of eminent
domain would be exercised by the City only though
b) QUASI-JUDICIAL FUNTION – applies to action the filing if a verified complaint with the proper
and discretion of a public administrative officers or court.
bodies which are required to investigate facts or PROHIBITION vs CERTIORARI
ascertain the existence of facts, hold hearings, and
draw conclusions from them as a basis for their Subject to the expanded concept of both petitions:
official action and to exercise discretion of a judicial
nature. PROHIBITION CERTIORARI
c) MINISTERIAL FUNCTION – an officer or tribunal

performs in the context of a given set of facts, in a Directed not only against a Seeks to annul acts of a
prescribed manner and without regard for the respondent exercising respondent performing
exercise of his/its own judgment upon the judicial or a quasi-judicial judicial or quasi-judicial
propriety or impropriety of the act done. functions but even against functions.
one exercising ministerial
REQUISITES FOR A WRIT OF PROHIBITION functions.
1. The impugned act must be that of a tribunal,
corporation, board or person exercising judicial,
Directed against the A writ of certiorari is
quasi-judicial, or ministerial functions
TRIBUNAL itself directed against the
2. The tribunal, corporation, board or person must
commanding it to desist ACTION of the court which
have acted without or in excess of jurisdiction or
from further proceeding is sought to be annulled.
with grave abuse of discretion amounting to lack of
with the case.
jurisdiction
3. There is no appeal or any other plain, speedy, and
adequate remedy in the ordinary course of law To COMMAND the To annul or modify the
4. Petition for Prohibition shall be accompanied by respondent to desist from judgment, order,
o Certified true copy of the judgment or further proceedings. resolution or proceedings
order subject of the petition of the public respondent.
o Copies of all pleadings and documents
relevant and pertinent thereto
o Sworn Certificate of Non-Forum Shopping

Note: Prohibition, NOT mandamus, is a proper remedy a.) Any tribunal, corporation, board, officer, or
when a motion to dismiss is WRONGFULLY denied. person
unlawfully neglects the performance

of an act which the law specifically enjoins
OBSERVANCE OF THE HIERARCHY OF THE COURTS as a duty resulting from an office, trust or
station.
Filing of a petition requires the observance of the hierarchy
of courts. b.) It may also be filed when
EXAMPLE: SC, CA and RTC have ORIGINAL, any tribunal, corporation, board, or officer
CONCURRENT Jurisdiction to issue writs of certiorari, or person unlawfully excludes another
prohibition and mandamus, if what is assailed relates to from the use and enjoyment of a right or
acts or omissions of a lower court or of a corporation, office to which such other is entitled.
board, officer or person, the petition must be filed in the
NOTE: Act or duty must be ministerial. Not discretionary.
RTC exercising jurisdiction over the territorial area as
defined by the Court.
PRAYER IN A PETITION FOR MANDAMUS
a.) That judgment be rendered commanding the

MANDAMUS
respondent to do the act required to be done to protect the
rights of the petitioner; and
b.) That the respondent pays the damages sustained by

NATURE AND PURPOSE OF MANDAMUS
the petitioner by reason of the wrongful acts of the
1.) Mandamus is an extraordinary writ commanding a respondent.
tribunal, corporation, board, officer or person to do
an act required to be done as in the following:
a.) When it or he unlawfully neglects the REQUISITES FOR MANDAMUS:
performance of an act which the law
specifically enjoins as a duty, and there is a.) The plaintiff has a clear legal right to the act
no other plain, speedy and adequate demanded. It will never be issued in doubtful cases
remedy in the ordinary course of law. because it does not establish a right, it merely
b.) When one unlawfully excludes another enforces one.
from the use and enjoyment of a right
or office to which such other is entitled b.) It must be the duty of the defendant to perform
and there is no other plain, speedy and the act because the same is mandated by law;
adequate remedy in the ordinary course of
law. c.) The defendant unlawfully neglects the
performance of the duty enjoined by law;
2.) The principal function of mandamus is to d.) The act to be performed is ministerial, not
command, NOT to inquire, expedite or to discretionary; and
adjudicate. e.) There is no appeal or any other plain, speedy,
a.) The writ of mandamus will not issue to and adequate remedy in the ordinary course of
compel an official to do anything which is law.
not his duty to do or which it is his duty
not to do, or to give to the applicant
anything to which he is not entitled by law.
b.) Nor will mandamus issue to enforce a right Existence of a clear legal right
which is in substantial dispute or as to
which a substantial doubt exists. 1.) For a writ of mandamus to be issued, it is essential
that petitioner should have a clear legal right to the
thing demanded and it must be the imperative duty
3.) Mandamus shall issue when any tribunal, of the respondent to perform the act required.
corporation, board, officer, or person unlawfully
neglects the performance of an act which the law
specifically enjoins as a duty resulting from an 2.) The writ of mandamus can be awarded only when
office ,trust or station, NOT to direct the exercise the petitioner’s legal right to the performance of
of a judgment or discretion in a particular way. the particular act, which is sought to be compelled,
is clear and complete.
4.) A petition for mandamus may be filed when:

3.) For mandamus to issue, it is essential that the b.) To follow the proper procedure for the
person petitioning for it has a clear legal right to discharge of these persons in order that
the claim sought. It will not issue to enforce a right, they may be utilized as prosecution
or to compel compliance with a duty, which is witnesses.
questionable or over which a substantial doubt
exists. Thus, unless the right to relief sought is Same with the Ombudsman.
unclouded, it will be denied.
10.) To compel the performance of an act
prohibited by law.
Ministerial Act Discretionary Act

11.) Reconstitution, as it is not a ministerial
One which an officer or Law imposes a duty upon a task.
tribunal performs in a public officer and gives him
given state of facts, in a the RIGHT TO DECIDE how
prescribed manner, in or when the duty shall be 12.) To order the court to decide in a particular
obedience to the mandate performed. (Discretion) manner and for or against a litigant.
of a legal authority,
without regard to or the
WHEN MANDAMUS MAY LIE:
exercise of his own
judgment upon the 1.) To compel execution of judgment;
propriety or impropriety of 2.) When a municipality fails or refuses, without
the act done. justifiable reason, to effect payment of a final
money judgment rendered against it. To compel
the enactment and approval of the necessary
appropriation ordinance.
EXAMPLES WHEN MANDAMUS DOES NOT LIE: 3.) When the court refuses to accept an amendment
of a pleading as a MATTER OF RIGHT.
1.) Mandamus will not lie to control the discretion of a 4.) When JBC has to submit to the president the list of
judge or compel him to decide a motion pending nominees to fill a vacancy in the SC in order to
before him in a particular way. Only to compel him enable the President to appoint one of them within
to TAKE ACTION; 90-days.
2.) Mandamus may not issue to compel an official to a.) However, the selection of the candidates
do anything that is NOT his duty to do so, or that whose names will be in the list to be
is his duty not to do, or to obtain for the petitioner submitted to the president lies within the
anything to which he is NOT entitled to by law; discretion of JBC.
3.) Mandamus is not proper against a government
school or an official with a duty that involves the
exercise of discretion like matters of admission of WHEN MANDAMUS MAY LIE TO COMPEL
students; DISCRETIONARY ACTS
4.) Mandamus will not also lie to compel an academic
institution to allow the graduation of a student who General rule: When act sought to be performed involves
has failed to comply with the academic rules; discretion, the respondent may only be directed by
5.) Mandamus is not available to compel a school to mandamus to act but not to act in one way or another.
confer upon a graduate his degree with honors;
6.) Mandamus is not available to confer degrees at the Exception: In cases where there is gross abuse of
PMA, grant awards, and commission officers in the discretion, manifest injustice, or palpable excess of
military services as these are discretionary pacts authority.
on the part of the President as the AFP
Commander-in-Chief.
7.) Mandamus is not available for any claim for re- CONTRACTUAL OBLIGATIONS NOT COMPELLABLE BY
correction or revision of examination by the PRC. MANDAMUS
8.) Where administrative remedies are available.
However, if questions raised are purely legal, Mandamus cannot be availed of as a remedy to enforce the
exhaustion of administrative remedies is not performance of a CONTRACTUAL OBLIGATION.
required.
9.) To compel a prosecutor to file an information.
However, mandamus lies to compel a
NATURE OF THE JUDGMENT IN MANDAMUS
prosecutor who refuses to:
1.) A favorable judgment rendered in a special civil
a.) Include in the information certain
action for mandamus is in the nature of a special
persons, whose participation in the
judgment. As such, it requires the performance of
commission of a crime clearly appears;
any act other than the payment of money or the
and
sale or delivery of real or personal property the

execution of which is governed by Sec. 11, Rule 39

of the Rules of Court. issuance of a writ the issuance of
of kalikasan a writ of
continuing
2.) The respondent who receives an adverse judgment mandamus
shall be ordered to perform the act required to be
done to protect the rights of the petitioner and to
pay the damages sustained by the petitioner by According It is sufficient that the It is necessary that
reason of the wrongful acts of the respondent. to Riano petition is filed by a the petition be
person who filed by one
represents the personally
DECLARATORY RELIEF TREATED AS MANDAMUS inhabitants aggrieved by the
prejudiced by the unlawful acts or
The court may treat a petition for declaratory relief as one environmental omissions of the
for mandamus if the issue involved has far-reaching damage subject of the respondent.
implications. petition.
As to Available against an Directed against

WRIT OF CONTINUING MANDAMUS AND WRIT OF Subject unlawful act or
KALIKASAN Matter omission of a public
official or employee, or
[a] the unlawful
private individual or
WRIT OF CONTINUING MANDAMUS - A writ issued by a neglect in the
entity, involving
court in an environmental case directing any agency or performance of an
environmental
instrumentality of the government or officer thereof to act specifically
damage of such
perform an act or series of acts decreed by final judgment enjoined by law in
magnitude as to
which shall remain effective until judgment is fully satisfied. connection with
prejudice the life,
the enforcement/
health or property of
violation of an
inhabitants in two or
envt’l rule or
WHEN WRIT IS AVAILABLE more cities or
provinces.
1.) The writ is available when any agency,
instrumentality of the government or officer [b] the unlawfully
thereof; exclusion of
a.) Unlawfully neglects the performance of an another from the
act which the law specifically enjoins as a use or enjoyment
duty resulting from an office, trust or of such right and in
station in connection with the enforcement both instances,
or violation of an environmental law rule there is no other
or regulation or a right therein; or plain, speedy and
b.) Unlawfully excludes another from the use adequate remedy
or enjoyment of such rights; in the ordinary
course of law.
2.) In any case, there must be a showing that there is
no other plain, speedy, and adequate remedy in As to who [1] natural and Only persons
the ordinary course of law. may file juridical persons; personally
aggrieved by the
unlawful act or
WHO MAY FILE THE PETITION
omission may ask
[2] entities authorized
The person aggrieved by the unlawful acts or omissions of from a WRIT OF
by law; and public
the respondent. CONTINUING
organizations, non-
MANDAMUS.
government
organizations and
public interest groups
WRIT OF KALIKASAN on behalf of persons
whose right to a
vs.
balanced and healthful
WRIT OF CONTINUING MANDAMUS ecology is violated or
threatened to be
violated.
PETITION for the PETITION for

a.) Regional Trial Court exercising jurisdiction

As to who The respondent in a In a petition for over the territory where the actionable neglect or
the petition for WRIT OF WRIT OF
omission occurred;
responden KALIKASAN may be CONTINUING
t is: public or private MANDAMUS, the b.) Court of Appeals; or
individual or entity. respondent may
be the c.) Supreme Court
Government or its
officers.
Note: NO DOCKET FEES
As to A petition for WRIT OF A petition for WRIT
 There are no docket fees to be paid.
venue: KALIKASAN may be OF CONTINUING
filed with the Supreme MANDAMUS may ACTION OF THE COURT WHEN PETITION IS FILED
Court or the Court of be filed with the
Appeals. Regional Trial When the petition is duly filed, the court may:
Court exercising
territorial a.) Issue such orders to expedite the proceedings;
jurisdiction, or the and
Court of Appeals,
b.) Also grant a Temporary Environmental
or the Supreme
Protection Order (TEPO) for the preservation of the
Court.
rights of the parties pending such proceedings.
As to use The rule on WRIT OF The rule on

of KALIKASAN mentions CONTINUING The TEPO is granted if it appears that the matter is of
discovery ocular inspection and MANDAMUS EXTREME URGENCY and the applicant will suffer grave
measures: production or mentions no injustice and irreparable injury.
inspection order. discovery
measures.
ORDER TO COMMENT
As to Award of damages is Award of damages
award of NOT allowed under the is allowed under If the petition is sufficient in form and substance, the court
damages: rule on WRIT OF the rule on shall issue the writ and require the respondent to comment
KALIKASAN. CONTINUING on the petition within 10 days from receipt of a copy
MANDAMUS. thereof.
Such order shall be served on the respondents in such

