RULE 62

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INTERPLEADER

Sec. 1. When Interpleader is Proper.Whenever conflicting claims

- Upon the SAME subject matter are or may be made - Against a person who claims

o NO interest whatever in the subject matter ORo An interest which in whole or in part is NOT disputed by the claimants

- HE o May bring an action against the conflicting claimants o To compel them to interplead and litigate their several claims among

themselves

Sec. 2. Order.Upon filing of the complaintThe court

- Shall issue an ORDER- Requiring the conflicting claimants to interplead with one another

IF the interest of justice so requireThe court

- May direct in such order- That the subject matter be paid or delivered to the court

Sec. 3. Summons. Summons

- Shall be served upon the conflicting claimants- Together with a copy of the complaint AND order

Sec. 4. Motion to Dismiss.Within the time for filing an answerEach claimant

- May file a MOTION TO DISMISS- On the ground of impropriety of the interpleader action OR - On other grounds specified in Rule 16

The period to file the answer shall be tolled ANDIF the motion is deniedThe movant

- May file his answer within the remaining period- BUT which shall NOT be less than 5 days in any event- Reckoned from notice of denial

Sec. 5. Answer and Other Pleadings.Each claimant

- Shall file his answer setting forth his claim- Within 15 days from service of summons upon him- Serving a copy thereof upon each of the other conflicting claimants

o Who may file their reply thereto as provided by these Rules.

IF any claimant fails to plead within the time herein fixedThe court

- May, on motion- Declare him in default AND- Thereafter render judgment barring him from any claim in respect to the subject

matter.

The parties in an interpleader action - May file counterclaims, cross-claims, 3 rd -party complaints and responsive pleadings thereto- As provided by these Rules

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Sec. 6. Determination.AFTER the pleadings of the conflicting complaints have been filed ANDPretrial has been conducted in the accordance with the RulesThe court

- Shall proceed to determine their respective rights AND adjudicate their several claims

Sec. 7. Docket and Other Lawful Fees, Costs, and Litigation Expenses as Liens.The docket and other lawful fees paid by the party who filed a complaint under this RuleAs well as the costs and litigation expenses

- Shall constitute a lien or charge upon the subject matter of the action- UNLESS the court shall order otherwise

CASES

(1) Wack Wack Golf & Country Club v. Won (70 SCRA 165)

Filing a Interpleader with Reasonable Diligence- A stakeholder should use reasonable diligence to hale the contending claimants to court. He

need NOT await actual institution of independent suits against him before filing a bill of interpleader. He should file an action of interpleader 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. But where he acts with reasonable diligence in view of the environmental circumstances, the remedy is not barred.

When Interpleader is Filed Too Late- It has been held that a stakeholder's action of interpleader is TOO LATE when filed after

judgment has been rendered against him in favor of one of the contending claimants, especially where he had notice of the conflicting claims prior to the rendition of the judgment and neglected the opportunity to implead the adverse claimants in the suit where judgment was entered. This must be so, because once judgment is obtained against him by one claimant he BECOMES LIABLE to the latter.

- In this case: The Corporation has not shown any justifiable reason why it did not file an application for interpleader in civil case 26044 to compel the appellees herein to litigate between themselves their conflicting claims of ownership. It was only after adverse final judgment was rendered against it that the remedy of interpleader was invoked by it. By then it was too late, because to be entitled to this remedy the applicant must be able to show that he has NOT been made independently liable to any of the claimants. And since the Corporation is already liable to Lee under a final judgment, the present interpleader suit is clearly improper and unavailing.

Allowing Interpleader After Judgment in Another Suit on the Same Claims Result in Relitigation and Partial Judgment

- If a stakeholder defends a suit filed by one of the adverse claimants and allows said suit to proceed to final judgment against him, he cannot later on have that part of the litigation repeated in an interpleader suit.

- It is one of the main offices of a bill of interpleader to restrain a separate proceeding at law by claimant so as to avoid the resulting partial judgment

Allowing Interpleader After Judgment in Another Suit on the Same Claims Would Increase Rather Than Diminish the Number of Suits

- To now permit the Corporation to bring Lee to court after the latter's successful establishment of his rights in civil case 26044 to the membership fee certificate 201, is to increase instead of to diminish the number of suits, which is one of the purposes of an action of interpleader, with the possibility that the latter would lose the benefits of the favorable judgment. This cannot be done because having elected to take its chances of

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success in said civil case 26044, with full knowledge of all the fact, the Corporation must submit to the consequences of defeat.

Allowing Interpleader After Judgment in Another Suit on the Same Claims Constitutes a Collateral Attack Upon the Judgment of a Court

- A successful litigant cannot later be impleaded by his defeated adversary in an interpleader suit and compelled to prove his claim anew against other adverse claimants, as that would in effect be a COLLATERAL ATTACK upon the judgment.

Purpose of Interpleader: Protection from Double Vexation- The remedy by interpleader is afforded to protect the party from the annoyance and

hazard of two or more actions touching the same property or demando BUT one who, with knowledge of all the facts, neglects to avail himself of the relief or

elects to take the chances for success in the actions at law, ought to submit to the consequences of defeat. To permit an unsuccessful defendant to compel the successful plaintiffs to interplead is to increase instead of to diminish the number of suits and to put upon the shoulders of others the burden which he asks may be taken from his own.

- It is generally held by the cases it is the office of interpleader to protect a party, not against double liability, but against double vexation on account of one liability.

(2) Alvarez v. Commonwealth of the Philippines (65 Phil 302)

Interpleader as a NEW ACTION- When the court orders that the claimants litigate among themselves, there arises in reality a

new action and the former are styled interpleaders, and in such a case the pleading which initiates the action is called a complaint of interpleader and NOT a cross-complaint

Order to Interplead Necessary- In the opinion of the court it is necessary that there be a declaration to this effect

before the defendant may litigate among themselves and file a complaint of interpleader.

- Section 120 of the Code of Civil Procedure in truth requires such and good practice demands that the defendants be not permitted to file claims or complaint of interpleader until after the court has ordered that they should litigate among themselves. This procedure will do away with groundless suits, and will save the parties time, inconvenience, and unnecessary expenses.

(3) Beltran v. People’s Homesite and Housing Corporation (29 SCRA 145)

“Conflicting Claims” is an Indispensable Element in Interpleader- Rule 63, section 1 of the Revised Rules of Court (requires as an indispensable element that

"conflicting claims upon the same subject matter are or may be made" against the plaintiff-in-interpleader "who claims no interest whatever in the subject matter or an interest which in whole or in part is not disputed by the claimants."

- In this case: While the two defendant corporations may have conflicting claims between themselves with regard to the management, administration and ownership of Project 4, such conflicting claims are NOT against the plaintiffs nor do they involve or affect the plaintiffs.

o No allegation is made in their complaint that any corporation other than the PHHC which was the only entity privy to their lease-purchase agreement, ever made on them any claim or demand for payment of the rentals or amortization payments. The questions of fact raised in their complaint concerning the enforceability, and recognition or non-enforceability and non-recognition of the turnover agreement of December 27, 1961 between the two defendant corporations are irrelevant to their action of interpleader, for these conflicting claims, loosely so-called, are between the two corporations and not against plaintiffs. Both defendant corporations were in

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conformity and had no dispute, as pointed out by the trial court that the monthly payments and amortizations should be made directly to the PHHC alone.

- Thus, in another case, where the occupants of two different parcels of land adjoining each other belonging to two separate plaintiffs, but on which the occupants had constructed a building encroaching upon both parcels of land, faced two ejectment suits from the plaintiffs, each plaintiff claiming the right of possession and recovery over his respective portion of the lands encroached upon, this Court held that the occupants could not properly file an interpleader suit, against the plaintiffs, to litigate their alleged conflicting claims; for evidently, the two plaintiff did not have any conflicting claims upon the same subject matter against the occupants, but were enforcing separate and distinct claims on their respective properties.

Purpose of Interpleader- The action of interpleader is a remedy whereby a person who has property in his possession or

has an obligation to render wholly or partially, without claiming any right in both, comes to court and asks that the defendants who have made upon him conflicting claims upon the same property or who consider themselves entitled to demand compliance with the obligation be required to litigate among themselves in order to determine who is entitled to the property or payment of the obligation.

Interpleader NOT the Proper Remedy for Breach of Contract- In this case: Should there be a breach of the PHHC undertakings towards plaintiffs, plaintiffs'

recourse would be an ordinary action of specific performance or other appropriate suit against either the PHHC or GSIS or both, as the circumstances warrant.

(4) Lim v. Continental Development Corporation (69 SCRA 349)

Dismissal of Interpleader Incorrect when Active Conflict Exists and When Such Dismissal Practically Ruled on Such Conflict

- Since there is an active conflict of interests between the two defendants, now herein respondent Benito Gervasio Tan and petitioner Zoila Co Lim, over the disputed shares of stock, the trial court gravely abused its discretion in dismissing the complaint for interpleader, which practically decided ownership of the shares of stock in favor of defendant Benito Gervasio Tan.

(5) Sy- Quia v. Sheriff of Ilocos Sur (46 Phil 400)

Interpleader an Appropriate Remedy In Respect to Conflicting Claims to Property Seized by a Sheriff in the Foreclosure of Chattel Mortgage

- Though it, perhaps, would have been better practice for the sheriff to sell the property and hold the proceeds of the sale subject to the outcome of the action of interpleader, we, nevertheless, are of the opinion that the facts shown do NOT justify our interference by mandamus.

