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PROVISIONAL REMEDIES AND SPECIAL CIVIL ACTIONS

PART II

3.18. Provisional remedies

Provisional remedies are writs and processes available during the pendency of the action

which may be resorted to by a litigant to preserve and protect certain rights and interests

therein pending rendition, and for purposes of the ultimate effects, of a final judgment in the

case. They are provisional because they constitute temporary measures availed of during the

pendency of the action, and they are ancillary because they are mere incidents in and are

dependent upon the result of the main action. The subject orders on the matter of support

pendente lite are but an incident to the main action for declaration of nullity of marriage. (Ma.

Carminia C. Calderon (formerly Ma. Carminia Calderon-Roxas), represented by her attorney-in-

fact, Marycris V. Baldevia Vs. Jose Antonio F. Roxas,G.R. No. 185595. January 9, 2013)

Nature of provisional remedies

Provisional remedies are not causes of action in themselves but merely adjuncts to a

main suit. They are temporary measures availed of during the pendency of the action and

ancillarybecause they are mere incidents. [Estares v. Court of Appeals, 459 SCRA 604]

Purpose of provisional remedies

The provisional remedies denominated attachment, preliminary injunction, receivership,

and delivery of personal property, provided in Rules 59, 60, 61, and 62 of the Rules of Court,

respectively, are remedies to which parties litigant may resort for the preservation or protectionof their rights or interest, and for no other purpose, during the pendency of the principal action.

If an action, by its nature, does not require such protection or preservation, said remedies can

not be applied for and granted. [Calo v. Roldan, G.R. No. L-252, March 30, 1946]

Jurisdiction over provisional remedies

MTC has exclusive original jurisdiction over civil actions and probate proceedings, testate

and intestate, including the grant of provisional remedies in proper cases, where the value of

the personal property, estate, or amount of the demand does not exceed One hundred

thousand pesos (P100,000.00) or, in Metro Manila where such personal property, estate, oramount of the demand does not exceed Two hundred thousand pesos (P200,000.00) exclusive

of interest damages of whatever kind, attorney's fees, litigation expenses, and costs. [B.P. 129,

Sec. 33]

3.18.3. Preliminary attachment

A preliminary attachment may be defined, paraphrasing the Rules of Court, as the

provisional remedy in virtue of which a plaintiff or other party may, at the commencement of

the action or at any time thereafter, have the property of the adverse party taken into the

custody of the court as security for the satisfaction of any judgment that may be

recovered. [Davao Light v. Court of Appeals, 204 SCRA 343]

Grounds for issuance of writ of attachment

(a) In an action for the recovery of a specified amount of money or damages, other than
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moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or

quasi-delict against a party who is about to depart from the Philippines with intent to defraud

his creditors;

(b) In an action for money or property embezzled or fraudulently misapplied or

converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor,

broker, agent, or clerk, in the course of his employment as such, or by any other person in afiduciary capacity, or for a willful violation of duty;

(c) In an action to recover the possession of property unjustly or fraudulently taken,

detained or converted, when the property, or any part thereof, has been concealed, removed,

or disposed of to prevent its being found or taken by the applicant or an authorized person;

(d) In an action against a party who has been guilty of a fraud in contracting the debt or

incurring the obligation upon which the action is brought, or in the performance thereof;

(e) In an action against a party who has removed or disposed of his property, or is about

to do so, with intent to defraud his creditors; or

(f) In an action against a party who does not reside and is not found in the Philippines, or

on whom summons may be served by publication. [Rule 57, Sec. 1]

Requisites

1) The case must be any of those where preliminary attachment is proper

2) The applicant must file a motion

3) The applicant must show by affidavit that there is of sufficient security for the claim

sought to be enforced; that the amount claimed in the action is as much as the sum of which

the order is granted above all counterclaims

4) The applicant must post a bond executed to the adverse party (attachment bond)

(Section 3, Rule 57 of the Rules of Court)

Attachment will not lie if there is an existing real estate mortgage

The writ will not be issued if a real estate mortgage exists to secure the obligation even if

instead of filing an action for foreclosure, an action for a sum of money was instead filed.

[Salgado v. Court of Appeals, G.R. No. 55381, March 26, 1984]

Fraud as a ground for issuance of writ of attachment: Requisites:

A writ of preliminary attachment is too harsh a provisional remedy to be issued based on

mere abstractions of fraud. Rather, the rules require that for the writ to issue, there must be a

recitation of clear and concrete factual circumstances manifesting that the debtor practiced

fraud upon the creditor at the time of the execution of their agreement in that said debtor had

a preconceived plan or intention not to pay the creditor. [Equitable v. Special Steel, G.R. No.

175350, June 13, 2012]

Attachment is dependent on the main suit

The remedy of attachment is adjunct to the main suit, therefore, it can have no

independent existence apart from a suit on a claim of the plaintiff against the defendant. When

Aboitiz and Company, Inc. withdrew its complaint, the attachment ceased to have a leg to standon. [Adlawan v. Tomol, G.R. No. L-63225, April 3, 1990]

Issuance and contents of order of attachment; affidavit and bond


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An order of attachment may be issued either ex parteor upon motion with notice and

hearing by the court in which the action is pending, or by the Court of Appeals or the Supreme

Court, and must require the sheriff of the court to attach so much of the property in the

Philippines of the party against whom it is issued, not exempt from execution, as may be

sufficient to satisfy the applicant's demand, unless such party makes deposit or gives a bond as

hereinafter provided in an amount equal to that fixed in the order, which may be the amountsufficient to satisfy the applicant's demand or the value of the property to be attached as stated

by the applicant, exclusive of costs. Several writs may be issued at the same time to the sheriffs

of the courts of different judicial regions. [Rule 57, Sec. 2]

Requirements for the issuance of the writ:

An order of attachment shall be granted only when it appears by the affidavit of the

applicant, or of some other personwho personally knows the facts, that a sufficient cause of

action exists, that the case is one of those mentioned in section 1 hereof, that there is no other

sufficient security for the claimsought to be enforced by the action, and that the amount due

to the applicant, or the value of the property the possession of which he is entitled to recover, is

as much as the sum for which the order is granted above all legal counterclaims. The affidavit,

and the bond required by the next succeeding section, must be duly filed with the court before

the order issues. [Rule 57, Sec. 3]

The party applying for the order must thereafter give a bond executed to the adverse

party in the amount fixed by the court in its order granting the issuance of the writ ,

conditioned that the latter will pay all the costs which may be adjudged to the adverse party

and all damages which he may sustain by reason of the attachment, if the court shall finally

adjudge that the applicant was not entitled thereto. [Rule 57, Sec. 4]

Purpose of ex-parte issuance of writ of attachment

Ex parte grant of the writ is allowed because it is possible that during the course of the

hearing, the part against whom the writ is sought may dispose of his property or abscond

before the writ is issued. [Filinvest v. Relova, G.R. No. L-50378, September 30, 1982]

Rule on prior or contemporaneous service of summons

The sheriff enforcing the writ shall without delay and with all reasonable diligence

attach, to await judgment and execution in the action, only so much of the property in thePhilippines of the party against whom the writ is issued, not exempt from execution, as may be

sufficient to satisfy the applicant's demand, unless the former makes a deposit with the court

from which the writ is issued, or gives a counter-bond executed to the applicant, in an amount

equal to the bond fixed by the court in the order of attachment or to the value of the property

to be attached, exclusive of costs. No levy on attachment pursuant to the writ issued under

section 2 hereof shall be enforced unless it is preceded, or contemporaneously accompanied, by

service of summons, together with a copy of the complaint, the application for attachment the

applicant's affidavit and bond, and the order and writ of attachment, on the defendant within

the Philippines. [Rule 57, Sec. 5 (1)]

Exceptions

The requirement of prior or contemporaneous service of summons shall not apply

where the summons could not be served personally or by substituted service despite diligent


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efforts, or the defendant is a resident of the Philippines temporarily absent therefrom, or the

defendant is a non-resident of the Philippines, or the action is one in remor quasi in rem. [Rule

57, Sec. 5 (2)]

Manner of attaching real and personal property; when property attached is claimed by third

person

Real and personal property shall be attached by the sheriff executing the writ in the

following manner:

(a) Real property, or growing crops thereon, or any interest therein, standing upon the

record of the registry of deeds of the province in the name of the party against whom

attachment is issued, or not appearing at all upon such records, or belonging to the party

against whom attachment is issued and held by any other person, or standing on the records of

the registry of deeds in the name of any other person, by filing with the registry of deeds a copy

of the order, together with a description of the property attached, and a notice that it is

attached, or that such real property and any interest therein held by or standing in the name of

such other person are attached, and by leaving a copy of such order, description, and notice

with the occupant of the property, if any, or with such other person or his agent if found within

the province. Where the property has been brought under the operation of either the Land

Registration Act or the Property Registration Decree, the notice shall contain a reference to the

number of the certificate of title, the volume and page in the registration book where the

certificate is registered, and the registered owner or owners thereof.