As to Both are exempt from payment of docket manner as the court may direct, together with a copy of the
payment fees. petition and any annexes thereto.
of docket
Writ is issued as a matter of course if the petition is
fees:
sufficient in form and substance.
FORMS AND CONTENTS OF THE PETITION PROCEEDINGS AFTER COMMENT IS FILED
1.) It shall be verified. 1.) After the comment is filed or the time for filing has
2.) It shall: expired, the court has options to:
a.) allege the facts with certainty, a.) The court may hear the case. Rule
b.) attaching thereto supporting evidence, requires that it be SUMMARY in nature.
specifying that the petition concerns an b.) The court may, however, opt to merely
environmental law, rule or regulation require the parties to submit memoranda.
c.) and praying that judgment be rendered 2.) The petition shall be resolved without delay within
commanding the respondent to do an act 60 days from the date of the submission of the
or series of acts until the judgment is fully petition for resolution.
satisfied
d.) and to pay damages sustained by
petitioner by reason of malicious neglect JUDGMENT; PERIODIC REPORTS
to perform the duties of the respondent
If warranted, the court shall:
under the law or regulations.
3.) Sworn certification of non-forum shopping a.) Grant the privilege of the writ of continuing
WHERE TO FILE PETITION mandamus requiring the respondent to perform an

act or series of acts until the judgment is fully 3.) The unlawful act or omission involves an
satisfied; and ENVIRONMENTAL DAMAGE of such magnitude as
to prejudice the life, health or property of
b.) Grant such other reliefs as may be warranted inhabitants in two or more cities or provinces.
resulting from the wrongful or illegal acts of the
respondent.
NOTE: A mere repeated invocation of a
The court shall also require the respondent to submit violation of the constitutional right to health
periodic reports detailing the progress and execution and a balanced and healthful ecology is NOT
of the judgment, and the court may, by itself or through SUFFICIENT.
a commissioner or the appropriate government agency,
evaluate and monitor compliance. The petitioner must show that the respondent
has violated or would affect the people’s right
The periodic reports shall be contained in partial returns of to a balanced and healthful ecology.
the writ.
COMMENTS OF PETITIONER
Verified petition; What are its contents
Petitioner may submit its comments or observations on the
execution of the judgment 1. The petition must be verified and must contain
personal circumstances of the petitioner.
RETURN OF THE WRIT; FINAL RETURN
It shall contain the name and personal circumstances of the
Upon full satisfaction of the judgment, the respondent shall respondent or he may be described by an assumed
make a final return of the writ to the court which rendered appellation if his name and personal circumstances are
the judgment by the respondent. unknown and uncertain.
If the court finds that the judgment has been fully
implemented, the satisfaction of judgment shall be entered
in the court docket. 2. The petition shall also contain the following:
WRIT OF KALIKASAN a. Environmental law, rule or regulation violated

or threatened to be violated;
Who may file:
b. Act or omission complained of;
1.) The writ is available to: c. Environmental damage of such magnitude as
a.) A natural person to prejudice the life, health or property of the
b.) Juridical person inhabitant in two or more cities or provinces;
c.) Entity authorized by law and
d.) People’s organization d. All relevant and material evidence consisting
e.) Non-governmental organization or of the affidavits of witnesses, documentary
f.) Any public interest group accredited by or evidence, scientific or other expert studies,
registered with any governmental agency. and if possible, object evidence.
2.) The petition for the writ may be filed not only on
one’s personal behalf but also on behalf of persons 3. It shall also contain the equivalent of a certification
whose constitutional right to a balanced and against forum shopping.
healthful ecology is violated.
The Certification shall be under oath. It shall state
that:
REQUISITES FOR THE WRIT TO BE AVAILABLE: a. The petitioner has not commenced
any action or filed any claim involving
1.) It is sufficient that the right is THREATENED the same issues in any court, tribunal
with a violation. That there is an actual violation or quasi-judicial agency, and no such
of the constitutional right to a balanced and other action or claim is pending
healthful ecology is not required before the writ therein;
may be availed of. b. If there is such other pending action
or claim, complete statement of its
present status; and
2.) The violation or threatened violation is caused by c. If the petitioner should learn that the
an unlawful act or omission and the one same or similar action or claim has
responsible for such is any of the following: been filed or is pending, he shall
a.) Public Official report to the court that the fact within
b.) Public Employee five (5) days therefrom.
c.) Private Individual; or
d.) Private Entity 4. State the reliefs prayef for which may include a
prayer for the issuance of a Temporary
Environmental Protection Order.

for the issuance of the writ but also for the filing of
the verified return by the respondent.
Court where petition is filed
This verified return shall be filed by the respondent
1. Supreme Court or within a period of ten (10) days after service of the
2. Any of the stations of the Court of Appeals writ.
Docket Fee Note: The period to file a return is non-extendible. A
motion for extension of time to file a return is prohibited.
No docket fees are to be paid by the petitioner.
2. The respondent cannot delay the filing of a return
Section 4, Rule 7 Part III, Rules of Procedure for
on the pretext that the petition contains matters
Environmental Cases provides that “Petitioner shall be
which are not averred with sufficient definiteness
exempt from the payment of docket fees”.
or clarity because a motion for bill of particulars is
a prohibited motion.
Issuance of the Writ Contents of the verified return of respondent
The court shall give an order: 1. The verified return shall contain all defenses to
show that the respondent did not:
a. Issuance the writ; a. Violate;
b. Requiring the respondent to filed a verified return. b. Threaten to violate;
c. Allow the violation of any environmental law,
The above order shall be issued within three (3) days from rule or regulation;
the date of the filing of the petition. d. Commit any act resulting to environmental
damage of such magnitude as to prejudice life,
Such order however shall not be issued as a matter of health or property of inhabitant in two or more
course. It shall only issued only if the petition is sufficient cities or provinces.
in form and substance.
The defense must be contained in the return and a general
Duty of the clerk of court denial of the allegations in the petition shall be considered
as an admission thereof.
Upon receipt of the order of the court, the clerk of court
shall issue: 2. The return shall include:
a. Affidavit of witnesses;
1. Writ of kalikasan under the seal of the court;
b. Documentary evidence;
2. Including the issuance of a cease and desis order
and other temporary reliefs which shall be effective c. Scientific or other expert studies and;
d. If possible, object evidence, in support of
until further orders.
the defense of the respondent.
Penalty for refusing to issue the writ
Waiver of defenses
If the clerk of court either:
All defenses not raised in the return shall be deemed
a. Unduly delays, or waived.
b. Refuses to isse the writ after it allowance by the
Effect of failure to file the return
court.
The respondent cannot be declared in default for failure to
The clerk of court shall be punished by the court or
file a return because a motion to declare the respondent in
administrative actions.
default is a prohibited motion.
Service of the writ
In case the respondent fails to file a return. The court shall
1. The writ shall be served upon the respondent by a proceed to hear the petition ex parte.
court officer. It may also be served by any person
Note: Respondent is not allowed to file a motion to dismiss
deputized by the court.
the petition, instead of filing a return, because it is one of
2. Writ shall first be served personally upon
respondent. In case the writ cannot be served the prohibited motions under the rules.
personally, the rules on substituted service shall Contempt proceedings
apply.
3. The server is required to retain a copy of the writ The respondent who: a) refuses, b) unduly delays the filing
on which to make a return of service. of a return, or c) makes a false return may, after hearing,
be punished for indirect contempt under Rule 71 of the
Return of respondent; Non-extendible Rules of Court.
1. The court, upon finding the petition sufficient in
form and substance, shall issue an order not only

The same concept proceedings may apply to any person c. Directing the respondent public official,
who: a) disobeys, or b) resists a lawfule process or order government agency, private person or entity to
of the court. monitor strict compliance with the decision and
orders of the court;
Preliminary conference; modes of discovery d. Directing the respondent public official,
government agency, or private person or entity to
1. Upon receipt of the return of the respondent, the
make periodic reports on the execution of the final
court may call a preliminary conference in order to:
judgment; and
a. Simplify the issues, and
e. Such other reliefs which relate to the right of
b. Determine the possibility of obtaining
people to a balanced and healthful ecology or to
stipulations or admissions from the
the protection, preservation, rehabilitation or
parties.
restoration of the environment, except the award
The phraseology of the rule discloses that a preliminary of damages to individual petitioners.
hearing is not mandatory. The term “may” confers the
Appeal
discretion to call a preliminary conference upon the court.
A party may appeal to the Supreme Court under Rule 45 of
2. A party may file a motion for certain reliefs. The
the Rules of Court within fifteen (15) days from the date of
motion must be verified. Such reliefs are:
notice of the adverse judgment or denial of the motion for
a. Ocular inspection order; and
reconsideration.
b. Production or inspection of documentes or
things. The appeal may raise questions of fact.
Hearing; priority given Raising questions of fact constitutes an exception to the
general rule enunciated in Section1 of Rule 45 of the Rules
After the preliminary conference, the petition shall also set
of Court which provides that the petition “shall raise only
for haring.
questions of law”.
The period of the hearing, including the preliminary
Prohibited pleadings
conference, shall not extend beyond sixty (60) days and
shall be given the same priority as petitions for the writ of Under the rules of procedure for Environmental Cases, the
habeas corpus, amparo and habeas data. following pleadings are prohibited:
Submission of case for decision; submission of a. Counterclaim;
memoranda b. Cross-claim;
c. Third-party complaint; and
After hearing, the court shall issue an order submitting the
d. Reply.
case for decision.
Prohibited motions
The court may, however, require the filing of memoranda
within a non-extendible period of thirty (30) days from the Under the same rules, the following motions are prohibited:
date the petition is submitted for decision. The memoranda
submitted may be, if possible, in electronic form. a. Motion to dismiss;
b. Motion for extension of time to file return;
c. Motion for postponement;
d. Motion for a bill of particulars; and
Judgement; period to render
e. Motion to declare the respondent in default.
The court shall render judgment within sixty (60) days from
Filing of the petition is not a bar to the filing of other
the time the petition is submitted for decision.
actions
The judgment shall either grant or deny the privilege of the
The filing of an petition for the issuance of the writ of
writ of kalikasan.
kalikasan shall not preclude the filing of other actions
Relief which the court may grant under the writ separate from the petition.
The following reliefs may be granted under a writ of Such separate actions may be civil, criminal, or
kalikasan: administrative.
a. Directing the respondent to permanently cease and RULE 66

desist from committing acts or neglecting the Quo Warranto
performance of a duty in violaton of environmental
laws resulting in environmental destruction or
Introduction, nature and purpose
damage;
b. Directing the respondent public official, A quo warranto proceeding is generally defined as an action
government agency, private person or entity to against a person who usurps, intrudes into, or unlawfully
protect, preserve, rehabilitate or restore the holds or exercises a public office or even a public franchise.
environment;

It is specifically described as an action for the usurpation of that any case specified in the Rules can be established by
proof, the Solicitor General or the public prosecutor must
a. Public office commenced the action.
b. Public position
c. Franchise. When the action may be commenced with the
permission of the court
It must be commenced by a verified petition in the name of
the Republic of the Philippines. 1. The Solicitor General or public prosecutor may
bring the action at the request and upon the
Quo warranto is a special civil action commenced in the relation of another person with the permission of
name of the Republic of the Philippines by a verified the court in which the action is to be commenced,
petition. 2. In the above situation, the officer bringing the
action may first require and indemnity for the
In certain instances, however, the petition may be brought
expenses and costs of the action.
by an individual in his own name if he claims to be entitled
to be a public office usurped or unlawfully held or exercised
Such indemnity, which shall be in an amount
by another.
approved by the court and deposited with it, shall
Quo Warranto distinguished from Mandamus be provided by the person at whose request and
upon whose relation the action is bought.
Quo warranto proceeding Mandamus is brought 3. When the application is made for permission to
is brought against the against the person who is commence such action, the court shall direct that
holder of the office. responsible for unlawfully notice be sent to the respondent so that he may be
excluding the petitioner given the opportunity to be heard and to oppose
from office, like an the application
appointing authority.
If the permission is granted, the court shall issue an order
to that effect. Copies of such order shall be served on all
Against whom petition may be brought the interested parties. The petition shall then be filed within
the period ordered by the court.
The petition for the usurpation of a public office, position or
franchise may be brought against any of the following: When an individual may commence the action
a. Person; The petition may also be commenced by a person in his

b. Public officer; or own name other than by the Solicitor General or public
c. Association prosecutor.
However, not any person may file the petition for quo
Bar 2018 warranto. The person authorized to file the same is the one
who claims to be entitled to a public office or position which
If brought against a person, said person is one who was usurped or unlawfully held or exercised by another
usurps, intrudes into, or unlawfully holds or exercises a person.
public office, position or franchise. This person may be
Further, the private person may maintain an action without
any person, including public officer.
the intervention of the Solicitor General. He must show that
he has a clear right to the office allegedly being held by
If filed against a public officer, said officer is one does or another.
suffers an act which, by the provision of law, constitutes a
Therefore, one who does not claim to be entitled to the
ground for the forfeiture of his office.
office allegedly usurped or unlawfully held or exercised by
If filed against association, it is one which acts as a another cannot question his title thereto by quo warranto.
corporation within the Philippines without being legally
Mere assertion of a right to be appointed to the office is not
incorporated or without lawfule authority to do so.
sufficient regardless of the alleged flaws in the title of
Who may commence the petition respondent.
The petition can be commenced by the: Allegations when the petition is filed against a
usurper
a. Solicitor General
b. Public prosecutor 1. When the action is against a person usurping a
c. Private person public office, position or franchise, the petition
shall set forth:
When the action must be commenced (by the A. The name of the person who claims to
government) be entitled thereto, if any
B. The petitioner’s right to the same; and
When directed by the President of the Philippines, or when
upon complaint or otherwise he has good reason to believe