- The sheriff might lay himself open to an action for damages if he sold the goods without the consent of the holder of the last mortgage, and it does not appear that the petitioner offered to give bond to hold him harmless in such an event. In these circumstances, his action in suspending the sale pending the determination of the action of interpleader seems justified.

(6) Mesina v. IAC (145 SCRA 497)

Interpleader is Issuing Bank’s Proper Remedy When Purchaser of Cashier’s Check Claims It was Lost and Another has Presented it for Payment

- It has been shown that the interpleader suit was filed by respondent bank because petitioner and Jose Go were both laying their claims on the check, petitioner asking payment thereon and Jose Go as the purchaser or owner.   The allegation of petitioner

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that respondent bank had effectively relieved itself of its primary liability under the check by simply filing a complaint for interpleader is belied by the willingness of respondent bank to issue a certificate of time deposit in the amount of P800,000 representing the cashier's check in question in the name of the Clerk of Court of Manila to be awarded to whoever will be found by the court as validly entitled to it.  Said validity will depend on the strength of the parties' respective rights and titles thereto.  Bank filed the interpleader suit not because petitioner sued it but because petitioner is laying claim to the same check that Go is claiming.

Order to File Answer in an Action for Interpleader is an Order to Interplead- The Order of the trial court requiring the parties to file their answers is to all intents

and purposes an order to interplead, substantially and essentially and therefore in compliance with the provisions of Rule 63 of the Rules of Court.  What else is the purpose of a law suit but to litigate?

(7) Rivera v. Ocampo (93 Phil 588)

Money Consigned in Court by Defendants in Interpleader Case CANNOT be Replaced by a Bond During the Pendency of the Case WITHOUT the Consent of the Plaintiff

- Una suma en metalico depositada en la escribania del Juzgado, al presentarse una demanda de interpleader, no puede, durante la pendencia asunto, sustituirse por una fianza prestada por una casa asegurada sin el consentimiento del demandante

- In other words: It impermissible, in interpleader cases, to deliver to one party the money deposited in court even upon the filing of a bond.

(8) Menzi & Co. v. Vastida (63 Phil 16)

Attorney’s Fees May be Defrayed in Funds Sought to be Distributed in Interpleader Cases- The Rule on Interpleader authorizes the bringing of an action of interpleading contains no

provision relative to fees of the attorney for the plaintiff in such actions. However, taking into consideration the purpose of an action of interpleading, it seems just that the fees of an interpleader's attorney be defrayed with the funds sought to be distributed, unless there be some reason justifying payment thereof by some of defendants in the case.

o According to many authorities, complainant is entitled, as a part of his costs, to an attorney's fee commensurate with the services of his counsel in the cause, eventually to fall on the claimant who was in the wrong and made the litigation necessary, and this is expressly provided by the statute in some jurisdictions. In any case, the allowance for the attorney's fees should be limited to a reasonable fee for necessary services."

- As to the order of payment of these fees, the law is likewise silent; but being in the nature of costs, according to the American doctrine referred to above, they should be paid in preference to all claims and at the same time as judicial costs. In its brief the plaintiff-appellee likewise prays that it be granted the costs of both instances, including the expenses incurred in the printing of its brief.

(9) Ocampo v. Tirona (455 SCRA 62)

Goof Faith of Stakeholder in Interpleader- The good faith of Tirona is put in question in her preference for Maria Lourdes Breton-

Mendiola.  As a stakeholder, Tirona should have used reasonable diligence in hailing the contending claimants to court.  Tirona need not have awaited actual institution of a suit by Ocampo against her before filing a bill of interpleader. An action for interpleader is proper when the lessee does not know the person to whom to pay rentals due to conflicting claims on the property.

Purpose of Interpleader- The action of interpleader is a remedy whereby a person who has property whether personal or

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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, comes to 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. 

- When the court orders that the claimants litigate among themselves, there arises in reality a new action and the former are styled interpleaders, and in such a case the pleading which initiates the action is called a complaint of interpleader and not a cross-complaint.

(10) RCBC v. Metro Container Corporation (365 SCRA 150)

Interpleader Improper When Conflict Ceases as When Court Adjudges Payment of Rentals to a Particular Party in an Unlawful Detainer Case – There is NO More Dispute as to Whom Rentals Will be Paid

- It is undisputed that METROCAN filed the interpleader action because it was unsure which between LEYCON and RCBC was entitled to receive the payment of monthly rentals on the subject property. LEYCON was claiming payment of the rentals as lessor of the property while RCBC was making a demand by virtue of the consolidation of the title of the property in its name.

- It is also undisputed that LEYCON, as lessor of the subject property filed an action for unlawful detainer (Civil Case No. 6202) against its lessee METROCAN.

o The issue of ownership is immaterial therein and the outcome of the case could not in any way affect conflicting claims of ownership, in this case between RCBC and LEYCON. he final determination of the issue of physical possession over the subject premises between the plaintiff and the defendant shall not in any way affect RCBC's claims of ownership over the said premises, since RCBC is neither a co-lessor or co- lessee of the same, hence he has no legal personality to join the parties herein with respect to the issue of physical possession vis-a-vis the contract of lease between the parties.

- Hence, the reason for the interpleader action ceased when the MeTC rendered judgment in the Unlawful Detainer case whereby the court directed METROCAN to pay LEYCON whatever rentals due on the subject premises.

o While RCBC, not being a party to the Unlawful Detainer case, could not be bound by the judgment therein, METROCAN is bound by the MeTC decision. When the decision inbecame final and executory, METROCAN has no other alternative left but to pay the rentals to LEYCON. Precisely because there was already a judicial fiat to METROCAN, there was no more reason to continue with the Interpleader action. Thus, METROCAN moved for the dismissal of the interpleader action not because it is no longer interested but because there is no more need for it to pursue such cause of action.

RULE 63DECLARATORY RELIEF AND SIMILAR REMEDIES

Sec. 1. Who May File a Petition.Any person

- Interested under a deed, will, contract or other written instrument OR- Whose rights are affected by statute, executive order or regulation, ordinance or any

other governmental regulationo May, BEFORE breach or violation thereofo Bring an action in the appropriate RTC

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o To determine any question of construction or validity arising ANDo For a declaration of his rights or duties thereunder

An action - For the reformation of an instrument- To quiet title or remove clouds therefrom OR- To consolidate ownership under Art. 1607 of the Civil Code

o May be brought under this Rule

Sec. 2. Parties.ALL persons

- Who have or claim an interest which would be affected by the declaration - Shall be made parties

AND NO declaration shall - EXCEPT as otherwise provided in these Rules- Prejudice the rights of persons not parties to the action

Sec. 3. Notice on Solicitor General.In any action

- Which involves the VALIDITY of a statute, executive order or regulation or any other governmental regulation

- The Solicitor General o Shall be notified by the party assailing the same ANDo Shall be entitled to be heard upon such question

Sec. 4. Local Government Ordinances.In any action involving the validity of a local government ordinanceThe corresponding prosecutor or attorney of the LGU involved

- Shall be similarly notified and entitled to be heard

IF such ordinance is alleged to be UNCONSTITUTIONAL- The Solicitor General shall also be notified and entitled to be heard

Sec. 5. Court Action Discretionary.EXCEPT in actions falling under the 2nd paragraph of Sec. 1 of this RuleThe court

- Motu proprio or upon motion- May refuse to exercise the power to declare rights and to construe instruments in

any caseo Where a decision would NOT terminate the uncertainty or controversy which

gave rise to the action ORo In any case where the declaration or construction is NOT necessary and proper

under the circumstances

Sec. 6. Conversion into Ordinary Action.IF BEFORE the final termination of the case

- A BREACH or a 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 into an ordinary action AND- The parties shall be allowed to file such pleadings as may be necessary or proper-

CASES

(1)Mirando v. Wellington Ty & Bros. (81 SCRA 506)

Nature of Declaratory Relief- Declaratory relief is an action which any person INTERESTED under a deed will, contract, or

other written instrument, or whose rights are affected by a statute, executive order or regulation, or ordinance, may, before breach or violation thereof, bring to determine any

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question of construction or validity arising under the instrument or statute and for a declaration of his rights or duties thereunder.

Petitioners Should have Some Interest - But it is evident from the records that from the date of their relocation to the disputed lots in

1950 to the date of the filing of this petition for declaratory relief, at no time did the petitioners-appellants acquire any interest whatsoever in the parcels of land subject of the aforementioned contract of sale. They enjoyed no rights which were violated, or at the least, affected by the exchange of properties between the national government and the late Carmen Planas, and eventually, by the above contract of sale between the administrator of the estate of Carmen Planas and the respondent-appellee Wellington Ty & Bros., Inc.

Requisites for Taking Cognizance of Declaratory Relief- The authorities are unanimous that in order that an action for declaratory relief may be

entertained, it must be predicated on the following requisite facts or conditions: o (1) There must be a justiciable controversyo (2) The controversy must be between persons whose interests are adverseo (3) The party seeking declaratory relief must have a legal interest in the controversy

ANDo (4) The issue involved must be ripe for judicial determination

- All these requisite facts are not present; the complaint must, therefore, fail for lack of sufficient cause of action.