The registrar of deeds must index attachments filed under this section in the names of

the applicant, the adverse party, or the person by whom the property is held or in whose name

it stands in the records. If the attachment is not claimed on the entire area of the land coveredby the certificate of title, a description sufficiently accurate for the identification of the land or

interest to be affected shall be included in the registration of such attachment;

(b) Personal property capable of manual delivery, by taking and safely keeping it in his

custody, after issuing the corresponding receipt therefor.

(c) Stocks or shares, or an interest in stocks or shares, of any corporation or company, by

leaving with the president or managing agent thereof, a copy of the writ, and a notice stating

that the stock or interest of the party against whom the attachment is issued is attached in

pursuance of such writ;

(d) Debts and credits, including bank deposits, financial interest, royalties, commissions

and other personal property not capable of manual delivery, by leaving with the person owing

such debts, or having in his possession or under his control, such credits or other personal

property, or with his agent, a copy of the writ, and notice that the debts owing by him to the

party against whom attachment is issued, and the credits and other personal property in his

possession, or under his control, belonging to said party, are attached in pursuance of such writ;

(e) The interest of the party against whom attachment is issued in property belonging to

the estate of the decedent, whether as heir, legatee, or devisee, by serving the executor or

administrator or other personal representative of the decedent with a copy of the writ and

notice that said interest is attached. A copy of said writ of attachment and of said notice shall

also be filed in the office of the clerk of the court in which said estate is being settled and

served upon the heir, legatee or devisee concerned.


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If the property sought to be attached is in custodia legis, a copy of the writ of

attachment shall be filed with the proper court or quasi-judicial agency, and notice of the

attachment served upon the custodian of such property. [Rule 57, Sec. 7] (See also Sec. 5)

Discharge of attachment and the counter-bond

Preliminary attachment shall be discharged when it is established that:

1) The debtor has posted a counterbond or has made the requisite cash bond [Rule 57,

Sec. 12];

2) The attachment was improperly or irregularly issued as where there is no ground for

attachment under Section 1 of this Rule [Rule 57, Sec. 13];

3) The bond filed is defective or insufficient [Rule 57, Sec. 13];

4) The attachment is excessive, but the discharge shall be limited to the excess [Rule 57,

Sec. 13];5) The property attached is exempt from execution, hence exempt from preliminary

attachment [Rule 57, Sec. 2 and 5]; or

6) The judgment is rendered against the attaching creditor [Rule 57, Sec. 19]

Discharge of the writ of attachment must be made after hearing

A discharge of the attachment must be made only after hearing. Ex parte discharge is a

disservice to the orderly administration of justice. [Peroxide Philippines Corporation v. Court of

Appeals, G.R. No. 92813, July 31, 1991]

Purpose of counter-bond

Jurisprudence adds that counter-bonds are also replacements of the property formerly

attached, and just as the latter, may be levied upon final judgment. [ Security Pacific Assurance

Corporation v. Tri-Infante, 468 SCRA 526]

Satisfaction of judgment out of property attached

If judgment be recovered by the attaching party and execution issue thereon, the sheriff

may cause the judgment to be satisfied out of the property attached, if it be sufficient for that

purpose in the following manner:

(a) By paying to the judgment obligee the proceeds of all sales of perishable or other

property sold in pursuance of the order of the court, or so much as shall be necessary to satisfy

the judgment;

(b) If any balance remains due, by selling so much of the property, real or personal, as

may be necessary to satisfy the balance, if enough for that purpose remain in the sheriff's

hands, or in those the clerk of the court;

(c) By collecting from all persons having in their possession credits belonging to thejudgment obligor, or owing debts to the latter at the time of the attachment of such credits or

debts, the amount of such credits and debts as determined by the court in the action, and

stated in the judgment, and paying the proceeds of such collection over to the judgment


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obligee. [Rule 57, Sec. 15]

3.18.4. Preliminary injunction

Preliminary Injunction

A writ of preliminary injunction is an extraordinary event which must be granted only in

the face of actual and existing substantial rights. The duty of the court taking cognizance of a

prayer for a writ of preliminary injunction is to determine whether the requisites necessary for

the grant of an injunction are present in the case before it. In the absence of the same, and

where facts are shown to be wanting in bringing the matter within the conditions for its

issuance, the ancillary writ must be struck down for having been rendered in grave abuse of

discretion. (Palm Tree Estates, Inc., et al. Vs. Philippine National Bank,G.R. No. 159370. October

3, 2012)

Preliminary Injunctive Writ

It is a deeply ingrained doctrine in Philippine remedial law that a preliminary injunctive

writ under Rule 58 issues only upon a showing of the applicants clear legal right being

violated or under threat of violation by the defendant. Clear legal right, within the meaning of

Rule 58, contemplates a right clearly founded in or granted by law. Any hint of doubt or

dispute on the asserted legal right precludes the grant of preliminary injunctive relief. For suits

attacking the validity of laws or issuances with the force and effect of law, as here, the

applicant for preliminary injunctive relief bears the added burden of overcoming the

presumption of validity inhering in such laws or issuances. These procedural barriers to the

issuance of a preliminary injunctive writ are rooted on the equitable nature of such relief,

preserving the status quo while, at the same time, restricting the course of action of the

defendants even beforeadverse judgment is rendered against them. (Executive Secretary, et al.Vs. Forerunner Multi Resources, Inc.,G.R. No. 199324. January 7, 2013)

Requirement of clear and legal right

It is a deeply ingrained doctrine in Philippine remedial law that a preliminary injunctive

relief under Rule 58 issues only upon a showing of the applicants clear legal right being

violated or under threat of violation by the defendant. Clear legal right, within the meaning of

Rule 58, contemplates a right clearly founded in or granted by law. Any hint of doubt or dispute

on the asserted legal right precludes the grant of preliminary injunctive relief. For suits

attacking the validity of laws or issuances with the force and effect of law, as here, theapplicant for preliminary injunctive relief bears the added burden of overcoming the

presumption of validity inhering in such laws or issuances. These procedural barriers to the

issuance of a preliminary injunctive writ are rooted on the equitable nature of such relief,

preserving the status quo while, at the same time, restricting the course of action of the

defendants even before adverse judgment is rendered against them. (Executive Secretary,

Secretary of Finance, Commissioner of Customs, District collector of customs, Port of Aparri,

Cagayan, District Collector of Customs, Port of San Fernando La Union, and Head of the Land

Transportation Office v. Forerunner Multi Resources, Inc.,G.R. No. 199324. January 7, 2013)

Existence of a clear legal right required during the pendency of the action

As such, a writ of preliminary injunction may be issued only upon clear showing of an

existing legal right to be protected during the pendency of the principal action. The requisites of

a valid injunction are the existence of a right and its actual or threatened violations. Thus, to be
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entitled to an injunctive writ, the right to be protected and the violation against that right must

be shown. TML Gasket Industries, Inc. v. BPI Family Savings Bank, Inc.,G.R. No. 188768. January

7, 2013)

What are the grounds for the issuance of writ of injunction?