C. Unlawful possession of the office, with the Commission within ten days after the
position or franchise by the proclamation of the results of the election.
respondent
2. All persons who claim to be entitled to the public Any voter contesting the election of any municipal or
office, position or franchise may be made parties. barangay officer on the ground of ineligibility or of
In the same action, the court shall determine their disloyalty to the Republic of the Philippines shall file a
respective rights to such public office, position or sworn petition for quo warranto with the regional trial
franchise. court or metropolitan or municipal trial court,
respectively, within ten days after the proclamation of
the results of the election.
Jurisdiction and Venue
The quo warranto petition described in the first six sections Take note: Under Section 253, a quo warranto proceeding
of Rule 66 can be brought only in the may be filed with the MTC when the election of a barangay
officer is contested.
a. Supreme Court,
b. Court of appeals Where the issue is the qualification of an elected member
c. Regional Trial Court of the House of Representatives, a quo warranto petition is
deemed correctly filed with the House of
If it is brought in the Regional Trial Court, it shall be that Representatives Electoral Tribunal.
which has jurisdiction over the territorial area where the
respondent or any of the respondents resides.
When the action is commenced by the Solicitor General Quo warranto distinguished
the petition may be brought in the: Elective office Appointive office
Governing Law is the The rules that govern are
a. Regional Trial Court of the City of Manila, Election Law the provision of the Rules
b. Court of Appeals or; of Court
c. Supreme Court The issue of eligibility or The issue is the legality or
ineligibility of the person illegality of the occupancy
Quo warranto in the Sandiganbayan
elected or his loyalty or of the office by virtue of an
In certain cases, the petition may be brought in the disloyalty to the Republic appointment.
Sandiganbayan. P.D. 1606, as amended by R.A. 8249, The petition is filed within Filed within 1 year from the
Section 4 provides: 10 days, after time the cause of ouster,
proclamation of the results or the right of the
The Sandiganbayan shall have exclusive original of the election petitioner to hold the office
jurisdiction over petitions for the issuance of the writs of or position, arose
mandamus, prohibition, certiorari, habeas corpus, Petition is brought in the May be brought in the
injunctions, and other ancillary writ and processes in aid COMELEC, Regional Trial Supreme Court, Court of
of its appellate jurisdiction and over petitions of similar Court or Municipal Trial Appeals or Regional Trial
nature, including quo warranto, arising or that may Court, as the case may be. Court
arise in cases filed or which may be filed under Executive Petitioner may be any Petitioner is the person
order Nos. 1, 2, 14 and 14-A, issued in 1986: Provided, voter even if he is not claiming to be entitled to
that the jurisdiction over these petitions shall not be entitled to the office the office
exclusive of the Supreme Court. Where the person elected The court determines who
is ineligible, the court is legally appointed, and
cannot declare that can and ought to declare
Quo warranto under the Omnibus Election Code candidate occupying the the person entitled to
second place as elected, occupy the office.
Under the Election Code, a petition for quo warranto may
even if he were eligible,
be brought in
since the law authorizes a
a. COMELEC; declaration of election in
b. Regional Trial Court; favor of the person
c. Metropolitan Trial Court, as the case may be. obtaining the plurality of
votes.
Section 253 of the Code provides, thus:
Section 253. Petition for quo warranto. - Any voter Quo warranto distinguished from an election protest
contesting the election of any Member of the Batasang
Pambansa, regional, provincial, or city officer on the 1. As a general rule, the proper remedy after the
ground of ineligibility or of disloyalty to the Republic of proclamation of the winning candidate for the
the Philippines shall file a sworn petition for quo warranto position contested would be to file a regular
election protest or quo warranto

However, a quo warranto petition in an election public This contempt is punished after a charge in
officials should not be confused with an election writing has been filed, and an opportunity given
protest. to the respondent to be heard.
Quo warranto Election Protest 3. The person adjudged entitled to the office may also
The eligibility of the The cause of action in an recover the damages sustained by him by reason
candidate or lack of it, or election protest is the of the usurpation.
his being disloyal to the irregularity in the
republic conduct of the elections Period to claim damages
If the petitioner is adjudged to be entitled to the office, he

Take note: Controversy where the petitioner is may sue for damages against the alleged usurper within
seeking to be seated as the second nominee of party (1) year from the entry of judgement establishing his
list organization is neither an election protest nor a quo right to the office in question.
warranto proceeding
Quo warranto against corporations
Period for Filing
Although a quo warranto proceeding may be brought
An action for quo warranto by reason of ouster from a public against an association which acts as a corporation within
office shall be filed within one (1) year after the cause of the Philippines without being legally incorporated or without
such ouster, or the right of the petitioner to hold such office lawful authority so to act, the petition may be brought
or position, arose (Section 11, Rule 66, Rules of Court) only against a de facto corporation not a de jure
corporation.
Judgment in quo warranto proceedings
Quo warranto petition may be commenced against
1. In case of usurpation of a public office, when the impeachable officials; jurisdiction of the Supreme
respondent is found guilty of usurpring, intruding Court
into, or unlawfully holding or exercising a public
office, position or franchise, the judgment shall Republic vs Sereno
include the following:
Quo warranto proceedings are essentially judicial in
a. The respondent shall be ousted and excluded character – it calls for the exercise of the Supreme Court’s
from the office; Consitutional duty and power to decide cases and settle
b. The petitioner or relator, as the case may be, actual controversies.
shall recover his costs; and
This Constituional duty cannot be abdicated or transferred
c. Such further judgment determining the
in favor of, or in deference to, any other branch of the
respective rights in and to the public office,
government including the Congress, even as it acts as an
position or franchise of all the parties to the
impeachment court through the Senate.
action as justice requires.
The Court further explained that to “To differentiate from
2. The court may render judgment for costs against impeachment:
either the petitioner, relator, or respondent, or the
person or persons claiming to be a corporation. The quo warranto involves a Impeachment is a
court may also apportion the costs, as justice judicial determination of political process to
requires. the eligibility or validity of vindicate the violation of
the election or the public’s trust.
Rights of persons adjudge entitled to public office appointment of a public
official based on
1. The person adjudged to be entitled to the public
predetermined rules
office may exercise the following rights after taking
his oath of office and executing the required bond:
a. Take upon himself the execution of the
office; In quo warranto proceedings referring to offices filled by
b. Immediately thereafter demand of the appointment, what is determined is the legality of the
respondent all the books and papers in the appointment. The title to a public office may not be
respondent’s custody or control contested collaterally but only directly, by quo warranto
appertaining to the office to which the proceedings.
judgment relates
2. If the respondent refuses or neglects to deliver any The usurpation of a public office is treated as a public wrong
book or paper pursuant to such demand, he may and carries with it public interest, and as such, it shall be
be punished for contempt as having disobeyed a commenced by a verified petition brought in the name of
lawful order of the court. the Republic of the Phlippines through the Solicitor
General or a public prosecutor. The Solicitor General is
Take note: A disobedience to a lawful order of given permissible latituted within his legal authority in
a court is cause for an indirect contempt.

actions for quo warranto, circumscribed only by the national Meaning of just compensation
interest and government policy on the matter at hand.
The payment of just compensation is an essential
RULE 67 component of the exercise of the power of eminent domain
Expropriation because of the Constitutional precept that private shall not
be taken without just compensation. Taking of private
Introduction property without just compensation is a violation of a
person’s property right.
Eminent domain is the right or power of a sovereign state
to appropriate private property to particular uses to Generally, just compensation is the fair and full equivalent
promote public welfare. It is an indispensable attribute of value of the loss. Specifically, just compensation is defined
sovereignty, a power grounded in the primary duty of the as the full and fair equivalent of the property is defined as
government to serve the common need and advance the the full and fair equivalent of the property taken from its
general welfare. It is a power inseparable from sovereignty owner by the expropriator.
since it is essential to the existence of the State and
inherent in government. The concept of just compensation does not imply fairness
to the property owner alone. Compensation must also be
While the power of eminent domains does not owe its just to the public, which ultimately bears the cost of
existence from the Constitution certain restraints may be expropriation.
set to it by the Constitution to protect the citizenry against
state encroachment into fundamental and equally inherent Note: The delay in the payment of just compensation is a
individual rights. forbearance of money. As such, the forbearance is
necessarily entitled to earn interest.
Example:
Purpose of just compensation
a. Taking of private property be done only for public
use and upon payment of just compensation The purpose of just compensation is not to reward the
b. The due process and equal protection clauses. owner for the property taken, but to compensate him for
the loss thereof.
The scope of the power of eminent domain, as exercised by
the Congress, is plenary and as broad as the police power. Republic vs Macabagdal
Such power, however, may also be delegated to local The true measure of the property is the market value at
political subdivisions and public utilities. the time of the taking since it is when the loss resulted.
As such, the state is only bound to make good the loos
Essence of expropriation; concept of “public use” sustained by the owner property expropriated.
1. Expropriation is forced private property taking, the
landowner being really without a ghost of a chance Requisites of “taking” in eminent domain cases
to defeat the case of the expropriation agency. In
other words, in expropriation, the private owner is a. The expropriator must enter a private property.
deprived of property against his will. b. The entrance to the property must be for more
than a momentary period
Public use, as an eminent domain concept, has now c. The entry into the property should be under
acquired an expansive meaning to include any use warrant or color of legal authority;
that is of ‘usefulness, utiliy, or advantage, or what d. The property must be devoted to a public use or
is productive of general benefit of the public’. If the otherwise informally appropriated or injuriously
genuine public necessity ceases or disappears, affected; and
then there is no more cogent point for the e. The utilization of the property for public use must
government’s retention of the expropriated land. be in such a way as to oust the owner and deprive
him of all beneficial enjoyment of the property
2. It is essential that the element of public use of the
property be maintained throughout the .NTC vs Oroville
proceedings for expropriation. More particularly. It
should commit to use the property pursuant to the Thus, when an expropriator, authorized by law to
purpose stated in the petition for expropriation exercise eminent domain, enters a private property to
filed, failing which, it should file another petition construct transmission lines to be used in generating
for the new purpose. If not, it is then, incumbent electricity for the benefit of the public, stays in the
upon the expropriator to return the said property property for indefinitely in the property, and as a result
to its private owner, if the latter desires to thereof, the owner of the property is deprived of the
reacquire the same. Otherwise, the judgment of beneficial ownership of the same, there is “taking”
expropriation suffers and instrinsic flaw, as it would
lack one indispensable element for the proper
exercise of the power of eminent domain, namely,
particular public purpose for which the property will Government has no unrestricted title to the land
be devoted. expropriated

Vda. De Ouano vs Republic How the local government unit may immediately take
possession of the property
A condemnor should commit to use the property
pursuant to the purpose sated in the petition for Pursuant to Section 19 of RA 7160, the local government
expropriation, failing which it should file another petition unit may immediately take possession of the property when
for the new purpose. the following statutory requirements are met:
a. Expropriation proceedings are filed; and

If not, then it behooves the condemnor to return the said
property to its private owner, if the latter so desires.
b. The local government makes a deposit with the
proper court of at least 15% of the fair market
The government cannot plausibly keep the property its
value of the property based on the current tax
expropriated in any manner it pleases and, in the process
declaration of the property based on the current
dishonor the judgment of expropriation. This is not in
tax declaration of the property to be expropriated.
keeping with the idea of fair play.
The notion that the government, via expropriation Note: The amount to be paid for the property shall be
proceedings, acquires unrestricted ownership over or a based on the fair market value at the time of the taking of
fee simple title to the covered land, is no longer tenable. the property.
Expropriated lands should be differentiated from a piece
of land, ownership of which was absolutely transferred Expropriation not limited to acquisition of title
by way of an unconditional purchase and sale contract
freely entered by two parties, one without obligation to National Power Corporation vs Santa Loro Vda. De
buy and the other without the duty to sell. Capin
Expropriation is not limited to the acquisition of real

property with a corresponding transfer of title or
Exercise of eminent domain by local government possession. The right-of-way easement resulting in a
units restriction or limitation on property rights over the land
traversed by transmission lines also falls within the ambit
1. Section 19 if RA 7160, which delegates to local of the term ‘expropriation’
government units the power of eminent domain.
The requisites that must concur before a local government Stages in the expropriation process
unit can exercise the poer of eminent domain:
1ST Stage
a. An ordinance is enacted by a local legislative
The determination of the authority of the plaintiff to
council to exercise the power of eminent domain, expropriate. This determination includes inquiry into the
or pursue expropriation proceedings over a
propriety of the expropriation – its necessity and the
particular private property through it chief
public purpose.
executive;
b. The power of eminent domain is exercised for
The first stage will end in the issuance of an order of
public use, purpose or welfare, or for the benefit of expropriation if the court finds for the plaintiff, or in the
the poor and the landless
dismissal of the complaint if it finds otherwise.
c. The power may be exercised through its chief
executive acting pursuant to the enacted
ordinance; 2nd Stage
d. There is payment of just compensation, as required The determination of just compensation through the
under the Constiution, and other pertinent laws; court-appointed commissioners
and
e. A valid and definite offer has been previously
made to the owner of the property sought to be It is jurisprudentially-settled that the valuation of property
expropriated, but said offer was not accepted. or determination of just compensation in eminent domain
proceedings is essentially a judicial function which is vested
Take note: with the courts and not with administrative agencies.
Exercise of eminent domain in this case should be made This is the reason for the authority given to a court, in
through an ordinance. eminent domain cases, to even set aside the report of the
The court, in no uncertain terms, has pronounced that a commissioners assigned to determine just compensation.
local government unit cannot authorize an expropriation of Matter to be alleged in a complaint for expropriation
private property through mere resolution of its lawmaking
body. 1. There is nore reason for the institution of
expropriation proceedings when the owner is
RA 7160 expressely requires an ordinance for the purpose willing to part with his property. The
and a resolution that merely expresess the sentiment of the commencement of a complaint for expropriation is
municipal council will not suffice.