(2)Delumen v. Republic (91 Phil 297)

Definition of Judiciable Controversy- Justiciable controversy is one involving

o An active antagonistic assertion of a legal right on one side and o A denial thereof on the other o Concerning a real and not a mere theoretical question or issue

Declaratory Relief CANNOT Try Uncertain or Hypothetical Issues- In essence, the appellees merely wanted to remove all doubts in their minds as to their

citizenship, but an action for declaratory judgment cannot be invoked solely to determine or try issues or to determine a moot, abstract or theoretical question, or decide claims which are uncertain or hypothetical.

- In this case: There is nothing in the petition which even intimates that the alleged status of the appellees as Filipino citizens had in any instance been questioned or denied by any specific person or authority. Indeed, the petition alleges that the appellees have considered themselves and were considered by their friends and neighbors as Filipino citizens, voted in the general elections of 1946 and 1947, and were registered voters for the elections of 1951, and it is not pretended that on any of said occasions their citizenship was controverted. It is not accurate to say, as appellees do, that an actual controversy arose after the filing by the Solicitor General of an opposition to the petition, for the reason that the cause of action must be made out by the allegations of the complaint or petition, without the aid of the answer. As a matter of fact, the answer herein alleges that the petition states no cause of action.

(3)Tolentino v. Board of Accountancy (90 Phil 83)

Plaintiff in Declaratory Relief Must Sue for his OWN benefit or Because his Rights or Prerogatives are Affected

- Where plaintiff seeks declaratory relief o NOT for his own personal benefit OR because his rights or prerogatives as an

accountant or as an individual are adversely affected BUT rather for the benefit of persons belonging to other professions or callings, who are not parties in this case OR

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o Where the plaintiff does NOT claim to have suffered any prejudice or damage to him or to his rights and prerogatives as an accountant by the use of the disputed trade name by the defendants who also are certified accountants

The case does NOT properly come under the Rule on Declaratory Relief .

- His complaint is rather addressed against the propriety of the use of said trade name by the defendants because it is misleading and is liable to defraud the public. Plaintiff, therefore, has no actual justiciable controversy against the defendants which may give him the right to secure relief by asserting the unconstitutionality of the law in question.

Requisites for Justiciability- EXCEPT that accomplished physical wrong need not be alleged in a petition for declaratory

relief, a case of such nature must exhibit all the usual conditions of an ordinary action. There must be

o (1) Real parties in interesto (2) Asserting adverse claimso (3) Presenting a ripe issue

- The requisites of justiciability of an action for declaratory relief are met when the court is “satisfied that an actual controversy or the ripening seeds of one, exist between the parties, all of whom are sui juris and before the court, and that the declaration sought will be a practical help in ending the controversy.”

(4)Lim v. Republic (37 SCRA 783)

Declaratory Relief is Inapplicable in Declaring Political Status of Natural Persons- Citizenship is NOT a proper subject for declaratory judgment. It is NOT proper to

resolve doubts concerning one’s citizenship.- There is NO proceeding established by law or the rules by which any person

claiming to be a citizen may get a declaration in a court of justice to that effect or in regard to his citizenship.

o IF the petition seeks to compel the Commissioner of Immigration to cancel her alien certificate of registration, declaratory telief would NOT lie because such a remedy of cancellation of alien certificate of registration can only be had by virtue of a judgment of a competent court in an action where the citizenship of the parties is a material matter in issue.

(5)Edades v. Edades (99 Phil 675)

NO Justiciable Controversy when Seeking Declaration of Illegitimate Status as Regards Right of Inheritance When Putative Parent Still Alive

- The present case does not come within the purview of the law authorizing an action for declaratory relief for it neither concerns a deed, will, contract or other written instrument, nor does it affect a statute or ordinance, the construction or validity of which is involved.

- Nor is it predicated on any justiciable controversy for admittedly the alleged rights of inheritance which plaintiff desires to assert against the defendants as basis of the relief he is seeking for have not yet accrued for the simple reason that his alleged father Emigdio Edades has not yet died. In fact, he is one of the herein defendants. And the law is clear that “the rights to the succession are transmitted from the moment of the death of the decedent” Up to that moment, the right to succession is merely speculative for, in the meantime, the law may change, the will of the testator may vary, or the circumstances may be modified to such an extent that he who expects to receive property may be deprived of it. Indeed, the moment of death is the determining point when an heir acquires a definite right to the inheritance.

Declaratory Relief Permissible Remedy for Recognition of Status as an Illegitimate Child

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- There is no express provision in the new Civil Code which prescribe the step that may be taken to establish such status as in case of a natural child who can bring an action for recognition (Article 285), but this silence notwithstanding, we declare that a similar action may be brought under similar circumstances considering that an illegitimate child other than natural is now given successional rights and there is need to establish his status before such rights can be asserted and enforced.

o This right is impliedly recognized by Article 289 which permits the investigation of the paternity or maternity of an illegitimate child in the same manner as in the case of a natural child. Considering that the rules of procedure shall be liberally construed to promote their object and avoid an expensive litigation (section 2, Rule 1), we hold that the present action may be maintained in the light of the view herein expressed.

(6)Tanda v. Aldaya (98 Phil 244)

“Other Written Instrument” NOT Include Court Decision- A court decision cannot be interpreted as included within the purview of the words “other

written instrument”, as contended by Appellant, for the simple reason that the Rules of Court already provide for the ways by which an ambiguous or doubtful decision may be corrected or clarified without need of resorting to the expedient prescribed by Rule 63.

o Thus, if a party is not agreeable to a decision either on questions of law or of fact, he may file with the trial court a motion for reconsideration or a new trial in order that the defect may be corrected. The same remedy may be pursued by a party with regard to a decision of the CA or of the SC.

o A party may even seek relief from a judgment or order of an inferior court on the ground of fraud, accident, mistake or excusable negligence if he avails of that remedy within the terms prescribed by Rule 38. Apparently, Appellant has already availed of some of these legal remedies but that he was denied relief because his claim was found unmeritorious.

Declaratory Relief Subject to Res Judicata- But the fundamental reason why the decision of this Court in the original case cannot be the

subject of declaratory relief is predicated upon the principle of res judicata which stamps the mark of finality on a case which has been fully and definitely litigated in court.

- It avoids multiplicity of actions. It commands that once a case is definitely litigated it should not be reopened. “The foundation principle upon which the doctrine of res judicata rests is that parties ought not to be permitted to litigate the same issue more than once; that, when a right or fact has been judicially tried and determined by a court of competent jurisdiction, or an opportunity for such trial has been given, the judgment of the court, so long as it remains unreversed, should be conclusive upon the parties , and those in privity with them in law or estate.

- It is considered that a judgment presents evidence of the facts of so high a nature that nothing which could be proved by evidence aliunde would be sufficient to overcome it; therefore it would be useless for a party against whom it can be properly applied to adduce any such evidence, and accordingly he is estopped or precluded by law from doing so. Such is the character of an estoppel by matter of record, as in case of an issue on a question of fact, judicially tried and decided.”

(7)De Borja v. Villadolid (85 Phil 36)

General Purpose of Declaratory Relief- The general purpose of declaratory judgment act is to provide for adjudication of the legal

rights, duties, or status of the respective parties.

“BEFORE BREACH”

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- It is quite clear that if appellant is prosecuted and found criminally liable, then the punishment prescribed by section 78 of the law, will be imposed upon him; otherwise the charge will be dismissed. In either case, the action is, as stated by the Solicitor General, terminated with finality. It might be argued that no criminal action has as yet been presented. But the law does not require that there shall be an actual pending case. It is sufficient that there is a breach of the law, an actionable violation to bar a complaint for declaratory judgment.

(8)Araneta v. Gatmaitan (101 Phil 328)

Declaratory Relief Proper to Determine Constitutionality of an Executive Order- The Solicitor General avers that the constitutionality of an executive order cannot be ventilated

in a declaratory relief proceeding. We find this untenable, for this Court taking cognizance of an appeal from the decision of the lower court in the case of Hilado vs. De la Costa, et al ., which involves the constitutionality of another executive order presented in an action for declaratory relief, in effect accepted the propriety of such action.

(9)Mejia v. Gabayan (455 SCRA 499)

Declaratory Relief NOT a Substitute for All Existing Remedies- Based on case law, an action for declaratory relief is proper only if adequate relief is

not available through other existing forms of actions or proceedings. A petition for a declaratory relief cannot be made a substitute for all existing remedies and should be used with caution. Relief by declaratory judgment is sui generis and not strictly legal or equitable yet its historical affinity is equitable. The remedy is not designed to supplant existing remedies.

Declaratory Relief as a Purely Statutory Remedy- It may be reiterated that the action for declaratory relief which originated in the classical

Roman law, had been used in Scotland for four centuries and adopted in England and other European countries. The remedy is purely statutory in nature and origin. The remedy is an extension of the ancient quia timet.

Declaratory Relief NOT Create or Change Substantial Rights or Character of Controversies- A declaratory judgment does NOT create or change substantial rights or modify any

relationship or alter the character of controversies.

RULE 64REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTION

OF THE COMMISSION ON ELECTIONS AND THE COMMISSION ON AUDIT

Sec. 1. Scope.This Rule

- Shall govern the review of judgments and final orders or resolutions of the COMELEC and the COA

Sec. 2. Mode of Review.A judgment or final order or resolution of the COMELEC and COA

- May be brought by the aggrieved party- To the SC- On certiorari under Rule 65- EXCEPT as hereinafter provided

Sec. 3. Time to File a Petition.