Section 3, Rule 58 of the Rules of Court lists the grounds for the issuance of a writ of

preliminary injunction:

Sec.3. Grounds for the issuance of preliminary injunction. A preliminary injunction may

be granted when it is established:

(a) that the applicant is entitled to the relief demanded, and the whole or part of such

relief consists un restraining the commission or continuance of the act or acts complained of, or

in requiring the performance of an act or acts, either for a limited period or perpetually;

(b) that the commission, continuance or non-performance of the act or acts complained

of during the litigation would probably work injustice to the applicant; or

(c) that a party, court, agency, or a person doing, threatening, or is attempting to do, or

is procuring or suffering to be done, some act or acts probably in violation of the right of the

applicant respecting the subject of the action or proceeding, and tending to render the

judgment ineffectual

Definitions and differences: preliminary injunction and temporary restraining order; status

quo ante order

Generally, injunction is a preservative remedy for the protection of substantive rights or

interests. It is not a cause of action in itself but merely a provisional remedy, an adjunct to a

main suit. The controlling reason for the existence of the judicial power to issue the writ is that

the court may thereby prevent a threatened or continuous irremediable injury to some of the

parties before their claims can be thoroughly investigated and advisedly adjudicated. [Estares v.

Court of Appeals, supra]

Doctrine of strong arm of equity

It is the strong arm of equity, an extraordinary preemptory remedy that must be used

with extreme caution, affecting as it does the respective rights of the parties. [China Banking

Corporation v. Sps. Ciriaco, G.R. No. 170038, July 11, 2012]

Purpose of injunction

It is issued by the court to prevent threatened or continuous irreparable injury to parties

before their claims can be thoroughly studied and adjudicated. [Manila International Airport

Authority v. Rivera Village, 471 SCRA 358]

Requirements for the issuance of the writ

For an injunctive writ to issue, a clear showing of extreme urgency to prevent irreparable

injury and a clear and unmistakable right to it must be proven by the party seeking it. The
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primary objective of a preliminary injunction, whether prohibitory or mandatory, is to preserve

the status quo until the merits of the case can be heard.

When can a writ of injunction be issued?

A preliminary injunction is granted at any stage of an action or proceeding prior to thejudgment or final order. It persists until it is dissolved or until the termination of the action

without the court issuing a final injunction. [Miriam College Foundation, Inc. v. CA, G.R. No.

127930, December 15, 2000]

When can a temporary restraining order be issued? Purpose:

A restraining order, on the other hand, is issued to preserve the status quo until the

hearing of the application for preliminary injunction which cannot be issued ex parte. Under

Rule 58of the Rules of Court, a judge may issue a temporary restraining order with a limited life

of twenty (20) days from date of issue. If before the expiration of the twenty (20)-day period the

application for preliminary injunction is denied, the temporary restraining order would be

deemed automatically vacated. [Bacolod City Water District v. Labayen, G.R. No. 157494,

December 10, 2004]

Requisites of TRO and Injunction

The following elements must concur for the issuance of a writ of preliminary injunction:

1. The invasion of the right is material and substantial;

2. The right of the complainant is clear and unmistakable;

3. There is urgent and paramount necessity for the writ to prevent serious damage[Strategic Alliance Development Corp. v. Star Infrastructure Development Corp., G.R. No.

187872, April 11, 2011]; and

4. Its effect would not be to create a new relation between the parties which was

arbitrarily interrupted by the defendant.

Kinds of injunction

Preliminary injunction

- An order granted at any stage of an action or proceeding prior to the judgment or finalorder:

a) Requiring a party or a court, agency or a person to refrain from a performance of a

particular act or acts (preventive or prohibitive injunction); or

b) Also requiring the performance of a particular act or acts (mandatory injunction).

(Section 1, Rule 58, Rules of Court; Regalado 2008 ed.)

Final injunction:

a) Granted if, after the trial of the action, it appears that the applicant is entitled to havethe act or acts complained of permanently enjoined


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b) May perpetually restrain the party or person enjoined from the commission or

continuance of the act or acts or confirming the preliminary mandatory injunction. (Section 9,

Rule 58 of the Rules of Court)

Preliminary injunction; improper where act sought to be enjoined is already consummated

Case law instructs that injunction would not lie where the acts sought to be enjoined

had already become fait accompli (meaning, an accomplished or consummated act). Hence,

since the consummation of the act sought to be restrained had rendered Sps. Alindogs

injunction petition moot, the issuance of the said injunctive writ was altogether

improper. (Spouses Nicasio C. Marquez and Anita J. Marquez v. Spouses Carlito Alindog and

Carmen Alindog,G.R. No. 184045. January 22, 2014)

Grounds for objection to, or for the dissolution of injunction or restraining order

The application for injunction or restraining order may be denied, upon a showing of itsinsufficiency. The injunction or restraining order may also be denied, or, if granted, may be

dissolved, on other grounds upon affidavits of the party or person enjoined, which may be

opposed by the applicant also by affidavits. It may further be denied, or if granted, may be

dissolved, if it appears after hearing that although the applicant is entitled to the injunction or

restraining order, the issuance or continuance thereof, as the case may be, would cause

irreparable damage to the party or person enjoined while the applicant can be fully

compensated for such damages as he may suffer, and the former files a bond in an amount fixed

by the court conditioned that he will pay all damages which the applicant may suffer by the

denial or the dissolution of the injunction or restraining order. If it appears that the extent of

the preliminary injunction or restraining order granted is too great, it may be modified. [Rule 58,

Sec. 6]

Temporary Restraining Order (TRO)

When can it be issued? Period of effectivity?

If it shall appear from facts shown by affidavits or by the verified application that great

or irreparable injury would result to the applicant before the matter can be heard on notice, the

court to which the application for preliminary injunction was made, may issue a temporary

restraining order to be effective only for a period of twenty (20) days from service on the party

or person sought to be enjoined, except as herein provided. Within the said twenty-day period,the court must order said party or person to show cause, at a specified time and place, why the

injunction should not be granted, determine within the same period whether or not the

preliminary injunction shall be granted, and accordingly issue the corresponding order.

Period of effectivity of TRO issued by the Court of Appeals; Supreme Court:

However, if issued by the Court of Appeals or a member thereof, the temporary

restraining order shall be effective for sixty (60) days from service on the party or person sought

to be enjoined. A restraining, order issued by the Supreme Court or a member thereof shall be

effective until further orders. [Rule 58, Sec. 5]

Duty of the court within the twenty (20) day period

Within the said 20 day period, the court must order said party or person to show cause
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why the injunction should not be granted. Also, within the same period, the court shall

determine whether or not the preliminary injunction shall be granted and then issue the

corresponding order. [Australian Professional, Inc. v. Municipality of Padre Garcia, 668 SCRA

253]

Period of TRO if based on extreme urgency: Extension of 17 days:

However, and subject to the provisions of the preceding sections, if the matter is of

extreme urgency and the applicant will suffer grave injustice and irreparable injury, the

executive judge of a multiple-sala court or the presiding judge of a single sala court may issue ex

partea temporary restraining order effective for only seventy-two (72) hours from issuance but

he shall immediately comply with the provisions of the next preceding section as to service of

summons and the documents to be served therewith. Thereafter, within the aforesaid seventy-

two (72) hours, the judge before whom the case is pending shall conduct a summary hearing to

determine whether the temporary restraining order shall be extended until the application for

preliminary injunction can be heard. In no case shall the total period of effectivity of the

temporary restraining order exceed twenty (20) days, including the original seventy-two hours

provided herein. [Rule 58, Sec. 5 (2)]

Period of twenty days non-extendible

The rule against the non-extendibility of the 20 day effectivity of a TRO is absolute if

issued by the RTC. The failure of the trial court to fix the period in the TRO does not convert it to

a preliminary injunction. [Bacolod City Water District v. Labayen, supra]

Limitations on the issuance of a TRO or injunction

In relation to R.A. No. 8975, ban on issuance of TRO or writ of injunction in cases

involving government infrastructure projects

No court, except the Supreme Court, shall issue any temporary restraining order,

preliminary injunction or preliminary mandatory injunction against the government, or any of

its subdivisions, officials or any person or entity, whether public or private acting under the

government direction, to restrain, prohibit or compel the following acts:

(a) Acquisition, clearance and development of the right-of-way and/or site or location ofany national government project;

(b) Bidding or awarding of contract/ project of the national government as defined

under Section 2 hereof;

(c) Commencement prosecution, execution, implementation, operation of any such

contract or project;

(d) Termination or rescission of any such contract/project; and

(e) The undertaking or authorization of any other lawful activity necessary for such

contract/project.