necessary only when the owner does not agree to monetary terms, this is merely incidiental to the
sell his property, or if he is willing to sell but does expropriation suit because the amount of compensation
not agree with the price offered. is only determined after the court is satisfied with the
proprietary of the expropriation.
2. An expropriation proceeding is commenced by the
filing of a verified complaint which shall:
a. State with certainty the right of the 2. IN eminent domain cases, the determination of
plaintiff to expropriation and the purpose just compensation is principally a judicial
thereof; function of the Regional Trial Court acting as a
b. Describe the real or personal property special agrarian court. It execises exclusive
sought to be expropriated; and original jurisdiction over all petitions for the
c. Join as defendants all persons owning or determination of just compensation to
claiming to own, or occupying, any part of landowners.
the property or interest therein, showing,
so far as practicable, the interest of each Defenses and objections in the answer
defendant. If the plaintiff cannot identify
1. The defendant shall serve an answer if he has an
the real owners with accuracy, averment objection to the:
to that effect shall be made in the
a. Filing of the complaint,
complaint.
b. Allegations in the complaint,
Service of summons; who may be defendants c. Objection or defense to the taking of his
property.
1. The defendant shall be served with summons;
2. The defendant in an expropriation case is not This answer shall be served within the time stated in the
limited to the owners of the property condemned. summons
They include all other persons owning, occupying
Note: In expropriation proceedings, the period within
or claiming to owner property. When property is
which to file an answer is stated in the summons. In
taken by eminent domain, the owner is not
ordinary civil actions, the period to file an answer is
necessarily the only person who is entitled to
specified in Rule 11 of the Rules of Court.
compensation.
In an American jurisdiction, the term “owner,” 2. The answer is required to specifically designate or
refers, as is the rule in respect of those entitled to identify the property in which the defendant claims
compensation, to all those who have lawful interest to have an interest, and state the nature and
in the property to be condemned, including, extent of the interest claimed. He must also allege
mortgagee, lessee and vendee in posession all his objections and defenses to the taking of his
under an executory contract. property because those not adduced are deemed
waived.
Every person having an estate or interest at law or
in equity in the land taken is entitled to a share in Note:
the award. If a person claiming an interest in the Observe that this rule is similar to the principle
land sought to be condemned is not made a party, observed in the omnibus motion rule under
he is given the right to intervene and lay claim to Section 8 of Rule 15 governing ordinary civil
the compensation. actions which requires that a motion attacking a
pleading, order, judgment or proceeding shall
Court with jurisdiction include all grounds then available, and all
objections not so included shall be deemed
1. An action for expropriation is filed with the
waived
Regional trial court (it is an action incapable of
pecuniary estimation regardless of the value of
the subject property) Remedy when some defenses are omitted
Note:  In order to prevent a waiver of those defenses not
The primary consideration of an expropriation suit is alleged, the remedy is to seek leave to amend the
whether the government or any of its instrumentalities answer within ten (10) days from the filing thereof.
has complied with the requisites for the taking of private (Sec. 3, Rule 37, Rules of Court)
property. Hence, the courts determine the authority of
the government entity, necessity of the expropriation, Counterclaims, cross-claims, or third-party
and observance of due process. complaints
In the main, the subject of an expropriation suit is the  Under Sec. 3 of Rule 67, none of these pleadings
government’s exercise of eminent domain, a matter that shall be alleged or allowed in the answer or in any
is incapable of pecuniary estimation. Althought the value subsequent pleading.
of the property to be expropriatioed is estimated in

Waiver of defenses or failure to answer; effect The said provision merely requires notice to the defendant
and making the required deposit.
 In expropriation proceedings, whether or not a
defendant has previously appeared or answered, New system of immediate payment under R.A. 8974;
he may present evidence as to the amount of the application of the rule
compensation to be paid for his property, and
share in the distribution of the award. (Sec. 3, Rule  R.A. 8974 requires that the Government make a
67, Rules of Court) direct payment to the property owner before the
writ may issue.
When an answer is not required  Such payment is based on the zonal valuation of
the BIR in the case of land, the value of the
 An answer is not required if the defendant has no improvements or structures under the replacement
objection or defense to the action or to the taking method, or if no such valuation is available and in
of his property. cases of utmost urgency, the proffered value of the
property to be seized.
Instead, he may file and serve a:
 R.A. 8974 applies in instances when the national
a) notice of appearance, and government expropriates property “for national
b) manifestation to the fact that he has no government infrastructure projects.”
objection or defense to the taking of his  Thus, if expropriation is engaged in by the national
property, within the time stated in the government for purposes other than national
summons infrastructure projects, the assessed value
standard and the deposit mode prescribed in Rule
 In the manifestation, he shall specifically designate 67 continues to apply.
or identify the property in which he claims to have
Prospective application of R.A. 8974
an interest.
 Thereafter, he shall be entitled to notices of all  The law does not have a retroactive effect.
proceedings affecting the property even if he has o First, R.A. 8974 is substantive law. A law
no objections or defenses. (Section 3, Rule 67, looks forward not backwards.
Rules of Court) o Second, there is nothing in R.A. 8974
which expressly provides that it should
Entry upon the property or possession thereof;
have retroactive effect.
deposit and notice
o Third, retroactivity is not implied from R.A.
 Under Sec. 2 of Rule 67, in order to be entitled to 8974 or in any of its provisions.
the possession of the property, the plaintiff, upon
Deposit under the Local Government Code
the filing of the complaint or at any time thereafter,
must deposit with the proper government authority  Under Sec. 19 of the Local Government Code, the
an amount equivalent to the assessed value of the local government unit ay immediately take
property for the purpose of taxation with an possession of the property upon the filing of the
authorized government depositary, which deposit expropriation proceedings and making a deposit
shall be held by the bank subject to the orders of with the proper court of at least 15% of the fair
the court. market value of the property based on the current
 If personal property is involved, the amount to be tax declaration of the property to be expropriated.
deposited shall be fixed by the court after the value
of the property is provisionally ascertained. Order of expropriation
 The deposit referred to shall be in money, unless
the court authorizes a deposit in the form of a  An order of expropriation (also referred to as order
certificate of deposit of a government bank of the of condemnation) shall issue in the following cases:
Republic of the Philippines payable on demand to a) In the event the objections of the
the authorized depositary. defendant are overruled; or
 Notice is required to be sent to the defendant b) When no party appears to object to or
before the plaintiff shall have the right to take or defend against the expropriation.
enter upon the possession of real property (Sec. 4, Rule 67, Rules of Court)
involved.
No dismissal by plaintiff upon rendition of the order
Effect of making a required deposit of expropriation
 The court shall order the sheriff or other proper  General Rule: After the rendition of the order of
officer to place the plaintiff in possession of the expropriation, the plaintiff shall not be permitted
property involved and promptly submit a report to to dismiss or discontinue the proceeding.
the court. Copies of the report are to be served to  Exception: Upon such terms as the court deems
the parties. just and equitable. (Sec. 4, Rule 67, Rules of Court)
Note: Sec. 2 of Rule 67 does not require a prior hearing Appeal from the order of expropriation
before immediate possession can be granted to the plaintiff.

 The order of expropriation is appealable by any o where the commissioners have applied
party aggrieved by such order. illegal principles to the evidence submitted
to them,
Matters not affected by the appeal o where they have disregarded a clear
preponderance of evidence, or
Question: When the order of expropriation is appealed
o where the amount allowed is either grossly
from, will the second stage (determination of just
inadequate or excessive.
compensation) be held in abeyance or suspended by the
 Thus, trial with the aid of the commissioners is a
appeal?
substantial right that may not be done away with
 Answer: “Such appeal, however, shall not prevent capriciously or for no reason at all.
the court from determining the just compensation  Where no trial or hearing was conducted, the court
to be paid. (Sec. 4, Rule 67, Rules of Court) should disregard the commissioners’ findings.
 The absence of such trial or hearing constitutes a
Question: May the plaintiff be prevented from entering violation of the right of due process.
upon the property as a consequence of the appeal?
3. The parties may introduce their evidence in the hearing
 Answer: “The right of the plaintiff to enter upon before the commissioners and argue their case either:
the property of the defendant and appropriate the by themselves, or by counsel.
same for public use or purpose shall not be delayed
by an appeal from the judgment.” (Sec. 11, Rule  In ascertaining the compensation:
67, Rules of Court) o The commissioners shall assess the
consequential damages to the property
Rule if the trial court’s decision is reversed on appeal not taken
o Deduct from such consequential damages
 Judgment shall be rendered ordering the RTC to the consequential benefits to be derived
enforce the restoration of the possession of the by the owner from the public use or
property to the defendant, and to determine the purpose of the property.
damages which the defendant sustained and may o In no case shall the consequential benefits
recover by reason of the possession taken by the assessed exceed the consequential
plaintiff. (Sec. 11, Rule 67, Rules of Court) damages nor shall the owner be deprived
of the actual value of his property so
Ascertainment of just compensation; hearing taken. (Sec. 6, Rule 67, Rules of Court)
mandatory
4. In determining just compensation, the measure to be
1. Upon rendition of the order of expropriation, the court borne in mind is not the taker’s gain but the owner’s loss
shall appoint not more than three (3) commissioners to since what is involved is the takeover of private property
ascertain the just compensation for the property. under the State’s coercive power.
 Objections to the appointment: Judgment as to compensation
o made within 10 days from service of the
order of appointment of the  The court, after hearing, may either:
commissioners to the parties, and o Accept the report,
o shall be resolved within 30 days after all o Set aside the same, or
the commissioners shall have received o Accept the report in part and reject the
copies of the objections. (Sec. 5, Rule 67, same in part.
Rules of Court)  If it accepts the report: it shall render judgment in
 The commissioners are entitled to fees, which shall accordance with the report.
be taxed as part of the costs of the proceedings.  If it sets aside the report: it may appoint new
 General Rule: All costs shall be paid by the commissioners or recommit the same to the
plaintiff. commissioners for further report of facts.
 Exception: Those of rival claimants litigating their  The court shall always consider the interest of all
claims. the parties to the case.
2. The appointment of commissioners to ascertain just Guidelines for the proper determination of just
compensation for the property sought to be taken is a compensation (Spouses Mercado v. Land Bank of the
mandatory requirement in expropriation cases. Philippines):
 Where the principal issue is the determination of 1. Just compensation must be valued:
just compensation, a hearing before the a. at the time of the taking of the property
commissioners is indispensable to allow the parties expropriated, or
to present evidence on the issue of just b. the time when the owner was deprived of
compensation. the use and benefit of his property
 Findings of the commissioners may be disregarded 2. Interest may be awarded as may be warranted by
and the trial court may substitute its own estimate the circumstances of the case; and
of the value, but the latter may only do so for valid
reasons:

3. Just compensation must be arrived at pursuant to  It consists of the amount fixed in the judgment
the guidleines set forth in Sec. 17 of R.A. 6657 and including the legal interest from the taking of the
outlined in a formula provided in DAR A.O. No. 5. possession of the property. (Sec. 10, Rule 67,
Rules of Court)
 If the RTC finds these guidelines inapplicable, it  If the defendant declines to receive the amount
must clearly explain the reasons for deviating tendered, the same shall be ordered deposited in
therefrom and for using other factors or formula in, court.
arriving at the reasonable just compensation for  Such deposit shall have the same effect as actual
property expropriated. payment thereof to the defendant or to the person
ultimately adjudged entitled thereto. (Sec. 10,
Appeal from judgment as to compensation; effect Rule 67, Rules of Court)
 The appeal shall not have the effect of delaying the Payment in case of uncertain ownership; conflicting
right of the plaintiff to enter upon the property and claims
appropriate the same for public use or purpose.
 If the appellate court determines that the plaintiff  The court may order that the sum representing the
has no right of expropriation, judgment shall be compensation for the property be paid to the court.
rendered ordering the RTC to restore the property  Said payment shall be for the benefit of the person
to the defendant and determine the damages adjudged in the same proceeding to be entitled
which he may have sustained by reason of his thereto. (Sec.9, Rule 67, Rules of Court)
possession taken by the plaintiff.
 If the judgment is affirmed on appeal, the costs of Right of plaintiff after judgment and payment
the appeal shall be paid by the owner of the
The plaintiff shall have the right to:
property who appealed the judgment.
 It is not only the judgment of the court as to the a) Enter upon the property expropriated, and
compensation which is appealable. The previous b) Appropriate the same for the public use or purpose
order of expropriation is also appealable. defined in the judgment, or
c) Retain possession already taken in accordance with
When to ascertain just compensation
Sec. 2 of Rule 67. (Sec. 10, Rule 67, Rules of
 Sec. 4 of Rule 67 of the Rules of Civil Procedure Court)
provides that just compensation is to be
Rule if payment is refused
determined “as of the date of the taking of the
property or the filing of the complaint, whichever  The same shall be ordered deposited in court.
comes first.”  The deposit shall have the same effect as actual
 The court reiterated in National Power Corporation payment to the defendant or the person ultimately
v. Diato-Bernal: “…just compensation is to be adjudged entitled thereto. (Sec. 10, Rule 67, Rules
ascertained as of the time of the taking, which of Court)
usually coincides with the commencement of the
expropriation proceedings. Where the institution of Non-payment of just compensation; effect
the action precedes entry into the property, the
just compensation is to be ascertained as of the  It does not automatically entitle the private
time of the filing of the complaint. landowner to recover possession of the
 Under Sec. 19 of the Local Government Code: the expropriated lots.
amount to be paid for the expropriation of the  In cases where the government failed to pay just
property shall be determined based on the fair compensation within five (5) years from the finality
market value at the time of the taking of the of judgment in the expropriation proceedings, the
property. owners concerned shall have the right to recover
 Exception: Inverse Condemnation Proceedings possession of their property.
o This is in consonance with the principle
Inverse Condemnation that the government cannot keep the
property and dishonor the judgment.
 Inverse condemnation is a term used to describe a o The 5-year limitation will encourage the
situation in which the government takes private government to pay just compensation
property but fails to pay the compensation required punctually.
by law so the property’s owner has to sue to obtain o This is in keeping with justice and equity.
the required just compensation.
 In inverse condemnation cases, the owner is the Recording of the judgment and its effect
plaintiff and that is why the action is called
inverse—the order of the parties is reversed, as  The judgment entered in expropriation
compared to the usual procedure in direct proceedings shall state definitely the particular
condemnation where the government is the property or interest expropriated, which shall be
plaintiff. adequately described. (Sec. 13, Rule 67, Rules of
Court)
Payment of just compensation