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The petition - Shall be filed within 30 days FROM notice of judgment or final order or resolution sought to

be reviewed

The filing of the MNT/MR of said judgment or final order or resolution - IF allowed under the procedural rules of the Commission concerned- Shall INTERRUPT the period herein fixed

IF the motion is DENIEDThe aggrieved party

- May file the petition within the remaining period- But which shall NOT be less than 5 days in any event- Reckoned from the notice of denial

Sec. 4. Docket and Other Lawful Fees.Upon filing of the petitionThe petitioner

- Shall pay the COC the docket and other lawful fees AND- Deposit the amount of P500 for costs

Sec. 5. Form and contents of petition.The petition

- Shall be verified AND- Filed in 18 legible copies

The petition - Shall name the aggrieved party as petitioner AND- Shall join as respondents

o The Commission concerned ANDo The person/s interested in sustaining the judgment, final order or resolution a quo

The petition - Shall state the facts with certainty- Present clearly the issues involved- Set forth the grounds and brief arguments relied upon for review AND- Pray for judgment annulling or modifying the questioned judgment, final order or

resolution

Findings of fact of the Commission - Supported by substantial evidence - Shall be final and non-reviewable

The petition - Shall be accompanied by a clearly legible duplicate original OR certified true copy of the

judgment or final order or resolution subject thereof- Together with certified true copies of such material portions of the record as are

referred to therein AND- Other documents relevant and pertinent thereto

The requisite number of copies of the petition - Shall contain plain copes of all documents attached to the original copy of said petition

The petition - Shall state the specific material dates

o Showing that it was filed within the period fixed herein AND- Shall contain a sworn certification against forum shopping

o As provided in Sec. 3, Rule 46

The petition - Shall further be accompanied by proof of service of a copy thereof

o On the Commission concerned AND

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o On the adverse party AND- Of timely payment of docket and other lawful fees

The failure of petitioner to comply with ANY of the foregoing requirements - Shall be sufficient ground for the dismissal of the petition

Sec. 6. Order to comment.IF the SC finds that the petition is sufficient in form and substanceIT

- Shall ORDER the respondents to file their comments on the petition within 10 days from notice thereof

- OTHERWISE the court may DISMISS the petition outright

The court - May also dismiss the petition- IF it was filed

o Manifestly for delay ORo The questions raised are too insubstantial to warrant further proceedings

Sec. 7. Comments of respondents.The COMMENTS of respondents

- Shall be filed in 18 legible copies

The original - Shall be accompanied by certified true copies of such material portions of the record as

are referred to therein - Together with other supporting papers

The requisite number of copies of the comments - Shall contain plain copies of all documents attached to the original AND- A copy thereof shall be served on the petitioner

NO other pleading - May be filed by any party- UNLESS required or allowed by the Court

Sec. 8. Effect of filing.The filing of a petition for certiorari

- Shall NOT STAY the execution of judgment or final order or resolution sought to be reviewed

- UNLESS the SC shall direct otherwise upon such terms as it may deem just

Sec. 9. Submission for decision.UNLESS the Court

- Sets the case for oral argument OR- Requires the parties to submit memoranda

o The case Shall be DEEMED SUBMITTED for decision Upon the filing of the comments on the petition or of such other pleadings or

papers as may be required or allowed OR The expiration of the period to do so

CASES

(1)Aratuc v. COMELEC (88 SCRA 251)

Certiorari to the Supreme Court: only on grave abuse of discretion in due regard for the independence of the COMELEC

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- It is at once evident from these constitutional and statutory modifications that there is a definite tendency to enhance and invigorate the role of the COMELEC as the independent constitutional body charged with the safeguarding of free, peaceful and honest elections.

-- Withal, as already stated, the legislative construction of the modified pertinent constitutional

provision is to the effect that the actuations of the Commission are final, executory and even unappealable. While such construction does not exclude the general certiorari jurisdiction of the Supreme Court which inheres in it as the final guardian of the Constitution, particularly, of its imperious due process mandate, it correspondingly narrows down the scope and extent of the inquiry the Court is supposed to undertake to what is strictly the office of certiorari as distinguished from review.

- It is but proper that the Court should accord the greatest measure of presumption of regularity to the COMELEC’s course of action and choice of means in performing its duties, to the end that it may achieve its designed place in the democratic fabric of our government.

- We hold, therefore that under the existing constitution and statutory provisions, the certiorari jurisdiction of the Court over orders, and decisions of the Comelec is not as broad as it used to be and should be confined to instances of grave abuse of discretion amounting to patent and

Review vs. Certiorari- A review includes digging into the merits and unearthing errors of judgment, while certiorari

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. While the effects of an error of judgment may not differ from that of an indiscretion, as a matter of policy, there are matters that by their nature ought to be left for final determination to the sound discretion of certain officers or entities, reserving it to the Supreme Court to insure the faithful observance of due process only in cases of patent arbitrariness.

- substantial denial of due process.

(2)Dario v. Mison (176 SCRA 84)

CSC: Certiorari via Rule 65 – Grave Abuse of Discretion- We observe no fundamental difference between the COMELEC and the CSC or the COA for that

matter, in terms of the constitutional intent to leave the constitutional bodies alone in the enforcement of laws relative to elections, with respect to the former, and the civil service, with respect to the latter (or the audit of government accounts, with respect to the COA). As the poll body is the "sole judge" of all election cases, so is the Civil Service Commission the single arbiter of all controversies pertaining to the civil service.

- It should also be noted that under the new Constitution, as under the 1973 Charter, "any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari," which, as Aratuc tells us, "technically connotes something less than saying that the same 'shall be subject to review by the Supreme Court,' " which in turn suggests an appeal by petition for review under Rule 45. Therefore, our jurisdiction over cases emanating from the Civil Service Commission is limited to complaints of lack or excess of jurisdiction or grave abuse of discretion tantamount to lack or excess of jurisdiction, complaints that justify certiorari under Rule 65.

(3)Garces v. CA (259 SCRA 99)

Case or Matter Subject to Certiorari Pertains the Commission’s Exercise of Judicial or Quasi-Judicial Powers; And on Case or Matter dealing with ELECTIVE officials

- The settled rule is that "decision, rulings, order" of the COMELEC that may be brought to the Supreme Court on certiorari under Sec. 7 Art. IX-A are those that relate to the COMELEC's

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exercise of its adjudicatory or quasi-judicial powers involving " ELECTIVE regional, provincial, and city officials."

- In this case, what is being assailed is the COMELEC's choice of an appointee to occupy the Gutalac Post which is an administrative duty done for the operational set-up of an agency. The controversy involves an appointive, not an elective, official. Hardly can this matter call for the certiorari jurisdiction of the Supreme Court. To rule otherwise would surely burden the Court with trivial administrative questions that are best ventilated before the RTC, a court which the law vests with the power to exercise original jurisdiction over "all cases not within the exclusive jurisdiction over of any court, tribunal, person or body exercising judicial or quasi-judicialfunctions.

RULE 65CERTIORARI, PROHIBITION AND MANDAMUS

Sec. 1. Petition for certiorari.When any tribunal, board or officer

- Exercising judicial or quasi-judicial functions- Has acted

o Without ORo In excess of its/his jurisdiction ORo With grave abuse of discretion amounting to lack or excess of jurisdiction AND

- There is NO appeal NOR any plain, speedy and adequate remedy in the ordinary course of law

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

The petition - Shall be accompanied by a certified true copy of the judgment, order or resolution

subject thereof- Copies of all pleadings and documents relevant and pertinent thereto AND- A sworn certification of non-forum shopping

o As provided in the 3rd par. of Sec. 3, Rule 46

Sec. 2. Petition for Prohibition.When the proceedings of any tribunal, corporation, board, officer or person

- Whether exercising judicial, quasi-judicial or ministerial functions- Are

o Without ORo In excess of its/his jurisdiction ORo With grave abuse of discretion amounting to lack or excess of jurisdiction AND

- There is NO appeal NOR any plain, speedy and adequate remedy in the ordinary course of law

A person aggrieved thereby- May file a verified petition in the proper court- Alleging the facts with certainty AND- Praying that judgment be rendered commanding the respondent to desist from further

proceedings in the action or matter specified therein OR- Otherwise granting such incidental reliefs as law and justice may require

The petition - Shall likewise be accompanied by a certified true copy of the judgment, order or

resolution subject thereof

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- Copies of all pleadings and documents relevant and pertinent thereto AND- A sworn certification of non-forum shopping

o As provided in the 3rd par. of Sec. 3, Rule 46

Sec. 3. Petition for mandamus.When any tribunal, corporation, board, officer or person

- Unlawfully NEGLECTS the performance of an acto Which the law specifically enjoinso As a duty resulting from an office, trust, or station OR

- Unlawfully EXCLUDES another from the use and enjoyment of a right or officeo To which such is entitled AND

- There is NO appeal NOR any plain, speedy and adequate remedy in the ordinary course of law

A person aggrieved thereby- May file a verified petition in the proper court- Alleging the facts with certainty AND- Praying that judgment be rendered commanding the respondent

o Immediately or some other time to be specified by the courto TO DO the act required to be done

To protect the rights of the petitioner ANDo TO PAY the damages sustained by the petitioner by reason of the wrongful acts

of the respondent

The petition - Shall also contain a sworn certification of non-forum shopping

o As provided in the 3rd par. of Sec. 3, Rule 46

Sec. 4. When and where to file the petition.The petition

- Shall be filed NOT LATER than 60 days from notice of the judgment, order or resolution