Prohibition applicable in all cases

This prohibition shall apply in all cases, disputes or controversies instituted by a private

party, including but not limited to cases filed by bidders or those claiming to have rights through

such bidders involving such contract/project. This prohibition shall not apply when the matter is


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of extreme urgency involving a constitutional issue, such that unless a temporary restraining

order is issued, grave injustice and irreparable injury will arise. The applicant shall file a bond, in

an amount to be fixed by the court, which bond shall accrue in favor of the government if the

court should finally decide that the applicant was not entitled to the relief sought.

Duty of the court if the contract is declared null and void

In after due hearing the court finds that the award of the contract is null and void, the

court may, if appropriate under the circumstances, award the contract to the qualified and

winning bidder or order a rebidding of the same, without prejudice to any liability that the

guilty party may incur under existing laws. [R.A. 8975, Sec. 3]

Rule on prior or contemporaneous service of summons and other requirements necessary

When an application for a writ of preliminary injunction or a temporary restraining order

is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court,

shall be raffled only after notice to and in the presence of the adverse party or the person to be

enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied, by

service of summons, together with a copy of the complaint or initiatory pleading and the

applicant's affidavit and bond, upon the adverse party in the Philippines. [Rule 58, Sec. 4 (c)]

When contemporaneous service of summons not applicable

However, where the summons could not be served personally or by substituted service

despite diligent efforts, or the adverse party is a resident of the Philippines temporarily absent

therefrom or is a non-resident thereof, the requirement of prior or contemporaneous service of

summons shall not apply. [Rule 58, Sec. 4 (c) (2)]

3.18.5. Receivership

Purpose of receivership

Receivership is aimed at the preservation of, and at making more secure, existing rights.

It cannot be used as an instrument for the destruction of those rights. [Arranza v. B.F. Homes,

Inc., 33 SCRA 799]

Who is a receiver?

A receiver is a person appointed by the court in behalf of all the parties to the action for

the purpose of preserving and conserving the property in litigation and prevent its possible

destruction or dissipation, if it were left in the possession of any of the parties. The

appointment of a receiver is not a matter of absolute right. [ Commodities Storage v. Court of

Appeals, 274 SCRA 439]

Cases when receiver may be appointed

Upon a verified application, one or more receivers of the property subject of the action

or proceeding may be appointed by the court where the action is pending or by the Court of

Appeals or by the Supreme Court, or a member thereof, in the following cases:

(a) When it appears from the verified application, and such other proof as the court may


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require, that the party applying for the appointment of a receiver has an interest in the property

or fund which is the subject of the action or proceeding, and that such property or fund is in

danger of being lost, removed, or materially injured unless a receiver be appointed to

administer and preserve it;

(b) When it appears in an action by the mortgagee for the foreclosure of a mortgage that

the property is in danger of being wasted or dissipated or materially injured, and that its value isprobably insufficient to discharge the mortgage debt, or that the parties have so stipulated in

the contract of mortgage;

(c) After judgment, to preserve the property during the pendency of an appeal, or to

dispose of it according to the judgment, or to aid execution when the execution has been

returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the

judgment, or otherwise to carry the judgment into effect;

(d) Whenever in other cases it appears that the appointment of a receiver is the most

convenient and feasible means of preserving, administering, or disposing of the property in

litigation.

During the pendency of an appeal, the appellate court may allow an application for the

appointment of a receiver to be filed in and decided by the court of origin and the receiver

appointed to be subject to the control of said court. [Rule 59, Sec. 1]

Nature of the duty of the receiver

A receiver is not an agent or representative of any party to the action. He is an officer of

the court exercising his functions in the interest of neither plaintiff nor defendant, but for the

common benefit of all parties in interest. [Pacific Merchandising Corporation v. Consolacion

Insurance, 73 SCRA 564]

Requirements before issuance of an order

1) Verified application for the appointment of a receiver based on any of the grounds

enumerated in Section 1, Rule 59; and

2) Bond filed by the applicant and executed to the party against whom the application is

presented, in an amount to be fixed by the court, to the effect that the applicant will pay such

party all damages the latter may sustain by reason of the appointment of such receiver in case

the applicant should have procured the same without sufficient cause.

Posting of additional bond

The court may, in its discretion, at any time after the appointment, require an additional

bond as further security for such damages

General powers of a receiver

Subject to the control of the court in which the action or proceeding is pending a

receiver shall have the power to bring and defend, in such capacity, actions in his own name; to

take and keep possession of the property in controversy; to receive rents; to collect debts due

to himself as receiver or to the fund, property, estate, person, or corporation of which he is thereceiver; to compound for and compromise the same; to make transfers; to pay outstanding

debts; to divide the money and other property that shall remain among the persons legally

entitled to receive the same; and generally to do such acts respecting the property as the court

may authorize. However, funds in the hands of a receiver may be invested only by order of the


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court upon the written consent of all the parties to the action. [Rule 59, Sec. 6]

Two kinds of bonds

There are two main types of bonds, namely:

1. The bond required before appointment of a receiver; and

2. The bond required of a receiver before entering upon his duties.

Another bond is the one which the court may require, at any time after the appointment of the

receiver as further security for damages. [Riano, supra]

Termination of receivership

Whenever the court, motu proprioor on motion of either party, shall determine that the

necessity for a receiver no longer exists, it shall, after due notice to all interested parties and

hearing, settle the accounts of the receiver, direct the delivery of the funds and other property

in his possession to the person adjudged to be entitled to receive them and order the discharge

of the receiver from further duty as such. The court shall allow the receiver such reasonable

compensation as the circumstances of the case warrant, to be taxed as costs against the

defeated party, or apportioned, as justice requires. [Rule 59, Sec. 8]

3.18.6. Replevin

Nature of replevin

Replevin, broadly understood, is both a form of principal remedy and of a provisionalrelief. It may refer either to the action itself, i.e., to regain the possession of personal chattels

being wrongfully detained from the plaintiff by another, or to the provisional remedy that would

allow the plaintiff to retain the thing during the pendency of the action and hold itpendente

lite. [Tillson vs. Court of Appeals, 197 SCRA 587]

Nature of an action for replevin

The action is primarily possessory in nature and generally determines nothing more than

the right of possession. Replevin is so usually described as a mixed action, being partly in

remand partly in personam-in rem insofar as the recovery of specific property is concerned,and in personamas regards to damages involved. As an "action in rem," the gist of the replevin

action is the right of the plaintiff to obtain possession of specific personal property by reason of

his being the owner or of his having a special interest therein. [ BA Finance Corporation v. Court

of Appeals, 258 SCRA 102]

When may writ be issued?/Requisites

A party praying for the recovery of possession of personal property may, at the

commencement of the action or at any time before answer, apply for an order for the delivery

of such property to him, in the manner hereinafter provided.

Applicant need not be the owner of the property subject of replevin

The applicant need not be the owner of the property. It is enough that he has a right to


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its possession. [Yang v. Valdez, G.R. No. 73317, August 31, 1989]

Affidavit and bond; redelivery bond

The applicant must show by his own affidavit or that of some other person who

personally knows the facts:

(a) That the applicant is the owner of the property claimed, particularly describing it, or

is entitled to the possession thereof;

(b) That the property is wrongfully detained by the adverse party, alleging the cause of

detention thereof according to the best of his knowledge, information, and belief ;

(c) That the property has not been distrained or taken for a tax assessment or a fine

pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise

placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; and

(d) The actual market value of the property. [Rule 60, Sec. 2]

Remedy of the adverse party

If the adverse party objects to the sufficiency of the applicant's bond, or of the surety or

sureties thereon, he cannot immediately require the return of the property, but if he does not

so object, he may, at any time before the delivery of the property to the applicant, require the

return thereof, by filing with the court where the action is pending a bond executed to the

applicant, in double the value of the property as stated in the applicant's affidavit for the

delivery thereof to the applicant, if such delivery be adjudged, and for the payment of such

sum, to him as may be recovered against the adverse party, and by serving a copy of such bond

on the applicant. [Rule 60, Sec. 5]

Sheriffs duty in the implementation of the writ; when property is claimed by third party

Upon receiving such order, the sheriff must serve a copy thereof on the adverse party,

together with a copy of the application, affidavit and bond, and must forthwith take the

property, if it be in the possession of the adverse party, or his agent, and retain it in his custody.