 The judgment shall also state definitely the nature  Definition: A dragnet clause or blanket mortgage
of the public use or purpose for which the property clause is a provision in a mortgage contract in
is expropriated. which the mortgage is a security for past, present,
 When the property expropriated is a real estate, a and future indebtedness. They are valid and legal
certified copy of such judgment shall be recorded contracts.
in the registry of deeds of the place where the  In other words, a dragnet clause is a stipulation in
property is situated. a mortgage contract that extends the coverage of
 The recording shall vest upon the plaintiff the title a mortgage to advances or loans other than those
to the real estate so described for such public use already obtained or specified in the contract.
or purpose. (Sec. 13, Rule 67, Rules of Court)  While a real estate mortgage may exceptionally
secure future loans or advancements, these future
Rule 68 debts must be sufficiently described in the
FORECLOSURE OF REAL ESTATE MORTGAGE mortgage contract. (Traders Royal Bank v.
Castañares)
Preliminaries When foreclosure is proper; demand to pay
 A real estate mortgage is an accessory contract  Foreclosure of real estate mortgage presupposes
executed by a debtor in favor of a creditor as that the debtor failed to pay his debt despite
security for the principal obligation. demand.
 The principal obligation is usually a simple loan or  The default of the debtor must first be established.
mutuum. o Default occurs when payment is not made
 To be a real estate mortgage, the contract must be after a valid demand,
constituted on either: o unless the contract between the parties
o immovables (real property) or carries with it a stipulation that demand is
o alienable real rights not necessary for default to rise.
 If constituted on movables, the contract is a chattel  The issue of whether demand was made before the
mortgage. foreclosure is essential.
 A real estate mortgage creates a real right which o If demand was made and duly received by
follows the property whoever the owner may be the respondents and the latter still did not
after the constitution of the mortgage. pay, then they were already in default,
o Hence, the new owner, who knows of the and foreclosure is proper.
mortgage (or if registered), is bound by o If demand was not made, then the loans
the mortgage even if he is not a party to had not yet become due and demandable.
the contract of mortgage. (See: Art. 2126, This meant that respondents had not
Civil Code) defaulted in their payments and the
 The mortgagor need not be the debtor and the foreclosure was premature.
latter need not be the mortgagor.  Foreclosure is valid only when the debtor is in
 The mortgagor who is not the debtor in the default in the payment of his obligation.
principal obligation is referred to as an
accommodation mortgagor. This situation is not Alternative remedies of the creditor; splitting a single
prohibited by law and has in fact, a legal basis (Art. cause of action
2085, Civil Code).
o Accommodation mortgagors are not liable In case of default of the debtor, the creditor has the
for the payment of the loan or principal following alternative remedies:
obligation. Their liability extends only up
a) To file an action for collection of a sum of money;
to the loan value of the mortgaged
or
property.
b) To foreclose the mortgage, if one has been
 There can be several mortgages over the same
constituted.
property. These encumbrances have no effect on
the ownership of the property and are treated Flores v. Lindo
merely as liens, the first one being treated as more
superior over subsequent encumbrances. “x x x a mortgagee-creditor has a single cause of action
 However, even a junior encumbrancer is not against a mortgagor-debtor, that is, to recover the debt.
precluded from initiating foreclosure proceedings The mortgagee-creditor has the option of either filing a
ahead of a prior encumbrancer in case the debt in personal action for collection of sum of money or
his favor matures earlier. instituting a real action to foreclose on the mortgage
 The failure to register the instrument does not security. An election of the first, bars recourse to the
affect the validity of the mortgage between the second, otherwise, there would be multiplicity of suits in
parties. The registration of the mortgage is, which the debtor would be tossed from one venue to
however, necessary to bind third persons. another depending on the location of the mortgaged
properties and the residence of the parties.”
Dragnet clause or blanket mortgage clause

Bank of America v. American Realty Corporation  Foreclosure of real estate mortgage is a real action.
Hence, it is the assessed value of the property
An election of one [remedy] operates as a waiver of the which determines the court’s jurisdiction.
other. For this purpose, a remedy is deemed chosen
upon the filing of the complaint for collection or upon the Modes of foreclosure of real estate mortgage; judicial
filing of the complaint for foreclosure of mortgage. As to foreclosure and extrajudicial foreclosure
an extrajudicial foreclosure, such mode is deemed
Modes of foreclosure of a real estate mortgage:
elected by the filing of the application for foreclosure with
the Office of the Sheriff of the Province where the sale is a) Extrajudicial foreclosure pursuant to Act 3135, as
to be made. amended by Act 4118.
o The mode to be used if there is a special
power inserted in or attached to the real
estate mortgage contract allowing an
Marilag v. Martinez extrajudicial foreclosure sale.
b) Judicial foreclosure pursuant to Rule 68 of the
“As petitioner had already instituted judicial foreclosure Rules of Court
proceedings over the mortgaged property, she is now o Where there is no such special power, the
barred form availing herself of an ordinary action for foreclosure shall be done judicially
collection, regardless of whether or not the decision in following the procedure set forth in Rule
the foreclosure case had attained finality. In fine, the 68.
dismissal of the collection case is in order.
Applicability of Rule 68
 Based on the above cases, a creditor cannot file a  Rule 68 applies only to judicial foreclosures of real
civil action for collection of the debt and estate mortgage. (Sec. 1, Rule 68, Rules of Court)
subsequently file an action to foreclose the
mortgage. Allegations in a complaint for foreclosure
o This is an example of splitting a single
cause of action, a practice that is The complaint for foreclosure of real estate mortgage shall
vexatious and oppressive. set forth the following:
Pactum commissorium; not a valid agreement a) The date and due execution of the mortgage;
b) The assignment of the mortgage, if any;
 Definition: Pactum commissorium is “a stipulation c) The names and residences of the mortgagor and
empowering the creditor to appropriate the thing mortgagee;
given as guaranty for the fulfillment of the d) A description of the mortgaged property;
obligation in the event the obligor fails to live up to e) A statement of the date of the note and other
his undertakings, without further formality, such as documentary evidence of the obligation secured by
foreclosure proceedings, and a public sale.” the mortgage;
f) The amount claimed to be unpaid thereon; and
Elements of pactum commissorium: g) The names and residences of all persons having or
claiming an interest in the property subordinate in
1. There should be a property mortgaged by way of right to that of the holder of the mortgage, all of
security for the payment of the principal obligation, whom shall be made defendants in the action.
and (Sec. 1, Rule 68, Rules of Court)
2. There should be a stipulation for automatic o These include persons who may now own
appropriation by the creditor of the thing the property mortgaged.
mortgaged in case of non-payment of the principal o Also included as defendants are the junior
obligation within the stipulated period. encumbrancers; the persons who may
have, under the contract, obligated to pay
 A Pactum commissorium is an agreement that is the mortgage debt; or those who may
legally infirm. have control over the property mortgaged.
 Art. 2088 of the Civil Code expressly prohibits the
creditor from appropriating the things given by way Procedure
of pledge or mortgage, and any stipulation to the
contrary is null and void.  A foreclosure suit will proceed like an ordinary civil
 This appropriation, to be null and void has been action insofar as they are not inconsistent with
interpreted to refer to an automatic appropriation Rule 68.
in case of non-payment of the obligation within the
stipulated period. Judgment on foreclosure; payment or sale
Court with jurisdiction If, after trial, the court finds that the matters set forth in
the complaint are true, it shall render a judgment
containing the following matters:

a) Ascertainment of the amount due to the plaintiff  If the mortgagor fails to pay the sum due within
upon the mortgage debt or obligation, including the period (90-120 days from entry of judgment)
interest and other charges as approved by the stated by the court in its judgment, the mortgagee
court, as well as costs; may file a motion for the sale of the mortgaged
b) Judgment from the sum found due; property.
c) Order that the amount found due be paid to the  The motion for the sale of the mortgaged property
court or to the judgment obligee within a period of is non-litigable and may be made ex parte
not less than 90 days nor more than 120 days from pursuant to the judgment of foreclosure.
the entry of judgment; and
d) Admonition that, in default of such payment, the Government of P.I. v. De las Lajigas
property shall be sold at public auction to satisfy
the judgment. (Sec. 2, Rule 68, Rules of Court) “x x xIt is insisted that the sale could not be effected
without notification to the debtor party of the motion for
 The judgment of the court on the above matters is the execution of the judgment. This view is, in our
subject to challenge by the aggrieved party by opinion, untenable. The judgment of foreclosure had
appeal or other post-judgment remedies. become final, and the motion asking for execution was a
 The period given in the rule is not merely a motion which in its very nature was grantable as of
procedural requirement; it is a substantial course; and the failure to give notice of the motion is no
requirement which cannot be omitted. ground for nullifying the sale.”
Equity of redemption
Confirmation of the sale
 The period metioned in the judgment of the court
is the period within which the mortgagor may start  After the foreclosure sale has been effected, the
exercising his “equity of redemption.” mortgagee should file a motion for the
 Definition: It is the right to extinguish the confirmation of the sale. (Sec. 3, Rule 68, Rules of
mortgage and retain ownership of the property by Court)
paying the debt.  The motion for confirmation of the sale requires a
 The payment may be made even after the notice and a hearing.
foreclosure sale provided it is made before the  In the hearing, the mortgagor will be allowed the
sale is confirmed by the court. opportunity to show cause why the sale should not
be confirmed. (Tiglao v. Botones)
Right of Redemption  If the mortgagor was not notified of the hearing,
the subsequent confirmation of the sale is vitiated,
 Definition: It is the right granted to a mortgagor and consequently, it is as if no confirmation ever
to reacquire the property even after the took place.
confirmation of the sale and the registration of the  Being so, the mortgagor, may therefore, still insist
certificate of sale. on his right to exercise his equity of redemption
 There is no right of redemption in a judicial even after the alleged confirmation which is, in
foreclosure of mortgage under Rule 68. fact, no effect.
 This right exists only in extrajudicial foreclosures
where there is always a right of redemption within Effect of confirmation of the sale
1 year from the date of sale but interpreted by the
court to mean 1 year from the registration of the  The confirmation of the sale shall operate to divest
sale. the rights in the property of all the parties to the
 General Rule: In judicial foreclosures, there is action and vest their rights in the purchaser,
only an equity of redemption which can be subject to such rights of redemption as may be
exercised prior to the order of confirmation of the allowed by law. (Sec. 3, Rule 68, Rules of Court)
foreclosure sale.
 Exemption: There is a right of redemption in a Effect of the finality of the confirmation of the sale;
judicial foreclosure if the foreclosure is in favor of writ of possession
banks as mortgagees, whether the foreclosure be
 The order of confirmation is appealable, and if not
judicial or extrajudicial, as provided in par. 1, Sec.
appealed from within the period for appeal, such
47 of the General Banking Law of 2000. order becomes final.
 The period of redemption in extrajudicial
 Upon finality of the order of confirmation or upon
foreclosures is shortened by the General Banking
the expiration of the period of redemption, when
Act of 2000. allowed by law, the purchaser at the auction sale
o The period of redemption is until, but not
or last redemptioner, if any, shall be entitled to the
after the registration of the certificate of
possession of the property and he may secure a
sale with the Register of Deeds, which in writ of possession, upon motion, from the court
no case shall be more than 3 moths after
which ordered the foreclosure unless a third party
foreclosure, whichever is earlier.
is actually holding the same adversely to the
Sale of the mortgaged property; effect judgment obligor. (Sec. 3, Rule 68, Rules of Court)

 The writ of possession is a means of recognizing  If not due: plaintiff shall be entitled to execution at
and enforcing rights of the purchaser. such time as the remaining balance shall become
 The purchaser is authorized by law to petition for a due and such due date shall be stated in the
writ of possession by filing an ex parte motion. judgment.
o That being so, there is no need for the  Deficiency judgment is, in itself, a judgment,
purchaser to notify the parties of the hence, also appealable.
proceedings.  No independent action need be filed to recover the
 The issuance of the writ of possession, however, deficiency from the defendant. The deficiency
does not bar a separate case for annulment of the judgment shall be rendered upon motion of the
mortgage and foreclosure sale. mortgagee.
 A mortgagor, who is not the debtor and who
Disposition of the proceeds of the foreclosure sale merely executed the mortgage to secure the
principal debtor’s obligation, is not liable for the
 The proceeds of the sale shall, after deducting the
deficiency unless he assumed liability for the same
costs of the sale, be paid to the person foreclosing
in the contract. (Philippine Trust Company v.
the mortgage.
Echaus Tan Siua)
 When there shall be any balance or residue after
 Where the debtor-mortgagor is a non-resident,
paying off the mortgage debt due, the same shall
who, at the time of the filing of the action for
be paid to junior encumbrancers in the order of
foreclosure and during the pendency of the
their priority.
proceedings, was outside the Philippines, a
 If there be any further balance or if there be no
deficiency judgment would not be feasible.
junior encumbrancers, the same shall be paid to
the mortgagor or any other person entitled Rule in case there is a surplus instead of a deficiency
thereto. (Sec. 4, Rule 68, Rules of Court)
 It is the duty of the mortgagee to return to the
Registration of the sale mortgagor any surplus in the selling price during
the foreclosure sale.
 A certified copy of the final order of the court
confirming the sale is necessary for the sale to be Distinctions between judicial foreclosure and
registered in the registry of deeds. extrajudicial foreclosure of real estate mortgage
 No right of redemption: the certificate of title in the
name of the mortgagor shall be cancelled, and a JUDICIAL EXTRAJUDICIAL
new one shall be issued in the name of the FORECLOSURE FORECLOSURE
purchaser. Governed by the Rules of Governed by Act 3135, as
 Right of redemption exists: the certificate of sale Court amended
and the order confirming the sale shall be Involves the filing of an Does not require the filing
registered and a brief memorandum thereof shall independent action of an action
be made by the register of deeds upon the There is an equity of There is a right of
certificate of title. redemption and no right of redemption
o The certificate of title, however, in the redemption except when
name of the mortgagor shall not be the mortgagee is a banking
cancelled. institution
 Property is redeemed: deed of redemption shall be There could be a deficiency There can be no judgment
registered with the register of deeds and a brief judgment rendered by the for a deficiency because
memorandum thereof shall likewise be made upon court in the same there is no judicial
the certificate of title. proceeding proceeding, although
 Property is not redeemed: final deed of sale recovery of the deficiency
executed by the sheriff in favor of the purchaser at is allowed
the foreclosure sale shall be registered with the Recovery of a deficiency Recovery of the deficiency
register of deeds. can be done by mere is through an independent
o The certificate of title in the name of the motion for a deficiency action, and, although
mortgagor shall then be cancelled and a judgment nothing about the recovery
new one shall be issued in the name of the of the deficiency is
purchaser. provided in Act 3135, there
is no prohibition either
Deficiency judgment; when there is no deficiency
judgment
Rule 69
 If there be a balance due to the plaintiff after PARTITION
applying the proceeds of the sale, the court, upon
motion, shall render judgment against the
defendant for any such balance. Preliminaries
 If balance is all due at the time of the rendition of
 An action for partition is typically brought by a
the judgment: execution may issue immediately
person claiming to be the owner of a specified