In case a MR or MNT is timely filed- Whether such motion is required of not- The petition

o Shall be filed NOT LATER than 60 dayso Counted from the notice of the denial of the motion

IF the petition relates to an act or omission of a - MTC - Corporation - Board - Officer - Person

o It shall be filed in the RTC exercising jurisdiction over the territorial area As defined by the SC

IT - May also be filed with the CA or the SB- Whether or not the same is in aid of the court’s appellate jurisdiction

IF the petition involves an act or omission of a quasi-judicial agencyUNLESS otherwise provided by law or these rulesThe petition

- Shall be filed with and be cognizable ONLY by the CA

In election cases- Involving an act or omission of MTC or RTC- The petition

o Shall be filed exclusively with the COMELECo In aid of its appellate jurisdiction

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Sec. 5. Respondents and costs in certain cases.When the petition filed related to the acts or omissions of a

- Judge- Court- Quasi-judicial agency- Tribunal- Corporation- Board- Officer OR- Person

The petitioner - Shall join as private respondents

o The person/s interested in sustaining the proceedings in court AND

It shall be the duty of such PRIVATE respondents - To appear and defend- Both in his or their own behalf AND- In behalf of the public respondent/s affected by the proceedings AND

The COSTS awarded in such proceedings in favor of the petitioner - Shall be against the private respondents only AND- NOT against the judge, court, quasi-judicial agency, tribunal, corporation, board, officer or

person impleaded as public respondent/s

UNLESS otherwise specifically directed by the court where the petition is pendingThe PUBLIC respondents

- Shall NOT appear in or file an answer or comment to the petition or any pleading therein

IF the case is elevated to a higher court by either partyThe public respondents

- Shall be included therein as nominal parties

HoweverUNLESS otherwise specifically directed by the courtThey

- Shall NOT appear or participate in the proceedings therein

Sec. 6. Order to comment.IF the petition is sufficient in form and substance to justify such processThe court

- Shall issue an order requiring the respondent/s to comment on the petition - Within 10 days from receipt of a copy thereof

Such order - Shall be served on the respondents in such manner as the court may direct- Together with a copy of the petition and any annexes thereto

In petitions for certiorari before the SC and the CA The provisions of Sec. 2, Rule 56

- Shall be observed

Before giving due course theretoThe court

- May require the respondents to file their comment to AND- NOT a MD , the petition

ThereafterThe court

- May require the filing of a reply and such other responsive and other pleadings - As it may deem necessary and proper

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Sec. 7. Expediting proceedings; injunctive relief.The court in which the petition is filed

- May issue orders expediting the proceedings AND- It may also grant a TRO or a writ of PI

o For the preservation of the rights of the partieso Pending such proceedings

The petition - Shall NOT interrupt the course of the principal case- UNLESS a TRO or a writ of PI has been issued

o Enjoining the public respondent from further proceeding with the case

The public respondent - Shall proceed with the principal case- Within 10 days from the filing of a petition for certiorari with a higher court or

tribunalo Absent a TRO or a PI ORo Upon its expiration

Failure of the public respondent to proceed with the principal case - May be a ground for an administrative charge

Sec. 8. Proceedings after comment is filed.AFTER the comment or other pleadings required by the court are filed ORThe time for the filing thereof has expiredThe court

- May hear the case OR- Require the parties to submit memoranda

IF AFTER such hearing or filing of memoranda ORUpon expiration of the period for filingThe court

- Finds that the allegations of the petition are TRUE- IT shall render judgment for such relief to which the petitioner is entitled

HoweverThe court

- May DISMISS the petition- IF it finds the same

o Patently without merit ORo Prosecuted manifestly for delay ORo IF the questions raised therein are too insubstantial to require consideration

In such eventThe court

- May award in favor of the respondent- TREBLE COSTS - Solidarily against the petitioner and counsel - In addition to subjecting counsel to administrative sanctions under Rules 139 and 139-B of

ROC

The court may impose - Motu proprio - Based on res ipsa loquitur- Other disciplinary sanctions or measures on erring lawyers

o For patently dilatory and unmeritorious petitions for certiorari

Sec. 9. Service and enforcement of order or judgment.A certified true copy of the judgment rendered in accordance with the last preceding section

- Shall be served upon the court, quasi-judicial agency, tribunal, corporation, board, officer or

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person concerned- In such manner as the court may direct AND

Disobedience thereto - Shall be punished as CONTEMPT

An execution - May issue for any damages or costs awarded- In accordance with Sec. 1 of Rule 39

CASES

A. CERTIORARI

(1)Meralco Securities Industrial Corporation v. CBAA (114 SCRA 260)

Writ of Certiorari- It is a writ issued by a superior court to an inferior court, board or officer exercising

judicial or quasi-judicial functions whereby the record of a particular case is ordered to be elevated for review and correction in matters of law.

-Writ of Certiorari on Administrative Agencies; Underlying Power of Courts

- The rule is that as to administrative agencies exercising quasi-judicial power there is an underlying power in the courts to scrutinize the acts of such agencies on questions of law and jurisdiction EVEN THOUGH NO right of review is given by the statute

Purpose of Certiorari- The purpose of judicial review is to keep the administrative agency within its

jurisdiction and protect substantial rights of parties affected by its decisions" The review is a part of the system of checks and balances which is a limitation on the separation of powers and which forestalls arbitrary and unjust adjudications.

Grounds- Judicial review of the decision of an official or administrative agency exercising quasi-judicial

functions is proper in cases of lack of jurisdiction, error of law, grave abuse of discretion, fraud or collusion or in case the administrative decision is corrupt, arbitrary or capricious

(2)Nunal v. COA (169 SCRA 356)

Certiorari as a Prerogative Writ; Discretionary Issuance- The Writ of certiorari dealt with in Rule 65 of the Rules of Court is a prerogative Writ, never

demandable as a matter of right, "never issued except in the exercise of judicial discretion."

(3)Tuason v. RD, Caloocan City (157 SCRA 613)

Certiorari Applicable to Judicial or Quasi-Judicial Acts- The extraordinary writ of certiorari may properly issue to nullify only judicial or quasi-judicial

acts , unlike the writ of prohibition which may be directed against acts either judicial or ministerial . Section 1, Rule 65 of the Rules of Court deals with the writ of certiorari in relation to "any tribunal, board or officer exercising judicial functions, while Section 2 of the same Rule treats of the writ of prohibition in relation to "proceedings of any tribunal, corporation, board, or person ... exercising functions judicial or ministerial." But the petition will be shown upon analysis to be in reality directed against an unlawful exercise of judicial power.

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Judicial Act: Determination of Facts, Application of Law, and Declaration of Rights- The decree reveals that Mr. Marcos exercised an obviously judicial function. He made a

determination of facts, and applied the law to those facts, declaring what the legal rights of the parties were in the premises. These acts essentially constitute a judicial function , or an exercise of jurisdiction — which is the power and authority to hear or try and decide or determine a cause.

o He adjudged it to be an established fact that neither the original purchasers nor their subsequent transferees have made full payment of all installments of the purchase money and interest on the lots claimed by Carmel Farms, Inc., including those on which the dwellings of the members of the Association of Homeowners stand." And applying the law to that situation, he made the adjudication that "title to said land has remained with the Government, and the land now occupied by the members of said association has never ceased to form part of the property of the Republic of the Philippines," and that any and all acts affecting said land and purporting to segregate it from the said property of the Republic were null and void ab initio as against the law and public policy.

Without Jurisdiction: NEVER vested with judicial power and which was exercised very arbitrarily

- These acts may thus be properly struck down by the writ of certiorari , because done by an officer in the performance of what in essence is a judicial function, if it be shown that the acts were done without or in excess of jurisdiction, or with grave abuse of discretion. Since Mr. Marcos was never vested with judicial power, such power, as everyone knows, being vested in the Supreme Court and such inferior courts as may be established by law — the judicial acts done by him were in the circumstances indisputably perpetrated without jurisdiction. The acts were completely alien to his office as chief executive, and utterly beyond the permissible scope of the legislative power that he had assumed as head of the martial law regime.

- Moreover, he had assumed to exercise power — i.e. determined the relevant facts and applied the law thereto without a trial at which all interested parties were accorded the opportunity to adduce evidence to furnish the basis for a determination of the facts material to the controversy. The adjudication was patently and grossly violative of the right to due process to which the petitioners are entitled in virtue of the Constitution. Mr. Marcos, in other words, not only arrogated unto himself a power never granted to him by the Constitution or the laws but had in addition exercised it unconstitutionally.

Treating Certiorari as Prohibition- In any event, this Court has it in its power to treat the petition for certiorari as one for

prohibition if the averments of the former sufficiently made out a case for the latter. Considered in this wise, it will also appear that an executive officer had acted without jurisdiction — exercised judicial power not granted to him by the Constitution or the laws — and had furthermore performed the act in violation of the constitutional rights of the parties thereby affected. The Court will grant such relief as may be proper and efficacious in the premises even if not specifically sought or set out in the prayer of the appropriate pleading, the permissible relief being determined after all not by the prayer but by the basic averments of the parties' pleadings.