If the property or any part thereof be concealed in a building or enclosure, the sheriff must

demand its delivery, and if it be not delivered, he must cause the building or enclosure to be

broken open and take the property into his possession. After the sheriff has take possession of

the property as herein provided, he must keep it in a secure place and shall be responsible for

its delivery to the party entitled thereto upon receiving his fees and necessary expenses fortaking and keeping the same. [Rule 60, Sec. 4]

Duty of the sheriff upon seizure of property under replevin

The rules provide that property seized under a writ of replevin is not to be delivered

immediately to the plaintiff. Under Section 6, Rule 60, the Sheriff should have waited no less

than 5 days in order to give the complainant an opportunity to object to the sufficiency of the

bond.[Hao v. Andres, A.M. No. P-07-2384, June 18, 2008]

When to make an objection? Requirements;

If within five (5) days after the taking of the property by the sheriff, the adverse party

does not object to the sufficiency of the bond, or of the surety or sureties thereon; or if the

adverse party so objects and the court affirms its approval of the applicant's bond or approves a


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3.19. Special civil actions

Burden of Proof

We stress that in a special civil action for certiorari, the petitioner carries the burden ofproving not merely reversible error, but grave abuse of discretion amounting to lack or excess

of jurisdiction, on the part of the public respondent for his issuance of the impugned order.

Grave abuse of discretion is present when there is a capricious and whimsical exercise of

Meaning of lack of jurisdiction

judgment as is equivalent to lack of jurisdiction, such as where the power is exercised in

an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so

patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform

the duty enjoined or to act at all in contemplation of law. In other words, the tribunal or

administrative body must have issued the assailed decision, order or resolution in a capricious

or despotic manner. Petitioner failed to discharge that burden and perforce the petition must

fail. (Isabelita P. Gravides Vs. Commission on Elections and Pedro C. Borjal, G.R. No.

199433. November 13, 2012)

3.19.1. Nature of special civil actions

Rule 65 not a Remedy for lost Appeal

At the outset, it must be pointed out that petitioners resort to a Petition for Certiorariunder Rule 65 of the Rules of Court is inappropriate. Petitioners remedy from the adverse

Decision of the CA lies in Rule 45 which is a Petition for Review on Certiorari. As such, this

petition should have been dismissed outright for being a wrong mode of appeal. Even if the

petition is to be treated as filed under Rule 45, the same must still be denied for late filing and

there being no reversible error on the part of the CA. Records show that petitioners received a

copy of the CA Resolution denying their Motion for Reconsideration on October 30, 2006.42

They therefore had 15 days or until November 14, 2006 within which to file their Petition for

Review on Certiorari before this Court. However, they filed their Petition for Certiorari on

December 29, 2006,43 after the period to file a Petition for Review on Certiorari under Rule 45

had expired. Hence, this Petition for Certiorari under Rule 65 was resorted to as a substitute fora lost appeal which is not allowed. (Ruben C. Magtoto and Artemia Magtoto Vs. Court of

Appeals and Leonila M. Dela CruzG.R. No. 175792. November 21, 2012)

3.19.2. Ordinary civil actions versus special civil actions

An ordinary civil actionis when a party sues another for the enforcement or protection

of a right, or the prevention or redress of a wrong. [Reyes v. Enriquez, G.R. No. 162956, April 10,

2008] A special civil actioncontains special features not found in ordinary civil actions. It is also

governed by ordinary rules but subject to specific rules prescribed. [Rule 1, Sec. 3 (a), Paragraph

2]

3.19.3. Jurisdiction and venue

Rule on venue in special civil action
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Unlike ordinary civil actions which is determined by either the residences of the parties

if personal, or location of the property if real, special civil actions need not be based on this. For

instance for quo warranto, venue is fixed without regard to the residences of the parties.

[Riano, Civil Procedure II, 2012] Venue should still follow the rule on venue, except in instances

where the special civil action specifies.

Jurisdiction of the lower court to hear interpleader

In view of defendants subsequent failure to settle his issue with the supplier, plaintiff

instituted an action for interpleader against the defendant and the supplier, before the Court of

First Instance. The Court held that the Special Civil Action may be tried by the lower court if it

falls within its jurisdiction, here the amount was less than 10,000, hence, the petition was

proper. [Makati Development v. Tanjuatco, G.R. No. L-26443, March 25, 1969 ]

Jurisdiction in ejectment

Petitioners contend that since the MTC acted without jurisdiction, the RTC can only

decide the case on appeal if it has original jurisdiction. The SC held that the MTC had

jurisdiction over this ejectment case even if the question of possession could be resolved

without passing upon the issue of ownership. [Serrano v. Gutierrez, G.R. No. 162366, November

10, 2006]

3.19.4. Interpleader

A remedy whereby a person who has property whether personal or real, in his

possession, or an obligation to render wholly or partially, without claiming any right in both, or

claims an interest which in whole or in part is not disputed by the conflicting claimants, comesto court and asks that the persons who claim the said property or who consider themselves

entitled to demand compliance with the obligation, be required to litigate among themselves, in

order to determine finally who is entitled to one or the other thing. The remedy is afforded not

to protect a person against a double liability but to protect him against a double vexation in

respect of one liability. [Ocampo v. Tirona, G.R. No. 147382, April 6, 2005]

Requisites for interpleader

It is indispensable that there be conflicting claims upon the same subject matter are or

may be made against the plaintiff-in-interpleader who claims no interest whatever in thesubject matter or an interest which in whole or in part is not disputed by the claimants. [ Rizal

Commercial Banking Corporation v. Metro Container Corp., G.R. No. 127913, September 13,

2001]

The requisites are: a.) There must be two or more claimants with adverse or conflicting

interests upon a subject matter; b.) The conflicting claims involve the same subject matter; c.)

The conflicting claims are made against the same person; d.) The plaintiff has no claim upon the

subject matter of the adverse claims or if he has an interest at all, such interest is not disputed

by the claimants. [Riano, supra]

When to file?

Whenever conflicting claims upon the same subject matter are or may be made against

a person who claims no interest whatever in the subject matter, or an interest which in whole or


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in part is not disputed by the claimants. [Rule 62, Sec. 1]

Instance when interpleader is proper

Interpleader is proper when the lessee does not know the person who is entitled to the

payment of the rentals due because of conflicting claims on the property. The remedy passesthe legal problem to the court which will have to adjudicate upon the adverse claims. [Pasrischa

v. Don Luis Dizon Realty, Inc., 548 SCRA 273, 292]

Limitations in the filing of interpleader: Diligence is required

It must be noted, however, that a stakeholder should use reasonable diligencethat is,

by filing the interpleader suit within a reasonable time after a dispute has arisen without

waiting to be sued by either of the contending claimants. Otherwise, he may be barred by

laches or undue delay. [Wack-Wack Golf v. Won, 70 SCRA 165]

Instance when interpleader is no longer necessary

When the decision of a case has become final and executory, the party has no other

alternative but to pay rentals. The move for dismissal of interpleader was not an indication that

it is no longer interested, rather there is no more need for it. [ Rizal Commercial Banking

Corporation v. Metro Container Corp., supra]

Inchoate right not a basis for interpleader

In a case where petitioners father, aunt and uncles co-owned the land, and thereafter

sold the land, petitioners aver that there is a conflict among the heirs of the co-owner.

Petitioners were not the registered owners of the land, but represented merely an inchoateinterest thereto as heirs, hence they have no personality to file such case. [Ramos v. Ramos,399

SCRA 43 (2005)]

3.19.5. Declaratory reliefs and similar remedies

When declarqatory relief is proper?

Any person interested under a deed, will, contract or other written instrument, or whose

rights are affected by a statute, executive order or regulation, ordinance, or any other

governmental regulation may, before breach or violation thereof bring an action in theappropriate Regional Trial Court to determine any question of construction or validity arising,

and for a declaration of his rights or duties, thereunder. [ Rule 63, Sec. 1]

Only issue of construction and validity proper in declaratory relief

In a case which interpreted R.A. 305, which converted the municipality of Naga to a city,

in order to determine the rightful possessor of Plaza Rizal. The court explained that the only

issue that may be raised in such a petition is the question of construction or validity of

provisions in an instrument or statute, hence it complies with requirement of the rules.