property against defendants whom the plaintiff action is incapable of pecuniary estimation and
recognizes as co-owners. thus, cognizable by the RTC.
 Definition: “Partition” is the division between 2 or
more persons of real or personal property, owned Modes of partition
in common, by setting apart their respective
Partition may be made either of 2 ways:
interests so that they may enjoy and possess these
in severalty, resulting in the partial or total a) By agreement of the parties
extinguishment of co-ownership. (Leoveras v. b) By judicial proceedings under the Rules of Court
Valdez) (Art. 496, Civil Code) when the parties cannot
 Partition among heirs is not legally deemed a reach an agreement.
conveyance of real property resulting in change of
ownership. It is merely a designation and Modes of partition
segregation of that part which belongs to each heir.
 Partition presupposes the existence of a co- 1. Partition may be made in 2 ways:
ownership over a property between 2 or more a. Agreement of parties
persons. b. Judicial proceedings under Rules of Court
2. Right to opt to agree to partition in lieu of judicial
Instances when a co-owner may not demand partition at partition is recognized by the rules of court.
any time: a. If co- owners cannot agree on the partition
of the property, the only recourse is filing
a) There is an agreement among the co-owners to an action for partition.
keep the property undivided for a certain period of
time but not exceeding 10 years. This term may, Stages/phases in partition
however, be extended by a new agreement. (Art.
494, Civil Code) 1. Determination of May end with a declaration
b) When partition is prohibited by the donor or whether or not a that the plaintiff is not
testator for a period not exceeding 20 years. (Art. co-ownership in entitled to have partition,
494 and 1083, Civil Code) fact exists and a because:
c) When partition is prohibited by law. (Art. 494, Civil partition is proper a. Co-ownership
Code) and may be made does not exist or
d) When the property is not subject to a physical by voluntary b. partition legally
division and to do so would render it unserviceable agreement of all prohibited
for the use for which it is intended. (Art. 495, Civil parties interested
Code) in the property
e) When the condition imposed upon voluntary heirs 2. commences when Effect: partition shall be
before they can demand partition has not yet been it appears that the done for the parties by the
fulfilled. (Art. 1084, Civil Code) parties are unable court with assistance of not
to agree upon the more than 3
Prescription of action; effect partition directed commissioners.
by court
 Prescription does not run in favor of a co-owner or
co-heir against his co-owner or co-heirs as long as
there is recognition of the co-ownership expressly A reading of the Rules will reveal that there are actually
or impliedly. (Art. 494, Civil Code) three (3) stages in the action, each of which could be the
 While the action to demand partition does not subject of appeal:
prescribe, a co-owner may acquire ownership 1) the order of partition where the property of the partition
thereof by prescription: is determined;
o where there exists a clear repudiation of 2) the judgment as to the accounting of the fruits and
the co-ownership and income of the property; and
o the co-owners are apprised of the claim of 3) the judgment of partition.
adverse and exclusive ownership.
 General Rule: The right of action to demand Multiple appeals
partition does not prescribe.
 Exception: Where one of the interested parties The action for partition is subject to multiple appeals and
openly and adversely occupies the property would require a record on appeal.
without recognizing the co-ownership, in which
case, acquisitive prescription may set in. Sidenote: when multiple appeals allowed:
Court with jurisdiction a. Specpro

b. Actions for recovery of property with acconting
 Jurisdiction over partition of real property would c. Action for partition of property with accounting
depend upon the assessed value of the property. d. Special civil actions of eminent domain and
 However, where the action is not merely for e. Foreclosure of mortgage
partition but annulment of title and documents, the

Who may file action for partition 3. If they do agree, the court shall then confirm the
partition so agreed upon by all of the parties, and
1. The person who has a right to compel the partition such partition, together with the order of the court
of real estate or of an estate composed of personal confirming the same, shall be recorded in the
property, or both real and personal property. registry of deeds of the place in which the property
a. The plaintiff is a person who is supposed is situated
to be a co-owner of the property or estate 4. If they cannot partition the property among
sought to be partitioned. themselves, the next stage in the action will follow
b. The defendants are all the co-owners. All -- the appointment of commissioners.
the co-owners must be joined.
2. An action will not lie without the joinder of all co- Partition be court-appointed commissioners
owners and other persons having interest in the
property. All the co-owners are indispensable When: if parties are unable to agree upon partition
parties. Number of commissioners: not more than 3
Qualification: competent and disinterested.
Matters to allege in complaint for Partition Note: the provision authorizes the commissioners merely to
make or effect the partition – not adjudicate on questions
1. Nature and extent of his title, of title or ownership of property.
2. An adequate description of the real estate of which
partition is demanded, and When division would be prejudicial
3. join as defendants all other persons interested in 1. Court may order that it be assigned to one of the
the property. parties willing to take the same provided such
4. Include a demand for the accounting of the rents, party pays to other parties and equitable amount.
profits and other income from the property which 2. Or interested party may ask that the property be
he may be entitled to. sold via public sale
a. These cannot be demanded in another
action because they are parts of the cause Report of the commissioners
of action for partition. They will be barred The commissioners shall make a full and accurate report to
if not set up in the same action pursuant the court of all their proceedings as to the partition,
to the rule against splitting a single cause
of action. Upon the filing of report, the clerk of court shall serve
copies thereof on all the interested parties with notice that
Order for partition they are allowed ten (10) days within which to file
objections to the findings of the report, if they so desire.
During Trial After Trial
A. court determines 1. Court finds that plaintiff Action of the court upon report of the commissioners
1. whether or not the has right to partition – 1. Accept report and render judgment based on the
plaintiff is truly a court orders partition same
co-owner of the among parties in interest. 2. Recommit the same to commissioners for further
property, report and appoint new commissioners
2. that there is Note: Final order decreeing 3. Set aside report and appoint new commissioners
indeed a co- a. partition and 4. Accept report in part and reject it in part
ownership among b. accounting 5. Make such order and render judgment that
the parties, and May be appealed by any effectuates fair partition of estate
3. that a partition is agrrieved party.
not legally
proscribed thus
may be allowed Proceedings before the commissioners
Not bind parties or pass title to property until court:

B. Court issues an order if
partition in order or 1. Accepted report and
plaintiff has right to 2. Rendered judgment on the same
demand it.
Effects of judgment of partition
1. Vests in each party to the action the portion of real

estate assigned to him;
Partition by agreement
If the whole property is Judgment vests in the
The order of partition is assigned to one of the party making the payment
parties upon his paying to the whole of the real estate
1. one that directs the parties or co-owners to
the others the sum or free from any interest on
partition the property and
sums ordered by the court the part of the other
2. the parties may make the partition among
parties to the action.
themselves by proper instruments of conveyance,
if they agree among themselves.

If the property is sold and vest the real estate in the Governed by rules on summary
the sale confirmed by the purchaser or purchasers procedure
court making the payment or Action publiciana Determine by assessed value of
payments, free from the and reivindicatoria the property
claims of any of the parties Not>20k or 50k (Metro Manila) –
to the action. MTC
>20K or 50K - RTC
Recording of judgment
General distinctions
A certified copy of the judgment shall in either case be Note: both FE and UD are accion interdictal (ejectment)
recorded in the registry of deeds of the place in which the FE UD
real estate is situated, and the expenses of such recording Action to recover Action to recover
shall be taxed as part of the costs of the action. possession of property possession which was legal
Note: from defendant whose from beginning but
occupation is illegal from became illegal when he
1. If there remains an issue as to expenses beginning continued possession
chargeable to estate, partition is inappropriate. despite his terminated
Determination of expenses cannot be done in an right to do so.
action for partition. one is deprived of physical one illegally withholds
2. This rule also applies to partitions of estate possession of real property possession after the
involving personal property or both real and by means of force, expiration or termination
personal property intimidation, strategy, of his right to hold
threats or stealth possession under any
Forcible Entry and Unlawful Detainer (FISTS); contract, express or
3 kinds of action to recover possession of property: implied.
A demand to vacate is not Demand to vacate required
1. Accion interdictal required before filing the (count 1 year period)
2. Accion publiciana action
3. Accion reivindicatoria
Entry illegal from Entry legal from beginning
beginning
Legend:
1 year counted from date 1 year counted from date
FE – Forcible entry
of actual entry XPT when of last demand
UD – Unlawful Detainer
entry made through
Accion interdictal Summary action for either forcible
stealth, counted from
entry (defendant’s possession is when plaintiff learned
illegal) or for unlawful detainer
(possession originally lawful but
ceased to be so by expiration of Issue in FE and UD
right to possess) The only issue is who between the parties is entitled to
physical possession. Issues as to ownership, n/a except
Prescriptive period: only for the purpose of determining possession.
FE- 1 year from date of entry
UD – 1 year from date of last Allegations in FE (not required in UD)
demand 1. Plaintiff had prior physical possession of property;
Accion Publiciana Plenary action for recovery of right 2. Defendant deprived him by means of FISTS
to possess RP; a. Note: the acts of going to property and
1. action brought >1 year excluding the lawful possessor imply
from accrual of cause of exertion of force over the property.
action.
2. Possession not under FE Allegations in UD
or UD 1. Initially, possession of property by way of contract
Accion Action where plaintiff alleges or tolerance
Reivindicatoria ownership and seeks to recover 2. Eventually such possession became illegal upon
full possession. notice by plaintiff to terminate defendant’s right of
possession
Note: in accion interdictal or 3. Defendant remained in possession and deprived
publiciana plaintiff merely alleges plaintiff of enjoyment
proof of better right to possess 4. Within 1 year from last demand to vacate.
without claim of title.
Note: failure to allege these, the remedy is an accion
publiciana or reivindicatoria.
Court with jurisdiction
Nature of possession
FE/UD MTC (exclusive and original)

1. Since issue is mere possession, it does not bind the

title or ownership of land and does not bar an Demand in UD cases
action respecting title 1. Unless there exists a stipulation to the contrary, a
2. When the action is to recover ownership, it UD case shall be commenced only after a demand
becomes reivindicatoria to pay and comply with conditions of lease and to
vacate is made upon lessee.
Prior physical possession 2. Thus, mere failure to pay rentals not sufficient.
While indispensable in forcible entry cases, possession can 3. The demand should be pay AND vacate not pay or
be acquired not only by material occupation, but also by vacate to make out a case for UD.
the fact that a thing is subject to the action of one's will or Form of demand
by the proper acts and legal formalities established for 1. Written notice served upon person found in
acquiring such right. premises
2. By posting written notice on premises
Possession can be acquired by juridical acts. Examples of
3. Can be verbal
these are donations, succession, execution and registration
of public instruments, inscription of possessory information
When right to commence arises
titles and the like.
If lessee fails to comply with demand
Note: if possession initially by tolerance, it becomes After 15 days Land
unlawful upon failure to comply with demand to vacate. After 5 days Bldg.
Effect: possessor liable to pay rentals from time of demand When demand not necessary
to vacate up to when premises vacated. 1. There is a stipulation dispensing with demand
2. Ground for suit is based on expiration of lease
When rule on tolerance does not apply
1. When there was forcible entry at start When demand necessary
2. When occupation was unlawful from the start 1. When lease is on a month to month basis to
terminate the lease upon expiration of the month
Venue
(w/o the notice, lease continues to be in force)
Since FE and UD are real actions, venue is the place where
property is situated.
Tacita reconduccion
But they are also personal actions (seeks to enforce Art 1670 – if at the end of the contract of lease,
personal obli to vacate and restore physical possession. 1. the lessee should continue to enjoy the leased
property
Who may institute 2. for 15 days
UD 3. with consent of lessor
May be filed by any person (natural, or juridical), lessor, 4. and no notice to contrary
vendor, vendee or any person against whom possession it is understood that there is an implied new lease not for
of land or bldg. is unlawfully withheld. period in the original contract but for the time established
in Art 1682 and 1687.
Effect of pending action involving ownership If period is not fixed, understood to be from month to
month, if rent monthly, week to week if weekly, etc.
1. Does not bar filing of ejectment suit
2. Does not suspend proceedings Terms of contract revived only those germane to lessee’s
right of continued enjoyment
Examples of cases which do not bar action for FE/UD:
1. Injunction suits in RTC NOTE: if there is tacita reconduccion – lessee not deemed
2. Accion publiciana to unlawfully withhold property; no UD
3. Writ of possession case
4. Quieting of title Answer to complaint
5. Specific performance Defendant should answer 10 days from summons. Failure
6. Reformation of instrument to answer, court, upon motion shall declare such party in
7. Reconveyance of property default.
8. Suits for annulment of sale
Defense of tenancy
When judicial action not necessary Defenses in answer do not determine jurisdiction (it’s
Contractual stipulations empowering the lessor to allegations in complaint)
repossess the leased property extrajudicially from a lessee 1. If issue tenancy raised (thus, jurisdiction should
whose lease has expired have been held to be valid. Being be with DARAB) , it would be error for the court to
the law between the parties, they must be respected. Since dismiss complaint on that ground alone
there was an agreement to abide by the foregoing 2. BUT if upon hearing it is shown to be the real issue,
regulations of the military facility, judicial action is no case should be dismissed.
longer necessary to evict respondents and intervenors from
the military quarters. Resolving defense of ownership