(4)Gold City Integrated Port Services Inc. v. IAC (171 SCRA 579)

Certiorari to Correct Errors of Jurisdiction NOT Errors of Judgment- Certiorari will NOT be issued to cure errors in proceedings or correct erroneous

conclusions of law or fact. As long as a Court acts within its jurisdiction, any alleged errors committed in the exercise of its jurisdiction, will amount to nothing more than errors of judgment which are reviewable by timely appeal and not by a special civil action of certiorari

Grave Abuse of Discretion- Grave abuse of discretion means such capricious and whimsical exercise of judgment as is

equivalent to lack of jurisdiction. Abuse of discretion alone is not sufficient. Rather, it must be grave as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and must be so patent and gross as to amount to an

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evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.

o In this case: That the Courts below were lawfully vested with jurisdiction to hear and act on the Motions to fix attorney's fees is beyond question. Any alleged mistakes committed in the exercise thereof would be errors of judgment not reviewable by a special civil action of Certiorari. While petitioner claims that the Orders were issued ex-parte, its filing of a Motion for Reconsideration, which was orally argued and subsequently supported by a memorandum and documents, had cured that defect.

Certiorari NOT a Replacement for Appeal- Having failed to interpose a timely appeal from the impugned Orders, petitioners may not avail

of the Writ of certiorari to offset the adverse effects of their omission.

(5)St. Peter Memorial Park, Inc. v. Campos (63 SCRA 180)

Certiorari Permissible when Appeal, Although Available is Inadequate- The general rule is that the extraordinary writ of certiorari is not proper when

ordinary appeal is available. However, we have granted the writ in cases where it is shown that appeal would be inadequate, slow, insufficient and will not promptly relieve petitioner from the injurious effects of the order complained of. In fact, in Alfonso vs. Yatco to avoid future litigations, we passed upon a petition for certiorari though the proper remedy was appeal.

-o "To draw a tenuous jurisdictional line is to undermine stability in litigations. A piece

meal resort to one Court and another gives rise to multiplicity of suits... The time to be lost, effort wasted, anxiety augmented, additional expense incurred...these are considerations which weigh heavily against split jurisdiction. Indeed, it is more in keeping with orderly administration of justice that all the causes of action here be cognizable and heard by only one court.”

o In this case: As many memorial lot buyers are affected, and the very integrity of the Torrens system is at stake, public interest is involved.

(6)Valencia v. CA (184 SCRA 561)

“No appeal, nor any plain, speedy and adequate remedy in the ordinary course of law" - The availability of the ordinary course of appeal does not constitute sufficient ground to

prevent a party from making use of the extraordinary remedy of certiorari where appeal is not an adequate remedy or equally beneficial, speedy and sufficient. It is the inadequacy — not the mere absence — of all other legal remedies and the danger of failure of justice without the writ that usually determines the propriety of certiorari.

Certiorari Lies Against Order Granting Execution Pending Appeal- Thus, we held therein, and we so reiterate for purposes of the case at bar, that certiorari lies

against an order granting execution pending appeal where the same is not founded upon good reasons. Also, the fact that the losing party had appealed from the judgment does not bar the certiorari action filed in respondent court as the appeal could not be an adequate remedy from such premature execution.

Supersedeas Bond is NOT a Plain Speedy Adequate Remedy- That petitioner could have resorted to a supersedeas bond to prevent execution pending

appeal, as suggested by the two lower courts, is not to be held against him. The filing of such bond does not entitle him to the suspension of execution as a matter of right. It cannot, therefore, be categorically considered as a plain, speedy and adequate remedy. Hence, no rule requires a losing party so circumstances to adopt such remedy in lieu or before availment of other remedial options at hand.

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(7)National Electrification Administration v. CA (126 SCRA 394)

Exceptions to the General Rule that an MR Must First be Resorted to- MR would be lifeless.

o Respondent Judge, in effect, deprived petitioner of its right to Appeal and other plain, speedy and adequate remedy in the ordinarily course of law, hence, making petitioner's resort to the instant petition a virtual necessity. As was held in People v. Palacio, an MR may be dispensed with if under the circumstances, such as in the case at bar, it would have been lifeless.

- Public Interesto Petitioner is a government corporation performing governmental functions. Public

interest being involved, a MR need not be availed of.

- Time is of the Essence o Petitioner averred that time was of the essence because respondents were in the

process of executing the assailed judgment of the trial court with precipitate haste, the enforcement of which would have impaired petitioner corporation's operations and funds.

o In Vivo vs. Cloribel, and Bache and Co., this Court held that an MR is no longer a prerequisite where there is urgent necessity and any further delay would prejudice the interests of the Government.

- Substantial Justiceo The error in the case is purely technical, To take advantage of it rather than to cure it,

does not appeal to a fair sense of justice. Its presentation as fatal to the plaintiff's case smacks of skill rather than right. A litigation is not a game of technicalities in which one, more deeply schooled and skilled in the subtle art of movement and position entraps and destroys the other. It is, rather, a contest in which each contending party fully and fairly lays before the court the facts in issue, and then brushing aside as wholly trivial and indecisive all imperfections of form and technicalities of procedure, asks that justice be done on the merits. Lawsuits, unlike duels are not to be won by the rapier's thrust. Technicality when it deserts its proper office as an aid to justice becomes its great hindrance and enemy, and deserves scant consideration from the courts. There are no vested rights in technicalities.

(8)Holy Spirit Homeowners Association v. Defensor (497 SCRA 581)

Hierarchy of Courts; Exception; When Direct Resort can be Made to SC via Rule 65- In Heirs of Bertuldo Hinog v. Melicor,the Court said that it will not entertain direct resort to it

unless the redress desired cannot be obtained in the appropriate courts, and exceptional and compelling circumstances, such as cases of national interest and of serious implications, justify the availment of the extraordinary remedy of writ of certiorari, calling for the exercise of its primary jurisdiction.

o In this case: A perusal, however, of the petition for prohibition shows no compelling, special or important reasons to warrant the Court’s taking cognizance of the petition in the first instance. Petitioner also failed to state any reason that precludes the lower courts from passing upon the validity of the questioned IRR. Moreover, as provided in Sec. 5, Art. VIII of the Constitution, the Court’s power to evaluate the validity of an implementing rule or regulation is generally appellate in nature. Thus, following the doctrine of hierarchy of courts, the instant petition should have been initially filed with the RTC.  

Prohibition NOT Allowed to Question QUASI-LEGISLATIVE Functions- A petition for prohibition is also NOT the proper remedy to assail an IRR issued in the exercise

of a quasi-legislative function. - Prohibition is an extraordinary writ directed against any tribunal, corporation, board, officer or

person, whether exercising judicial, quasi-judicial or ministerial functions, ordering said entity or person to desist from further proceedings when said proceedings are without or in excess of said entity’s or person’s jurisdiction, or are accompanied with grave abuse of

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discretion, and there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law.

- Prohibition lies against judicial or ministerial functions, but not against legislative or quasi-legislative functions.

Purpose of Prohibition- Generally, the purpose of a writ of prohibition is to keep a lower court within the limits of its

jurisdiction in order to maintain the administration of justice in orderly channels.

- Prohibition is the proper remedy to afford relief against usurpation of jurisdiction or power by an inferior court, or when, in the exercise of jurisdiction in handling matters clearly within its cognizance the inferior court transgresses the bounds prescribed to it by the law, or where there is no adequate remedy available in the ordinary course of law by which such relief can be obtained. Where the principal relief sought is to invalidate an IRR, petitioners’ remedy is an ordinary action for its nullification, an action which properly falls under the jurisdiction of the RTC.

- In any case, petitioners’ allegation that “respondents are performing or threatening to perform functions without or in excess of their jurisdiction” may appropriately be enjoined by the trial court through a writ of injunction or a temporary restraining order.

(9)Henares v. LTFRB (505 SCRA 104)

Grounds for MandamusMandamus lies under any of the following cases:

- (1) Against any tribunal which unlawfully neglects the performance of an act which the law specifically enjoins as a duty;

- (2) In case any corporation, board or person unlawfully neglects the performance of an act which the law enjoins as a duty resulting from an office, trust, or station; and

- (3) In case any tribunal, corporation, board or person unlawfully excludes another from the use and enjoyment of a right or office to which such other is legally entitled;

- AND there is no other plain, speedy, and adequate remedy in the ordinary course of law.

There must be a CLEAR LEGAL RIGHT and an IMPERATIVE DUTY- Mandamus is employed to compel the performance, when refused, of a ministerial duty, this

being its main objective. It does NOT lie to require anyone to fulfill contractual obligations or to compel a course of conduct, nor to control or review the exercise of discretion

- On the part of the petitioner, it is essential to the issuance of a writ of mandamus that he should have a clear legal right to the thing demanded and it must be the imperative duty of the respondent to perform the act required. It never issues in doubtful cases. While it may not be necessary that the duty be absolutely expressed, it must however, be clear.

- The writ will not issue to compel an official to do anything which is not his duty to do or which is his duty not to do, or give to the applicant anything to which he is not entitled by law. The writ neither confers powers nor imposes duties. It is simply a command to exercise a power already possessed and to perform a duty already imposed.

There must be a law that requires the act to be done: MINISTERIAL- Mandamus is available only to compel the doing of an act specifically enjoined by

law as a duty. Here, there is no law that mandates the respondents LTFRB and the DOTC to order owners of motor vehicles to use CNG. At most the LTFRB has been tasked by E.O. No. 290 "to grant preferential and exclusive Certificates of Public Convenience (CPC) or franchises to operators of NGVs based on the results of the DOTC surveys."