[Province of Camarines Sur v. Court of Appeals, 600 SCRA 569 ]

Interpretation of the contract proper for declaratory relief

Respondent instituted an action for declaratory relief for purposes of determining the


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correct interpretation of condition Nos. 6 and 7 of the lease contract to prevent damage and

prejudice. The court took cognizance on the case, despite the fact that a separate action was

pending in another court because in the instant case no breach was committed. [Almeda v.

Bathala Marketing Industries, 542 SCRA 470]

Declaratory relief not within the original jurisdiction of the Supreme Court

Petitioner is a radio station which was granted to operate under R.A. 3001,

subsequently, President Marcos issued P.D. 576-A which restricted radio station ownership. The

Supreme Court dismissed the petition, ruling that a petition for declaratory relief is not among

the petitions within the original jurisdiction of the Supreme Court even if only questions of law

are involved. [Allied Broadcasting Corporation v. Republic of the Philippines, G.R. No. 91500,

October 18, 1990] Note that this rule is subject to the Supreme Courts discretion.

Declaratory relief treated as mandamus

In one instance the court took cognizance of a case, wherein a 12 year old was raped by

a foreigner, and in order to garnish the foreign deposit of the accused, which was exempt by

reason of a law. The Supreme Court treated the petition for declaratory relief as mandamus to

require the banks to honor the decision of the lower court, and added that, where the petition

has far-reaching implications and raises questions that should be resolved. [Salvacion v. Central

Bank, G.R. No. 94723 August ,21, 1997]

Who may file the action

All persons who have e claim any interest which would be affected by the declaration

shall be made parties. [Rule 63, Sec. 2]

When Solicitor General should be notified?

In any action which involves the validity of a statute, executive order or regulation, or

any other governmental regulation, the Solicitor General shall be notified by the party assailing

the same. [Rule 63, Sec. 3]

Who shall be notified in case of an ordinance?

In any action involving the validity of a local government ordinance, the correspondingprosecutor or attorney of the local governmental unit involved shall be similarly notified and

entitled to be heard. [Rule 63, Sec. 4]

Requisites of action for declaratory relief

The requisites of an action for declaratory relief are:1) the subject matter of the controversy

must be a deed, will, contract or other written instrument, statute, executive order or

regulation, or ordinance; 2) the terms of said documents and the validity thereof are doubtful

and require judicial construction; 3) there must have been no breach of the documents in

question; 4) there must be an actual justiciable controversy or the ripening seeds of one

between persons whose interests are adverse; 5) the issue must be ripe for judicial

determination; and 6)adequate relief is not available through other means or other forms of

action or proceeding. [Jumamil v. Caf, G.R. No. 144570, September 21, 2005]


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What is a justiciable question?

A justiciable controversy is a definite and concrete dispute touching on the legal

relations of parties having adverse legal interests, which may be resolved by a court of law

through the application of a law. Hence, a mere apprehension of an administrative sanction

does not give rise to a justiciable controversy. [Bayan Telecommunications v. Republic of the

Philippines, 513 SCRA 560]

Issue of status prior to marriage can be a subject of declaratory relief

Petitioner filed a case to clarify her status prior to their marriage, after the death of her

Chinese husband. As a consequence, her petition is, in effect, one for a declaratory relief, which

this Court has repeatedly held to be inapplicable to the political status of natural persons. [Lim

v. Republic, G.R. No. L-29535. February 27, 1971]

Issues in filiation and hereditary rights not subject of declaratory relief

Petitioner filed a declaratory relief to determine his filiation and hereditary rights. The

Court held that, the action is improper because it is not based on a deed, will, statute or any of

those as subject matter of the petition. [Edades v. Edades, 99 Phil. 675]

When court may refuse to make judicial declaration

Except in actions falling under the second paragraph of section 1 of this Rule, the

court, motu proprioor upon motion, may refuse to exercise the power to declare rights and to

construe instruments in any case where a decision would not terminate the uncertainty or

controversy which gave rise to the action, or in any case where the declaration or construction

is not necessary and proper under the circumstances. [Rule 63, Sec. 5]

Action for reformation of instrument, quieting of title and consolidation of ownership

An action for the reformation of an instrument, to quiet title to real property or remove

clouds therefrom, or to consolidate ownership under Article 1607 of the Civil Code, may be

brought under this Rule. [Rule 63, Sec. 1, Paragraph 2]

Effect is necessary party is not impleaded

The petition for declaratory relief only included the administrator and trustees under thewill, it failed to include the Roman Catholic Church of Nueva Segovia. The non-joinder of

necessary parties would deprive the declaration of that final and pacifying function it is

calculated to subserve, as they would not be bound by the declaration and may raise the

identical issue. [Degala v. Reyes, G.R. No. L-2402, November 29, 1950]

The non-inclusion of the squatters mentioned in the Ordinance in question as party

defendants in this case cannot defeat the jurisdiction of the Court of First Instance of Baguio.

The reason for the law requiring the joinder of all necessary parties is that failure to do so

would deprive the declaration of the final and pacifying function the action for declaratory relief

is calculated to subserve, as they would not be bound by the declaration and may raise the

Identical issue. [Baguio Citizens Action v. City Council, G.R. No. L-27247, April 20, 1983]

Conversion to ordinary action


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If before the final termination of the case, a breach or violation of an instrument or a

statute, executive order or regulation, ordinance, or any other governmental regulation should

take place, the action may thereupon be converted into an ordinary action, and the parties shall

be allowed to file such pleadings as may be necessary or proper. [ Rule 63, Sec. 6]

Prior breach of law or contract not proper for declaratory relief

Where the law or contract has already been contravened prior to the filing of an action

for declaratory relief, the court can no longer assume jurisdiction over the action. Under such

circumstances, inasmuch as a cause of action has already accrued in favor of one or the other

party, there is nothing more for the court to explain or clarify short of a judgment or final order.

[Tambunting, Jr. v. Sumabat, G.R. No. 144101, September 16, 2005]

Failure to state the law subject of petition is fatal

Petitioners filed a declaratory relief without stating the law which pertained to the case.

The Supreme Court held that, although Section 6, Rule 63 might allow such course of action, the

respondents did not argue the point, and we note petitioners failure to specify the ordinary

action they desired. [Martelino v. National Home Mortgage Finance Corporation, G.R. No.

160208, June 30, 2008]

Proceedings considered as similar remedies

Reformation of an instrument

When, there having been a meeting of the minds of the parties to a contract, their true

intention is not expressed in the instrument purporting to embody the agreement, by reason ofmistake, fraud, inequitable conduct or accident, one of the parties may ask for the reformation

of the instrument to the end that such true intention may be expressed.

If mistake, fraud, inequitable conduct, or accident has prevented a meeting of the minds of the

parties, the proper remedy is not reformation of the instrument but annulment of the contract.

[Art. 1359, Civil Code of the Philippines]

Note that this remedy is governed by Art. 1359-1369 of the civil code.

Prescription bars reformation of instrument

In one case, Respondent Corporation filed an action for reformation 24 years after the

issue arose, hence it is barred by prescription. The Court added that the purpose of an action

for declaratory relief is to secure an authoritative statement of the rights and obligations of the

parties for their guidance in the enforcement thereof, or compliance therewith, and not to

settle issues arising from an alleged breach thereof, it may be entertained only before the

breach or violation of the law or contract to which it refers. [ Bentir v. Leanda, G.R. No. 128991,

April 12, 2000]

Consolidation of ownership

In case of real property, the consolidation of ownership in the vendee by virtue of the

failure of the vendor to comply with the provisions of article 1616 shall not be recorded in the

Registry of Property without a judicial order, after the vendor has been duly heard. [Art. 1607,


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Civil Code of the Philippines]i

Quieting of title to real property

Nature and purpose of quieting of title

An action for quieting of title is essentially a common law remedy grounded on equity.