1. Defesne of ownership does not divest the court of witnesses and other evidence of factual
its jurisdiction. issues defined in the order.
2. Even if question of ownership raised, court may
pass upon it only to determine question of Judgment
possession, subject to conditions; Within 30 days after receipt of affidavits and position papes
a. Issue of possession cannot be resolved or expriation of period to file the same, the court shall
without deciding issue of ownership render judgment
b. Issue of ownership resolved only to
determine possession If court finds that the allegations are true, judgment for the
plaintiff.
Note:
1. Judgment on FE or UD conclusive only on Judgment shall be for:
possession not on title or not affect ownership. 1. Restitution of premises and
2. In case conciliation required and not done, case 2. Payment of sun justly due as arrears of rent, atty’s
should be dismissed. fees and costs
Pleadings allowed in FE and UD:

1. Complaint IMMEDIATE EXECUTION OF JUDGEMENT (MTC) (BAR
2. Compulsory counterclaim 1997;2017)
3. Cross-claim pleaded in answer and 1. Under Sec.19 of Rule 70, a judgment on a forcible
4. Answers entry and detainer case is immediately
executory to avoid injustice to a lawful possessor,
Preliminary injunction; how to obtain possession and the court’s duty to order the execution is
A possessor deprived of his possession through forcible practically ministerial. (Bugarin v. Palisoc, 476
entry or unlawful detainer may, within five (5) days from SCRA 587,594)
the filing of the complaint, present a motion in the action 2. The rule mandating the immediate execution of
for forcible entry or unlawful detainer for the issuance of a judgement in an ejectment case applies when the
writ of preliminary mandatory injunction to restore him in judgement is against the defendant. Under
his possession. Sec.19 of Rule 70, execution shall issue
immediately upon motion “If judgment is rendered
The court shall decide the motion within thirty (30) days against the defendant xxx.” Conversely, the
from the filing thereof. judgement is not immediately executory if it is
rendered in favor of the defendant and against the
Preliminary injunction when case is on appeal to RTC plaintiff.
1. If judgment of MTC appealed, RTC may issue Writ
DECISION OF THE RTC ON APPEAL IS IMMEDIATELY
of preliminary mandatory injunction to restore
EXECUTORY
plaintiff in his possession – upon his motion, filed
10 days from perfection of appeal. Grant of writ 1. Once the RTC decides on the appeal, such decision,
predicated upon a finding that against the defendant shall be immediately
a. Appeal is frivolous executory, without prejudice to an appeal (Sec.
b. Appeal is prima facie meritorious 21, Rule 70 Rules of Court).
2. Note, however, the phraseology of Sec 21 of the
Preliminary conference; submission of affidavits and 1991 Rule on Summary Procedure which
position papers provides:
1. Preliminary conference shall be held not later than “xxx The decision of the Regional Trial
30 days after last answer filed Court in civil cases governed by this Rule,
a. Pre trial not held; no trial in FE and UD including forcible entry and unlawful
cases detainer, shall be immediately executory
2. No postponement of prelimnary conference without prejudice to a further appeal that
granted XPT for highly meritorious grounds maybe taken therefrom.”
3. Appearance of plaintiff in preliminary conference
mandatory HOW TO STAY IMMEDIATE EXECUTION OF THE
a. Failure to appear shall cause dismissal of JUDGEMENT (BAR 1990,2009;2017)
complaint
b. If defendant appears but plaintiff absent, 1. The defendant must take the following steps to
former entitled to judgment in his stay the execution of the judgement:
counterclaim. (vice versa if plaintiff (a) Perfect an appeal;
appears) (b) File a supersedeas bond to pay for the pay
c. Within 5 days from termination of the rents, damages, and costs accruing
preliminary conference, court shall issue down to the time of the judgment appealed
order stating matters taken up from; and
d. Within 10 days from receipt of order, (c) Deposit periodically with the RTC, during the
parties shall submit affidaits of their pendency of the appeal, the adjudged
amount of rent due under the contract or if

there be no contract, the reasonable value PERSONS BOUND BY THE JUDGEMENT IN EJECTMENT
of the use and occupation of the premises CASES
(Bugarin v. Palisoc, 476 SCRA 587,595 Sec.
19, Rule 70, Rules of Court)  An ejectment suit is an action in personam.
 As a rule, the judgement in ejectment cases is
2. All the above requisites must concur. binding only upon the parties properly
impleaded and given opportunity to be heard.
Thus, even if the defendant had appealed and filed  However, the judgement may become binding on
a supersedeas bond, but failed to pay the accruing anyone who has not been impleaded if he or she is
rentals, the appellate court could upon motion of a:
the plaintiff, with notice to the defendant, and upon (a) Trespasser, squatter, or agent of the
proof of such failure, order the immediate defendant fraudulently occupying the
execution of the appealed decision without property to frustrate the judgement;
prejudice to the appeal taking its course. Such (b) Guest or occupant of the premises with the
deposit, like the supersedeas bond, is a permission of the defendant;
mandatory requirement; hence if it is not (c) A transferee pendente lit;
complied with, execution will issue as a matter of (d) Sublessee;
right. (Antonio v. Geronimo 476 SCRA 340,349) (e) Co-lessee; or
(f) Member of the family, relative, or privy of
3. In other words, the supersedeas bond covers the the defendant. (Sunflower Neighborhood
monetary judgement of the lower court. If the Association v. CA, 410 SCRA 318, 322 citing
judgement does not make any pronouncement as Oro Cam Enterprises, Inc v. CA, 319 SCRA
to the pecuniary liability of the defendant, the bond 444)
shall not be required. Attorney’s fees are not
RULE 71
covered by a supersedeas bond. (Once v. Gonzales
CONTEMPT
76 SCRA 258,261). (BAR 1990)
MEANING OF CONTEMPT OF COURT
4. In a decision that made pronouncements as to the
1. Contempt of court has been defined as a
monetary liability of the defendant in an ejectment
willful disregard or disobedience of a public
suit, the defendant filed a notice of appeal on time
authority.
but did not file a supersedeas bond. Nevertheless,
the judge denied the plaintiff’s motion for
In its broad sense, contempt is a disregard
execution contending that the appeal was
of, or disobedience to, the rules or orders of
perfected on time.
a legislative or judicial body or an
interruption of its proceedings by disorderly
The Court, ruling on the administrative case
behavior or insolent language in its presence
against the judge held, granting the plaintiff’s
or so near thereto as to disturb its
motion for immediate execution became his
proceedings or to impair the respect due to
ministerial duty upon the defendant’s failure to file
such a body.
the sufficient supersedeas bond and that the
execution of the decision could not be stayed by
In its restricted and more usual sense,
the mere taking of an appeal. The perfection of
contempt comprehends a despising of the
the appeal must be coupled with the filing of
authority, justice, or dignity of a court.
the requisite bond. (Ferrer v Rabaca, 632 SCRA
204, 214-215)
2. To be considered contemptuous,
 it was held that “an act must be
WHERE TO APPEAL; WRIT OF PRELIMINARY
clearly contrary to or prohibited by
MANDATORY INJUNCTION
the order of the court or tribunal”
and
1. The judgement or final order of the court is
 that the act “which is forbidden or
appealable to the appropriate RTC (Sec. 22, B.P.
required to be done is clearly and
129, as amended)
exactly defined, so that there can
2. The mode of appeal is the same as in ordinary civil
be no reasonable doubt or
actions under Rule 40 of the Rules of Court
uncertainty as to what specific act
where a notice of appeal is filed with the docket
or thing is forbidden or required.”
fee paid in the court of origin, which is the MTC.
3. On appeal, recall that upon motion of the plaintiff,
Thus, a Labor Arbiter (BPI v. Calanza, 633
within 10 days from the perfection of the appeal
SCRA 186, 195)
from the RTC, the latter may issue a writ of
preliminary mandatory injunction to restore the
(NPC Drivers & Mechanics Assocation v.
plaintiff in possession if the court is satisfied that
NPC, G.R. No. 156208, June 30, 2014)
the defendant’s appeal is frivolous or dilatory, or
that the appeal of the plaintiff is prima facie
CONTEMPT POWER IS INHERENT IN COURTS
meritorious. (Sec. 20, Rule 70 Rules of Court)

1. The power to punish for contempt is inherent in as to obstruct or in his official

all courts, and need not be specifically granted by interrupt the transactions;
statute. It lies at the core of the administration of proceedings before
a judicial system. the same; b. Disobedience of or
resistance to a
2. Such power should be exercised on the b. Disrespect toward lawful writ, process,
preservative not on the vindictive, principle. Only the court; order or judgement
occasionally should the court invoke its inherent of a court; including
power in order to retain that respect, without c. Offensive the act of a person
which, the administration of justice will falter or personalities toward who, after being
fail. others; dispossessed or
d. Refusal to be sworn ejected from any
PURPOSES AND NATURE OF CONTEMPT or to answer as a real property by the
PROCEEDINGS witness; and judgment or
1. Contempt proceedings have dual function: process of any
(a) Vindication of public interest by e. Refusal to subscribe court of competent
punishment of contemptuous conduct; an affidavit or jurisdiction, enters
and deposition when or attempts or
(b) Coercion to compel the contemnor to do lawfully required to induces another to
what the law requires him to uphold the do so. (Sec.1 Rule enter into or upon
power of the Court, and also to secure the 71, ROC) such real property,
rights of the parties to a suit awarded by for the purpose of
the Court 2. The acts of a party or executing acts of
2. The reason behind the power to punish for a counsel which ownership or
contempt is that respect for the courts guarantees constitutes willful and possession, or in
the stability of their institution; without such deliberate forum any manner
guarantee the institution of the courts would be shopping (Sec 5, Rule disturbs the
resting on a very shaky foundation. (Lorenzo 71 ROC) possession given to
Shipping Corporation v. Distribution Association the person
Management of the Philippines, 656 SCRA 331, 3. Unfounded adjudged to be
343-344; See also Oca v. Custodio, G.R. No. accusations, entitled thereto
199825, July 26, 2017) allegations, or words (Bar 1995, 2012)
tending to embarrass c. Any abuse of or any
DIRECT AND INDIRECT CONTEMPT the court or bring it in unlawful
Contempt of court is of two (2) kinds: disrepute have no interference with
1. Direct Contempt place in a pleading.( the processes or
2. Indirect Contempt Re: Letter dated 21 proceedings of a
February 2005 of Atty court not
NATURE OF INDIRECT CONTEMPT Noel S. Sorreda, 464 constituting direct
The proceedings for punishment of indirect contempt are SCRA 32,41) (Bar contempt;
criminal in nature. This form of contempt is conduct 2012)
directed against the authority and dignity of the court or a d. Any improper
judge acting judicially. 4. Contempt of court conduct tending,
presupposes a directly or
DIRECT CONTEMPT INDIRECT CONTEMPT contumacious indirectly, to
attitude, a flouting impede, obstruct,
Definition arrogant or degrade the
Committed in the It is not committed in the belligerence, and a administration of
presence of or so near a presence or so near a court defiance of the court. justice.
court as to obstruct or but constitutes contempt. (Laurel v. Francisco,
interrupt the proceedings Any improper conduct 624 SCRA 1, 48-50, e. Assuming to be an
before the same. tending, directly or July 6, 2010). attorney or an
indirectly, to impede, officer of a court
obstruct, or degrade the and acting as such
administration of justice. without authority;
Specific acts punishable (Bar 2012) or
1. Any of the following 1. Any of the following
f. Failure to obey a
acts constitutes direct acts constitutes indirect
subpoena duly
contempt: contempt:
served (Bar 2012)
a. Misbehavior of an
a. Misbehavior in the officer of a court in
g. The rescue, or
presence of or so the performance of
near a court his official duties or attempted rescue
of a person or