Mandamus NOT lie between coordinate branches of government

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- Mandamus will not generally lie from one branch of government to a coordinate branch, for the obvious reason that neither is inferior to the other. The need for future changes in both legislation and its implementation cannot be preempted by orders from this Court, especially when what is prayed for is procedurally infirm. Besides, comity with and courtesy to a coequal branch dictate that we give sufficient time and leeway for the coequal branches to address by themselves the environmental problems raised in this petition.

(10) Uy Kiao Eng v. Nixon Lee (610 SCRA 211)

Mandamus as a Remedy of Public Character; Public Right- Mandamus is a command issuing from a court of law of competent jurisdiction, in the name of

the state or the sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed or from operation of law.

- This definition recognizes the public character of the remedy, and clearly excludes the idea that it may be resorted to for the purpose of enforcing the performance of duties in which the public has no interest. The writ is a proper recourse for citizens who seek to enforce a public right and to compel the performance of a public duty, most especially when the public right involved is mandated by the Constitution.

o As the quoted provision instructs, mandamus will lie if the tribunal, corporation, board, officer, or person unlawfully neglects the performance of an act which the law enjoins as a duty resulting from an office, trust or station.

- Mandamus cannot be used to enforce contractual obligations .

Generally, mandamus will NOT lie to enforce purely private contract rights, and will not lie against an individual unless some obligation in the nature of a public or quasi-public duty is imposed. The writ is NOT appropriate to enforce a private right against an individual.

Mandamus as PREROGATIVE WRIT- The writ of mandamus lies to enforce the execution of an act, when, otherwise, justice would

be obstructed; and, regularly, issues only in cases relating to the public and to the government; hence, it is called a prerogative writ. To preserve its prerogative character, mandamus is not used for the redress of private wrongs, but only in matters relating to the public.

Mandamus Inapplicable IF the Right is Doubtful- The writ of mandamus, however, will not issue to compel an official to do anything which is 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. Nor will mandamus issue to enforce a right which is in substantial dispute or as to which a substantial doubt exists, although objection raising a mere technical question will be disregarded if the right is clear and the case is meritorious.

NO Plain Speedy Adequate Remedy in the Ordinary Course of Law; As an Equitable Remedy- Mandamus can be issued only in cases where the usual modes of procedure and forms of

remedy are powerless to afford relief. Although classified as a legal remedy, mandamus is equitable in its nature and its issuance is generally controlled by equitable principles. Indeed, the grant of the writ of mandamus lies in the sound discretion of the court.

- In this case: The remedy of mandamus cannot be availed of by respondent Lee because there lies another plain, speedy and adequate remedy in the ordinary course of law. Let it be noted that respondent has a photocopy of the will and that he seeks the production of the original for purposes of probate. The Rules of Court, however, does not prevent him from instituting probate proceedings for the allowance of the will whether the same is in his possession or not. See Rule 76, Section 1-5.

(11) Romy’s Freight Service v. Castro (490 SCRA 165)

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Exceptions to General Rule that MR Should First be Made (SAME issue raised, public interest)

- The issue raised in the certiorari proceeding before the appellate court, i.e., whether private respondents were constructively dismissed without just cause, was also the very same issue raised before the NLRC and resolved by it.

- Moreover, the employer-employee relationship between petitioner and private respondents was impressed with public interest.

-Certiorari does NOT deal with questions of fact or law but of errors of jurisdiction

- The other issues raised by petitioner, i.e., whether private respondents were illegally dismissed or abandoned their work and whether they were entitled to backwages, unpaid benefits, separation pay and attorney’s fees, are not proper subjects of a petition for certiorari. They involve an inquiry into factual matters.

- The Supreme Court is not a trier of facts, more so in the consideration of the extraordinary writ of certiorari where neither questions of fact nor of law are entertained, but only questions of lack or excess of jurisdiction or grave abuse of discretion. The sole object of the writ is to correct errors of jurisdiction or grave abuse of discretion.

Grave Abuse of Discretion- The phrase ‘grave abuse of discretion’ has a precise meaning in law, denoting abuse of

discretion "too patent and gross as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty enjoined or act in contemplation of law, or where the power is exercised in an arbitrary and despotic manner by reason of passion and personal hostility." It does not encompass an error of law. Nor does it include a mistake in the appreciation of the contending parties’ respective evidence or the evaluation of their relative weight.

(12) DBP v. Pingol (420 SCRA 652)

General Rule: Denial of MD/MQ as interlocutory orders; NOT proper subjects of Certiorari- Basic is the doctrine that the denial of a motion to dismiss or to quash, being interlocutory,

cannot be questioned by certiorari; it cannot be the subject of appeal, until final judgment or order is rendered. But this rule is not absolute.

Exceptions to such general rule- Even when appeal is available and is the proper remedy, the Supreme Court has allowed a writ

of certiorari o (1) Where the appeal does not constitute a speedy and adequate remedy

As where 33 appeals were involved from orders issued in a single proceeding which will inevitably result in a proliferation of more appeals

o (2) Where the orders were also issued either in excess of or without jurisdiction o (3) For certain special considerations, as public welfare or public policy o (4) Where in criminal actions, the court rejects rebuttal evidence for the

prosecution as, in case of acquittal there could be NO remedy o (5) Where the order is a patent nullity o (6) Where the decision in the certiorari case will avoid future litigations

- In this case: Indeed, where the questioned order is a patent nullity, or where it was issued in excess or without jurisdiction, resort to certiorari may be allowed. Here, the violation of the rule on forum shopping is obvious. Disregarding such fact constituted grave abuse of discretion on the part of the trial court, amounting to lack or excess of jurisdiction. The remedy of certiorari is therefore proper to assail the patently null order of the Naga court which denied petitioner’s motion to dismiss.

B. PROHIBITION

(1)Matuguina Integrated Wood Products v. CA (263 SCRA 490)

Prohibition deals only with errors of jurisdiction; CANNOT rule on questions of fact.

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- Prohibition is a remedy to prevent inferior courts, corporations, boards or persons from usurping or exercising a jurisdiction or power with which they have not been vested by law.

- As we have held in Mafinco Trading Corporation vs. Ople, et al, in a certiorari or prohibition case, only issues affecting the jurisdiction of the tribunal, board and offices involved may be resolved on the basis of undisputed facts.

- The issue of whether or not petitioner is an alter ego of Milagros Matuguina/MLE, is one of fact, and which should have been threshed out in the administrative proceedings, and not in the prohibition proceedings in the trial court, where it is precisely the failure of the respondent Minister of Natural Resources to proceed as mandated by law in the execution of its order which is under scrutiny.

(2)Morfe v. Justice of Peace of Caloocan (67 Phil 696)

Mandamus and Prohibition- The remedy of mandamus has for its object to compel an inferior tribunal in the proper case,

as a justice of the peace court, to comply with a function which the law specially prescribes as a duty resulting from its office when there is no other plain, speedy and adequate remedy

- Prohibition has for its object that of preventing an inferior tribunal in the proper case, as a justice of the peace court, from executing or continuing to execute an act in excess of its jurisdiction, when there is no other plain, speedy and adequate remedy in the ordinary course of law

Prohibition NOT lie when court is acting within its jurisdiction and without grave abuse - As to that prohibition, the respondent justice of the peace had and has the power to dismiss

the complaints for less serious physical injuries either on petition of the complainants or upon his own for the reason that the cognizance and decision of the crime of less serious physical injuries complained of are within his jurisdiction. He also has authority to receive and docket the new complaints for frustrated murder in place of the former ones, which were filed by the same respondents against the petitioners, and to conduct only the summary and preliminary investigation inasmuch as it is not within his jurisdiction to take cognizance of complaints or informations for the crime of frustrated murder or decide the same, but within that of the proper CFI.

(3)Vergara v. Rugue (78 SCRA 312)

Prohibition as a Preventive Remedy; Errors of Jurisdiction only- The office of the extraordinary remedy of prohibition is not to correct errors of judgment but

to prevent or restrain usurpation by inferior tribunals and to compel them to observe the limitation of their jurisdictions.

- It is a PREVENTIVE remedy. Its function is to restrain the doing of some act to be done. It is not intended to provide a remedy for acts already accomplished. This remedy will lie only to "prevent an encroachment, excess, usurpation, or improper assumption of jurisdiction on the part of an inferior court or tribunal, or to prevent some great outrage upon the settled principles of law and procedure.

- BUT if the inferior court or tribunal has jurisdiction of the person and subject-matter of the controversy, the writ will not lie to correct errors and irregularities in procedure, or to prevent an erroneous decision or an enforcement of an erroneous judgment, or even in cases of encroachment, usurpation, and abuse of judicial power or the improper assumption or jurisdiction, where an adequate and applicable remedy by appeal, writ of error, certiorari, or other prescribed methods of review are available."

- It may be safely asserted as a settled law that "unless the court sought to be prohibited is wanting in jurisdiction over the class of cases to which the pending case belongs or is

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attempting to act in excess of its jurisdiction in a case of which it rightfully has cognizance, the writ will be denied."