The competent court is tasked to determine the respective rights of the complainant and other

claimants, not only to place things in their proper place, to make the one who has no rights to

said immovable respect and not disturb the other, but also for the benefit of both, so that he

who has the right would see every cloud of doubt over the property dissipated, and he could

afterwards without fear introduce the improvements he may desire, to use, and even to abuse

the property as he deems best. But for an action to quiet title to prosper, two indispensable

requisites must concur, namely: (1) the plaintiff or complainant has a legal or an equitable title

to or interest in the real property subject of the action; and (2) the deed, claim, encumbrance,

or proceeding claimed to be casting cloud on his title must be shown to be in fact invalid or

inoperative despite its prima facie appearance of validity or legal efficacy. (Dionisio Manaquil,

et al. Vs. Roberto Moico,G.R. No. 80076, November 20, 2012)

When is the remedy of quieting of title proper?

Whenever there is a cloud on title to real property or any interest therein, by reason of

any instrument, record, claim, encumbrance or proceeding which is apparently valid or effective

but is in truth and in fact invalid, ineffective, voidable, or unenforceable, and may be prejudicial

to said title, an action may be brought to remove such cloud or to quiet the title.

An action may also be brought to prevent a cloud from being cast upon title to realproperty or any interest therein. [Art. 476, Civil Code of the Philippines]

Procedure to be followed

The procedure for the quieting of title or the removal of a cloud therefrom shall be

governed by such rules of court as the Supreme Court shall promulgated. [Art. 481, Civil Code of

the Philippines]

Purpose of the remedy

Quieting of title is a common law remedy for the removal of any cloud, doubt or

uncertainty affecting title to real property. The plaintiffs must show not only that there is a

cloud or contrary interest over the subject real property, but that they have a valid title to it.

[Spouses Santiago v. Villamor, G.R. No. 168499, November 26, 2012]

Requisites

In order that an action for quieting of title may prosper, two requisites must concur: (1) the

plaintiff or complainant has a legal or equitable title or interest in the real property subject of

the action; and (2)the deed, claim, encumbrance, or proceeding claimed to be casting cloud on

his title must be shown to be in fact invalid or inoperative despite its prima facie appearance of

validity or legal efficacy. [Phil-Ville Development and Housing Corporation v. Bonifacio, 651 SCRA

327]
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3.19.6. Review of judgments and final orders or resolution of the Comelec and COA

This Rule shall govern the review of judgments and final orders or resolutions of the

Commission on Elections and the Commission on Audit. [Rule 64, Sec. 1]

Decisions of the Civil Service Commission is now reviewable by the Court of Appeals.[R.A. No. 7902, Sec. 1]

Petition for review under Rule 43 an available remedy on the decision of the Civil Service

Commission

Petitioner is a school principal and was charged of sexual harassment, the remedy of an

aggrieved party from a resolution issued by the CSC is to file a petition for review thereof under

Rule 43 of the Rules of Court within fifteen days from notice of the resolution. However, it

admits exceptions, like the instant case, such as invalid writs, in this case Cuanan was denied of

due process for failure to serve him a copy of the pleadings. [Cuanan v. DepEd, G.R. No. 169013,

December 16, 2008]

Application of Rule 65 under Rule 64

Ajudgment or final order or resolution of the Commission on Elections and the

Commission on Audit may be brought by the aggrieved party to the Supreme Court

on certiorari under Rule 65. [Rule 64, Sec. 2]

Petition for certiorari available in case of COMELEC decision

A review includes digging into the merits and unearthing errors of judgment, whilecertiorari deals exclusively with grave abuse of discretion, which may not exist even when the

decision is otherwise erroneous. certiorari implies an indifferent disregard of the law,

arbitrariness and caprice, an omission to weight pertinent considerations, a decision arrived at

without rational deliberation. [Aratuc v. COMELEC,621 SCRA 385]

Lokin has correctly brought this special civil action for certiorari against the COMELEC to

seek the review of the resolution of the COMELEC in approving the withdrawal of his

nomination. The constitutional mandate is now implemented by Rule 64 of the 1997 Rules of

Civil Procedure, which provides for the review of the judgments, final orders or resolutions of

the COMELEC and the Commission on Audit. [Lokin v. COMELEC, 621 SCA 385]

Error of jurisdiction subject of Rule 64

A complaint was filed against petitioners for violation of rules of COA and for violation of

R.A. 3019. The office of the petition for certiorari is not to correct simple errors of judgment;

any resort to the said petition under Rule 64, in relation to Rule 65, of the 1997 Rules of Civil

Procedure is limited to the resolution of jurisdictional issues. [Reyna v. COA, 642 SCRA 210]

3.19.7. Certiorari, prohibition and mandamus

Function of writ of certiorari

Certiorari under Rule 65, as its principal function is to keep an inferior tribunal within its

jurisdiction. It can be invoked only for an error of jurisdiction, that is, one where the act


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complained of was issued by the court, officer or a quasi-judicial body without or in excess of

jurisdiction, or with grave abuse of discretion which is tantamount to lack or in excess of

jurisdiction. [Angara v. Fedman, G.R. No. 156822, October 18, 2004]

Function of prohibition

The function of prohibition is to prevent the unlawful and oppressive exercise of legal

authority and to provide for a fair and orderly administration of justice. It is directed against

proceedings that are done without or in excess of jurisdiction, or with grave abuse of discretion,

there being no appeal or other plain, speedy and adequate remedy in the ordinary course of

law. [Vergara v. Rugue, G.R. No. L-32984, August 25, 1977]

What is Mandamus?

Mandamus is a writ commanding a tribunal, corporation, board, or person to do the act

required to be done when it or he unlawfully neglects the performance of an act which the law

specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes

another from the use and enjoyment of a right or office to which such other is entitled, there

being no other plain, speedy, and adequate remedy in the ordinary course of law. [Angchangco

v. Ombudsman, G.R. No. 122728, February 13, 1997]

Special Civil Action for Mandamus; nature; when available.

Similarly, the petition could not be one for mandamus, which is a remedy available only

when any tribunal, corporation, board, officer or person unlawfully neglects the performance

of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or

unlawfully excludes another from the use and enjoyment of a right or office to which suchother is entitled, and there is no other plain, speedy, and adequate remedy in the ordinary

course of law, the person aggrieved thereby may file a verified petition in the proper court.

The main objective of mandamusis to compel the performance of a ministerial duty on the part

of the respondent. Plainly enough, the writ of mandamusdoes not issue to control or review

the exercise of discretion or to compel a course of conduct, which, it quickly seems to us, was

what petitioners would have the Secretary of Justice do in their favor. Consequently, their

petition has not indicated how and where the Secretary of Justices assailed issuances excluded

them from the use and enjoyment of a right or office to which they were unquestionably

entitled. Spouses Augusto Dacudao and Ofelia Dacudao v. Secretary of Justice Raul Gonzales of

the Department of Justice,G.R. No. 188056. January 8, 2013

Special Civil Action for Mandamus; nature; compels performance of ministerial duties.

A key principle to be observed in dealing with petitions for mandamus is that such

extraordinary remedy lies to compel the performance of duties that are purely ministerial in

nature, not those that are discretionary. A purely ministerial act or duty is one that an officer or

tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate

of a legal authority, without regard to or the exercise of its own judgment upon the propriety or

impropriety of the act done. The duty is ministerial only when its discharge requires neither the

exercise of official discretion or judgment. Special People, Inc. Foundation, represented by its

Chairman, Roberti P. Cericos v. Nestor M. Canda, et al.,G.R. No. 160932. January 14, 2013

Certiorari distinguished from appeal by certiorari
http://sc.judiciary.gov.ph/jurisprudence/2013/january2013/188056.pdfhttp://sc.judiciary.gov.ph/jurisprudence/2013/january2013/160932.pdfhttp://sc.judiciary.gov.ph/jurisprudence/2013/january2013/160932.pdfhttp://sc.judiciary.gov.ph/jurisprudence/2013/january2013/188056.pdf


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(f) where, in a criminal case, relief from an order of arrest is urgent and the granting of

such relief by the trial court is improbable;

(g) where the proceedings in the lower court are a nullity for lack of due process;

(h) where the proceedings were ex parte, or in which the petitioner had no opportunity

to object; and

(i) where the issue raised is one purely of law or where public interest is involved. [Tangv. Subic Bay Distribution, G.R. No. 162575, December 15, 2010]

Reliefs petitioner is entitled to

Annulment of the proceedings and grant of relief

A person aggrieved thereby may file a verified petition in the proper court, alleging the

facts with certainty and praying that judgment be rendered annulling or modifying the

proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and

justice may require. [Rule 65, Sec. 1]

When can judgment be rendered?