property in the equivalent or higher equivalent or higher

custody of an rank, the penalty is rank, he may be
officer by virtue of by a fine not punished by a fine not
an order or process exceeding P2,000.00 exceeding P thirty
of a court held by or imprisonment not thousand pesos or
him (Sec 3, Rule 71 exceeding ten (10) imprisonment not
ROC) days, or both, or exceeding six (6)
months, or both.
2. The failure by counsel (b) If committed against a
to inform the court of lower court, the (b) If committed against a
the death of his client penalty is by a fine not lower court, he may be
(Bar 1998) exceeding P 200.00 or punished by a fine not
imprisonment not exceeding five thousand
3. The act of re-entry by a exceeding one (1) pesos or imprisonment
party into the land from day, or both. (Sec. 2 not exceeding one (1)
which he was ordered Rule 71, ROC) month, or both.
by the court to vacate (c) When the contempt (c) If the contempt
even after the lapse of consists in the refusal consists in the
5 years from the date or omission to do an violation of a writ of
of execution of the act which is yet in the injunction, TRO or
judgement. (Bar power of the status quo order,
1995) respondent to he may also be
perform, he may be ordered to make
4. In a petition for writ of imprisoned by order of complete
Kalikasan, the court the court concerned restitution to the
may, after hearing until he performs it party injured by
punish the respondent such violation of the
who refuses or unduly property involved
delays the filing of a or such amount as
return, or who makes a may be alleged and
false return (Sec 13, proved. (Sec.7 Rule
Rule 7 Part III Rules of 71, ROC)
Procedure on
Environmental Cases) (d) Where the act was
committed against
5. In a petition for writ of a persons or entity
Kalikasan, the court exercising quasi-
may, after hearing any judicial functions,
person who disobeys or the penalty
resists a lawful order of imposed shall
the court (Sec 13, Rule depend upon the
7 Part III Rules of provisions of the
Procedure on law authorizing a
Environmental Cases) penalty for
contempt against
6. Failure to remit and/or such persons or
withhold or any delay in entities. Rule 71
the remittance of however shall have
support to the woman suppletory effect.
and/or her child (Sec.12 Rule 71,
without justifiable ROC)
cause (Sec. 8[g], R.A. Remedy of a person adjudged
9262] A person adjudged may A person adjudged may
not appeal therefrom, but appeal to the proper court
Necessity for Hearing may avail himself of the as in criminal cases. (Sec
No formal proceeding It can be punished AFTER remedies of certiorari or 11, Rule 71 ROC)
required. It can be charge and hearing only. prohibition. (Sec 2, Rule
punished summarily (Sec.3 Rule 71, ROC) 71 ROC)
without hearing. Effect
(Sec.1 Rule 71, ROC) The execution of the Execution of the judgment
Penalties judgment shall be or final order shall not be
(a) If committed against (a) If committed against a suspended pending suspended until a bond is
RTC or a court of RTC or a court of resolution of such filed by the person
petition, provided such adjudged in contempt, in an

person files a bond fixed amount fixed by the court why he should not be punished for contempt. (Sec
by the court which from which the appeal is 4, Rule 71 Rules of Court)
rendered the judgment taken, conditioned that if
and conditioned that he the appeal be decided (b) In all other cases, the charge is commenced by a
will abide by and perform against him he will abide by verified petition with supporting particulars and
the judgment should the and perform the judgment certified true copies of documents or papers
petition be decided or final order. (Sec 11, Rule involved therein, and upon full compliance with
against him. (Sec 2, Rule 71 ROC) the requirements for filing initiatory pleadings for
71 ROC) civil actions in the court concerned.
CLEAR AND PRESENT DANGER RULE IN CONTEMPT Prior to the 1997 amendment of the rules, a mere
1. As important as the maintenance of freedom of motion was tolerated by the courts in initiating
speech, is the maintenance of the independence of indirect contempt. After the amendments
the Judiciary. The “clear and present danger however, such practice can no longer be
rule” may serve as an aid in determining the countenanced and a conviction for indirect
proper constitutional boundary between these two contempt by mere motion suffers from a
rights. serious procedural defect. (For further reading,
see Regalado v. Go, 514 SCRA 616,629)
2. Clear and present danger rule mean that the evil
consequences of the comment must be “extremely 3. The petition shall likewise comply with the
serious and the degree of imminence extremely requirements for filing initiatory pleadings for civil
high” before an utterance can be punished. There actions in the court concerned. Hence, must
must exist a clear and present danger that contain a certificate against forum shopping
the utterance will harm the administration of mandated under Section 5 of Rule 7.
justice.
4. If the contempt charges arose out of or are related
3. Freedom of speech and press should not be to a principal action pending in the court, the
impaired through the exercise of the punish for petition for contempt shall allege that fact but said
contempt of court unless there is no doubt that the petition shall be docketed, heard and decided
utterances in question are a serious and imminent separately.
threat to the administration of justice. It must
constitute imminent and not merely a likely The court however, in the exercise of its
threat. (Marantan v. Diokno, G.R. No. 205956, discretion, may order the consolidation of the
February 12, 2014). contempt charge and the principal action for joint
hearing and decision. (Sec 4, Rule 71 Rules of
4. It was ruled that for a comment to be considered Court)
as contempt of court “it must really appear” that
such does impede, interfere with and embarrass NECESSITY FOR HEARING
the administration of justice. A hearing is required in order to resolve a charge of indirect
contempt; the respondent to the charge may not be
HOW A PROCEEDING FOR INDIRECT CONTEMPT IS convicted on the basis of the written pleadings alone.
COMMENCED (BAR 2012)
1. Generally, the procedural requisites before the If the hearing is not ordered to be had forthwith, the
accused may be punished for indirect contempt respondent may be released from custody upon filing a
are: bond, for his appearance at the hearing of the charge. (Sec
(a) Charge in writing; 6, Rule 71 Rules of Court)
(b) Opportunity for the person charged to
appear and explain his conduct; and COURT WHERE THE CHARGE FOR INDIRECT
(c) Opportunity to be heard by himself or CONTEMPT IS TO BE FILED
counsel (a) Where the charge for indirect contempt has been
(Barredo-Fuentes v. Albarracin, 456 SCRA committed against a RTC or a court of
120,131) equivalent or higher rank, or against an officer
2. There are two ways by which a person can be appointed by it, the charge may be filed with such
charged with indirect contempt: court. (Bar 2012)
(a) Through verified petition; and
(b) By order of formal charge initiated by the (b) Where such contempt has been committed against
court motu proprio a lower court, the charge may be filed with the
(Sec 4, Rule 71 Rules of Court) RTC of the place in which the lower court is sitting;
but the proceedings may also be instituted in such
(a) If the charge is initiated motu proprio by the lower court subject to appeal to the RTC of such
court against which the contempt was committed, place in the same manner as provided in Sec. 2,
it is commenced by an order or any other formal Rule 71. (Sec. 5, Rule 71 Rules of Court)
charge requiring the respondent to show cause

(c) Unless otherwise provided by law, this Rule shall OTHER KINDS OF CONTEMPT; CRIMINAL AND CIVIL
apply to contempt committed against persons, CONTEMPT
entities, bodies or agencies exercising quasi- Proceedings for contempt are sui generis, in nature
judicial functions, the charge shall be filed with RTC criminal, but may be resorted to in civil, as well as in
of the place wherein the contempt was committed criminal actions, and independently of any action. They are
(Sec. 12, Rule 71 Rules of Court) of two classes, the criminal or punitive and the civil or
remedial.
IMPRISONMENT UNTIL THE ORDER IS OBEYED
1. Section 8 of Rule 71 provides for indefinite (a) A criminal contempt consists in conduct directed
incarceration in contempt proceeding to compel a against the authority and dignity of the court or a
party to comply with the order of the court. judge acting judicially.
(b) A civil contempt consists in failure to do
“When the contempt consists in the refusal or something ordered to be done by a court or by a
omission to do an act which is yet in the power judge for the benefit of the opposing party.
of the respondent to perform, he may be
imprisoned by order of the court concerned CRIMINAL CONTEMPT CIVIL CONTEMPT
until he performs it.”
Nature of contempt
2. The punishment is imposed for the benefit of a Punitive in nature Remedial in nature
complainant or a party to a suit who has been
injured, aside from the need to compel Purpose
performance of the orders or decrees of the court, Purpose is primarily Purpose is primarily
which the contemnor refuses to obey although able punishment to vindicate compensatory or
to do so. In effect, it is within the power of the the dignity and authority of remedial to enforce
person adjudged guilty to set himself free. the court and protect the compliance with an order
interest of the general of the court for the benefit
3. It is only the judge, who orders the confinement public of a party in whose favor
of a person for contempt of court, who can issue the order runs.
the Order of Release. Proceedings
The defendant is presumed Proof required is more than
RELEASE OF RESPONDENT innocent and the burden is mere preponderance of
A person imprisoned for contempt may be discharged on the prosecution to evidence
provided that the interest of the public will not be prove the charges beyond
prejudiced by his release. The release shall be upon the reasonable doubt
order of the court which ordered the imprisonment (Sec. CRITICISM OF COURTS
10, Rule 71 Rules of Court) As an officer of the court, a lawyer may criticize the court.
As long as they are made in properly respectful terms and
CONTEMPT AGAINST QUASI JUDICIAL ENTITIES through legitimate channels.
1. The rules on contempt under Rule 71 apply to
contempt committed against persons, entities, CONTEMPT IN RELATION TO EXECUTION OF
bodies or agencies exercising quasi-judicial JUDGEMENTS
functions. Said rules also suppletorily apply to rules 1. Generally, contempt is not a means of enforcing a
on contempt which may, pursuant to law, be judgement.
adopted by such quasi-judicial bodies. (Sec. 12, 2.
Rule 71 Rules of Court) 3. When the subject of execution is a special
judgement, which directs the performance of an
2. The court that has jurisdiction over charges for act other than the payment of money, sale, or
indirect contempt committed against quasi-judicial delivery of property or those other acts as
bodies is the Regional Trial Court of the place mentioned in Secs. 9 and 10 of Rule 39, the
wherein the contempt has been committed. judgement can be complied with only by
(Sec. 12, Rule 71 Rules of Court) judgement obligor or officer so directed in the
judgement, like in mandamus, is specifically
3. Rule 71 of the Rules of Court does not require the directed to the person required to obey the same.
labor arbiter or NLRC to initiate indirect contempt If he disobeys the judgement, he may be punished
proceedings before the trial court. This mode is to for contempt. (Sec. 11, Rule 39, Rules of Court)
be observed only when there is no law granting The refusal constitutes a violation of a writ, process
them contempt powers. As is clear under Article or order directed to the party required to obey the
218(d) of the Labor Code, the labor arbiter or the same and falls squarely within the purview of
Commissioner is empowered or has jurisdiction to Sec.3(b) of Rule 71 in relation to Sec. 11 of Rule
hold the offending party or parties in direct or 39.
indirect contempt.

4. An office, who disobeys a writ of certiorari against

him, shall be punished for contempt. (Sec. 9 Rule
65, Rules of Court)
CONTEMPT POWERS OF THE LEGISLATURE;

LEGISLATIVE INVESTIGATIONS
1. The contempt power of the legislature has been
traditionally exercised in relation to its power to
conduct legislative inquiries. Section 21 of
Article VI of the Philippine Constitution provides:
“The Senate or the House of Representatives
or any of its respective committees may
conduct inquiries in aid of legislation in
accordance with its duly published rules of
procedure. The rights of persons appearing in
or affected by such inquiries shall be
respected.”
2. There is no express constitutional provision which

vests Congress with the power to cite non-
members of the legislature for contempt. This
power has, however, been invoked by Congress as
a means of preserving its authority and dignity.
(Arnault v. Nazareno, 87 Phil. 29[1950]
CONTEMPT POWERS OF LOCAL LEGISLATIVE BODIES

The case of Negros Oriental II Electric Cooperative, Inc. v.
Sangguniang Panlungsod of Dumaguete, G.R. No. 72492,
November 5, 1987, instructs that local legislative bodies do
not possess the contempt power of Congress.
The end
“Ariel maliwanag na ba?…anong kulay ng langit?…at ang

dagat?…ang mga mangingisda nandiyan na ba?…Ariel…ang
ganda ng mundo!…ang sarap mabuhay!”
Vilma Sanots, Pahiram ng Isang Umaga, 1989.

ProvRem 2nd Exam Book Summary in Lieu of TSN

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

ProvRem 2nd Exam Book Summary in Lieu of TSN

Uploaded by

Copyright:

Available Formats

Provisional Remedies |2nd Exam Book Summary

Special Civil Actions any of these

Examples of rules not common to both civil actions

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 1

petition within 10 the time allowed if any claimant fails to

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 2

It can be filed with SC 1. An interpleader usually originates from a

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 3

of the rentals due because of conflicting claims Note: except actions

Illustrations How commenced

Summons; order to interplead

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 4

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 5

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 6

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 7

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 8

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 9

4.In a petition for certiorari under Rule 64 in relation to Rule

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 10

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 11

The remedy is not appropriate. He should have appealed

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 12

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 13

tribunal and prevent an hearings, and draw conclusions from them as a

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 14

Excess of jurisdiction vs. Absence of jurisdiction

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 15

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 16

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 17

 Sandiganbayan Filing of petition does not stay proceedings;

Rationale: A petition for certiorari is an original action and

Defendant then filed a petition for certiorari with the CA.

JUDICIAL COURTESY IS NOT THE PREVAILING

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 18

Failure of the public respondent to proceed with the

However, Judicial Courtesy remains to be the Determination of the completeness or sufficiency

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 19

accordance with the applicable provisions of  Unless if finds a hearing

c) Eighteen (18) clearly legible

 The court has the following options: CONTEMPT FOR DISOBEDIENCE

2. If after such hearing or submission of memoranda RELIEF

o Render judgment for the relief prayed It may also include:

o Instead, may require the filing of the

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 20

LIBERAL CONSTRUCTION; WHEN A RULE 45 EXAMPLES OF SITUTATION WHERE CERTIORARI IS

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 21

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 22

Note: Although a petition for certiorari is prohibited in  officer

 Proper remedy to obtain a reversal of judgment on

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 23

c) MINISTERIAL FUNCTION – an officer or tribunal

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 24

unlawfully neglects the performance

PRAYER IN A PETITION FOR MANDAMUS

a.) That judgment be rendered commanding the

b.) That the respondent pays the damages sustained by

4.) A petition for mandamus may be filed when:

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 25

Ministerial Act Discretionary Act

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 26

execution of which is governed by Sec. 11, Rule 39

As to Available against an Directed against

Alapan, Aranjuez, Arellano, Bejano, Furia, Gumana, Maliones, Tan | 27

a.) Regional Trial Court exercising jurisdiction