If after such hearing or submission of memoranda or the expiration of the period for the

filing thereof the court finds that the allegations of the petition are true, it shall render

judgment for the relief prayed for or to which the petitioner is entitled. [Rule 65, Sec. 8]

Other reliefs

The court in which the petition is filed may issue orders expediting the proceedings, and

it may also grant a temporary restraining order or a writ of preliminary injunction for the

preservation of the rights of the parties pending such proceedings. [Rule 65, Sec. 7]

Actions/omissions of MTC/RTC in election cases

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

the petition shall be filed exclusively with the Commission on Elections, in aid of its appellate

jurisdiction. [A.M. No. 07-7-12-SC Dec. 12, 2007]

A petition for certiorari was filed questioning an interlocutory order of a trial court in an

electoral protest was within the appellate jurisdiction of the COMELEC. Since it is the COMELEC

which has jurisdiction to take cognizance of an appeal from the decision of the regional trialcourt in election contests involving elective municipal officials, then it is also the COMELEC

which has jurisdiction to issue a writ of certiorariin aid of its appellate jurisdiction. [Galang v.

Geronimo, G.R. No. 192793, February 22, 2011]

When and where to file petition?

The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of

a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising

jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the

Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the

Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a

quasi-judicial agency, unless otherwise provided by law or these Rules, the petition shall be filed

in and cognizable only by the Court of Appeals. [Rule 65, Sec. 4]


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Effects of filing of an unmeritorious petition

The court, however, may dismiss the petitionif it finds the same to be patently without

merit, prosecuted manifestly for delay, or that the questions raised therein are too

unsubstantial to require consideration. [Rule 64, Sec. 8]

Grave abuse of discretion; concepts.

When grave abuse of discretion arises?

To be sure, grave abuse of discretion arises when a lower court or tribunal patently

violates the Constitution, the law or existing jurisprudence. Here, while the RTC had initially

issued a writ of possession in favor of Sps. Marquez, it defied existing jurisprudence when it

effectively rescinded the said writ by subsequently granting Sps. Alindogs prayer for injunctive

relief. Spouses Nicasio C. Marquez and Anita J. Marquez v. Spouses Carlito Alindog and Carmen

Alindog,G.R. No. 184045. January 22, 2014.

It is settled doctrine that there is grave abuse of discretion when there is a capricious

and whimsical exercise of judgment as is equivalent to lack of jurisdiction, such as where the

power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility,

and it must be so patent and gross so as to amount to an evasion of positive duty or to a virtual

refusal to perform the duty enjoined or to act at all in contemplation of law. Ralph P. Tua v.

Hon. Cesar A. Mangrobang, Presiding Judge, Branch 22, RTC, Imus, Cavite; and Rossan Honrado-

Tua,G.R. No. 170701. January 22, 2014.

3.19.8. Quo warranto

A quo warranto proceeding is generally defined as an action against a person who

usurps, intrudes into, or unlawfully holds or exercises a public office. [Tecson v. COMELEC, 424

SCRA 277]

Instance when quo warranto is not proper

Petitioners argue that since their prayer involves the cancellation of the provisional

authority and CPCs, and not the legislative franchise, then quo warranto fails as a remedy. The

Court explained that the special civil action of quo warranto is a prerogative writ by which the

Government can call upon any person to show by what warrant he holds a public office or

exercises a public franchise. [Divinagracia v. Consolidated Broadcasting System, G.R. No.

162272, April 7, 2009]

Distinguish from quo warranto in the Omnibus Election Code

The Court has already likened a proceeding under Section 78 to a quo warranto

proceeding since they both deal with the eligibility or qualification of a candidate. The

distinction mainly in the fact that a "Section 78" under Section 253 of the OEC, petition is filed

before proclamation, while a petition for quo warranto is filed after proclamation of the winning

candidate. [Fermin v. COMELEC, G.R. No. 179695, December 18, 2008]

Quo Warranto under OEC Quo Warranto under Rule
http://www.scribd.com/doc/206891656/184045http://www.scribd.com/doc/206891656/184045http://www.scribd.com/doc/206341330/170701http://www.scribd.com/doc/206341330/170701http://www.scribd.com/doc/206341330/170701http://www.scribd.com/doc/206891656/184045


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66

Governed by election laws Governed by the rules of

Court

Issue is the eligibility or

ineligibility of the person

elected or his loyalty ordisloyalty to the Republic

Issue is the legality or

illegality of the occupancy of

the office by virtue of anappointment

Petition is filed within 10

days after the proclamation

of the results of the election

Filed within one year from

the time the cause of ouster,

or the right of the petitioner

to hold office arose

Petition is brought in the

COMELEC, RTC, or MTC

Petition is brought in the SC,

CA or RTC

Petitioner may be any voter

even if he is not entitled to

the office

Petitioner is the person

claiming to be entitled to

office[Riano, Supra]

When government may commence an action against individuals?

An action for the usurpation of a public office, position or franchise may be commenced

by a verified petition brought in the name of the Republic of the Philippines against:

(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office,

position or franchise;

(b) A public officer who does or suffers an act which, by the provision of law, constitutes

a ground for the forfeiture of his office; or

(c) An association which acts as a corporation within the Philippines without being

legally incorporated or without lawful authority so to act. [Rule 66, Sec. 1]

Solicitor General can commence the action

The Solicitor General or a public prosecutor, when directed by the President of the

Philippines, or when upon complaint or otherwise he has good reason to believe that any case

specified in the preceding section can be established by proof, must commence such action.

[Rule 66, Sec. 2]

The Solicitor General or a public prosecutor may, with the permission of the court in

which the action is to be commenced, bring such an action at the request and upon the relation

of another person. [Rule 66, Sec. 3]

When individual may commence an action?

A person claiming to be entitled to a public office or position usurped or unlawfully held

or exercised by another may bring an action therefor in his own name. [Rule 66, Sec. 5]

Judgment in quo warranto action

When the respondent is found guilty of usurping into, intruding into, or unlawfully holding or

exercising a public office, position or franchise, judgment shall be rendered that such

respondent be ousted and altogether excluded therefrom, and that the petitioner or relator, as


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the case may be, recover his costs. Such further judgment may be rendered determining the

respective rights in and to the public office, position or franchise of all the parties to the action

as justice requires. [Rule 66, Sec. 9]

Rights of a person adjudged entitled to public office

If judgment be rendered in favor of the person averred in the complaint to be entitled to

the public office he may, after taking the oath of office and executing any official bond required

by law, take upon himself the execution of the office, and may immediately thereafter demand

of the respondent all the books and papers in the respondent's custody or control appertaining

to the office to which the judgment relates. If the respondent refuses or neglects to deliver any

book or paper pursuant to such demand, he may be punished for contempt as having disobeyed

a lawful order of the court. The person adjudged entitled to the office may also bring action

against the respondent to recover the damages sustained by such person by reason of the

usurpation. [Rule 66, Sec. 10]

3.19.9. Expropriation

The power of eminent domain in particular has been described as a right to take or

reassert dominion over property within the state for public use or meet public exigency. It is

also said to be an essential part of governance even in its most primitive form, and thus,

inseparable from sovereignty. [Air Transportation Office v. Gopuco, Jr., 462 SCRA 544]

Matters to allege in complaint for expropriation

The right of eminent domain shall be exercised by the filing of a verified complaint which

shall state with certainty the right and purpose of expropriation, describe the real or personalproperty sought to be expropriated, and join as defendants all persons owning or claiming to

own, or occupying, any part thereof or interest therein, showing, so far as practicable, the

separate interest of each defendant. If the title to any property sought to be expropriated

appears to be in the Republic of the Philippines, although occupied by private individuals, or if

the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty

specify who are the real owners, averment to that effect shall be made in the complaint. [ Rule

67, Sec. 1]

Two stages in every action for expropriation

The first stage is the determination of authority of the plaintiff to expropriate, which

includes the propriety of the expropriation, its necessity and public purpose. The second stage

is the determination of just compensation through the court-appointed commissioners.

[National Power Corporation v. Joson, 206 SCRA 520] The first phase ends with either an order

of dismissal or a determination that the property is to be acquired for a publ

provisional remedies pals_2

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