(4)Nacionalista Party v. Bautista (85 Phil 101)

Prohibition NOT a replacement for Quo Warranto- The authorities and decisions of courts are almost unanimous that prohibition will not lie to

determine the title of a de facto judicial officer, since its only function is to prevent a usurpation of jurisdiction by a subordinate court

o In this case: Respondent’s designation to act temporarily a member of the COMELEC is unlawful because it offends against the provision of the Constitution creating the COMELEC, the dismissal of the petition would deny and deprive the parties that are affected by such designation of a remedy and relief, because no one is entitled now to the office and a party who is not entitled to the office may not institute quo warrant proceedings, and the respondent as Solicitor General, the only other party who may institute the proceedings, would not proceed against himself. In these circumstances, it is incumbent upon and the duty of this Court to grant a remedy. There are cases involving a situation similar to the one under the consideration wherein it was ruled that the remedy of prohibition may lie.

o Were it not for this anomalous situation where there would be no remedy to redress a constitutional transgression, we would adhere strictly to the time-honored rule that to test the right to an office quo warranto proceedings is the proper remedy.

- Prohibition will not be granted as a substitute for quo warranto for the purpose of trying title to a judicial office by restraining an intruder or de facto officer from acting, on the ground that he is an intruder or a de facto officer. However, a prohibition would lie to a pretend court.

- If a court against which a writ of prohibition is sought is one of established jurisdiction, a plea that the subject matter of a particular suit lies without its jurisdiction, or that the party is not amenable to its cognizance, will ordinarily afford full relief; but when the question involves the legal existence and construction of a court, — a denial of all jurisdiction and not of the particular jurisdiction proposed to be exercised, — a prohibition . . . is the only adequate remedy.

(5)Enriquez v. Macadaeg (84 Phil 674)

Mandamus can be treated as Prohibition- Mandamus is not the proper remedy for correcting that error, for this is not a case where a

tribunal "unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office" or "unlawfully excludes another from the use and enjoyment of a right." It is rather a case where a judge is proceeding in defiance of the Rules of Court by refusing to dismiss an action which would not be maintained in his court. The remedy in such case is prohibition and that remedy is available in the present case because the order complained of, being merely of an interlocutory nature, is not appealable.

- While the petition is for mandamus , the same may well be treated as one for prohibition by waiving strict adherence to technicalities in the interest of a speedy administration of justice pursuant to section 2, Rule 1, Rules of Court.

(6)Asinas v. CFI of Romblon (51 Phil 665)

NO appeal or other plain, speedy and adequate remedy in the ordinary course of law- Although a CFI does exceed its jurisdiction in ordering the payment from the funds under

administration of the expenses incurred by a presumptive for his appearance and that of this witnesses with a view to opposing the probate of an alleged will of his predecessor, because such expenses are not necessary to the management of the estate, or its productivity, yet said decree being of a final character and appealable, and there existing a plain,

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speedy and adequate remedy, such as an appeal, the writ of prohibition cannot be issued.

C. MANDAMUS

(1) Angchanco Jr. v. Ombudsman (268 SCRA 301)

Mandamus to compel action even if the act requires use of discretion; BUT NOT on how to actually exercise such discretion

- Mandamus is employed to compel the performance, when refused, of a ministerial duty, this being its chief use and not a discretionary duty. It is nonetheless likewise available to compel action, when refused, in matters involving judgment and discretion, but not to direct the exercise of judgment or discretion in a particular way or the retraction or reversal of an action already taken in the exercise of either.

- In the performance of an official duty or act involving discretion, the corresponding official can only be directed by mandamus to act, but not to act one way or the other. However, this rule admits of EXCEPTIONS such as in cases where there is gross abuse of discretion, manifest injustice, or palpable excess of authority.

- In this case: The Office of the Ombudsman, due to its failure to resolve the criminal charges against petitioner for more than six years, has transgressed on the constitutional right of petitioner to due process and to a speedy disposition of the cases against him, as well as the Ombudsman's own constitutional duty to act promptly on complaints filed before it. This is a case of plain injustice which calls for the issuance of the writ prayed for.

(2) Kapisanan ng Manggagawa sa Railroad Co. Credit Union Inc. v. Manila Railroad Co. (88 SCRA 616)

Clear Legal Right- It is well establish that only specific legal rights are enforceable by mandamus, that the

right sought to be enforced must be certain and clear, and that the writ not issue in cases where the right is doubtful.

- In this case: The law upon which the supposed right of preference of credit is clear in that it does not grant such right of preference of credit but only imposes upon the employer the duty to deduct from salaries of members amortizations on the latter’s loans to the cooperatives.

(3) Carbungco v. Amparo (83 Phil 638)

Clear Legal Right- In this case: The law and the authorities are, however, clear that this legal provision about the

deposit of the rental corresponding to the previous month within the first ten days of the succeeding month, is mandatory; that upon violation thereof by the appellant, the appellee has the right to ask for execution pending appeal; and that the court is left no discretion extend the period of deposit prescribed by law, postpone the making of said deposit, or otherwise relieve the appellant of the consequences of her on his failure to make the deposit within the precise prescribed by law.

(4) University of San Carlos v. CA (166 SCRA 570)

Mandamus Impermissible to Compel Acts that are within the ambit of Academic Freedom- A university may not be compelled by mandamus to grant graduation honors to any student

who, according to the university's standards, rules and regulations, does not qualify for such honors.

- It is an accepted principle that schools of learning are given ample discretion to formulate rules and guidelines in the granting of honors for purposes of graduation. This is part of

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academic freedom. Within the parameters of these rules, it is within the competence of universities and colleges to determine who are entitled to the grant of honors among the graduating students. Its discretion on this academic matter may not be disturbed much less controlled by the courts unless there is grave abuse of discretion in its exercise.

(5) Madrigal v. Lecaroz (191 SCRA 20)

ONE year prescriptive period for cases affecting titles to public office- The unbending jurisprudence in this jurisdiction is to the effect that a petition for quo warranto

and mandamus affecting titles to public office must be filed within one year from the date the petitioner is ousted from his position.

-- In actions of quo warranto involving right to an office, the action must be instituted within the

period of one year. This has been the law in the island since 1901.

- This is an expression of policy on the part of the State that persons claiming a right to an office of which they are illegally dispossessed should immediately take steps to recover said office and that if they do not do so within a period of one year, they shall be considered as having lost their right thereto by abandonment. There are weighty reasons of public policy and convenience that demand the adoption of a similar period for persons claiming rights to positions in the civil service. There must be stability in the service so that public business may (sic) be unduly retarded; delays in the statement of the right to positions in the service must be discouraged. The following considerations as to public officers may well be applicable to employees in the civil service

(6) Veraguth v. Isabela Sugar (57 Phil 266)

Inspection of Corporate Books Enforceable by Mandamus- The record of all business transactions of the corporation and the minutes of any meeting shall

be open to the inspection of any director, member, stockholder of the corporation at reasonable hours. Directors of a corporation have the unqualified right to inspect the books and records of the corporation at all reasonable times.

(7) University of the East v. City of Manila and Aquino (96 Phil 316)

Mandamus Proper when the law which denies the right is void- It is proper to compel the City Engineer to issue the corresponding permit for the construction

of a high school building on Gastambide Street in accordance with the plans and specifications submitted by the petitioner, although such specifications are not in conformity with the said Zoning Regulations. The Zoning Regulations are void for being an undue delegation of legislative power.

RULE 66QUO WARRANTO

Sec. 1. Action by the government 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:

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

o (b) A public officer who does or suffers an act Which by provision of law Constitutes a ground for the forfeiture of his office

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o (c) An association which acts as a corporation within the Philippines Without being legally incorporated OR Without lawful authority so to act

Sec. 2. When Solicitor General or public prosecutor must commence the action.The Solicitor General or a public prosecutor

- When directed by the President of the Philippines OR- When upon complaint or otherwise

o He has good reason to believe that any case specified in the preceding section can be establish by proof

o MUST commence the action

Sec. 3. When Solicitor General or public officer may commence action with permission of court.The Solicitor General or a public officer

- MAY with 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

But in such case the officer bringing it - May first require an indemnity for the expenses and costs of the action- In an amount approved by and to be deposited in court- By the person at whose request and upon whose relation the same is brought

Sec. 4. When hearing had on application for permission to commence action.Upon application for permission to commence such an action in accordance with the next preceding sectionThe court

- Shall direct that notice be given to the respondent - So that he may be heard in opposition thereto

AND IF permission be grantedThe court

- Shall issue an order to that effect AND- Copies of which shall be served on all interested parties AND- The petition shall then be filed within the period ordered by the court

Sec. 5. When an individual may commence such 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

Sec. 6. Parties and contents of petition against usurpation.When the action is against a person for usurping a public office, position or franchiseThe petition

- Shall set forth the name of the person who claims to be entitled thereto, if any- With an averment of

o His right to the same ANDo That the respondent is unlawfully in possession thereof

All persons who claim to be entitled to the public office, position or franchise - May be made parties AND- Their respective right to such public office, position of franchise determined- In the same action

Sec. 7. Venue.An action under the preceding 6 sections

- Can be brought only in o SC o CA or

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o RTC exercising jurisdiction over the territorial area where the respondent or any of the respondent resides

BUT when the Solicitor General commences the actionIT

- May be brought in a RTC in the City of Manila- In the CA or- In the SC

Sec. 8. Period for pleadings and proceedings may be reduced; action given precedence.The court

- May REDUCE the period provided by these Rules- For filing of pleadings and for all other proceedings in the action- In order to secure the most expeditious determination of the matters involved therein- Consistent with the rights of the parties

Such action - May be given precedence- Over any other civil matter pending in court

Sec. 9. Judgment where usurpation found.When the respondent is found GUILTY of usurping, intruding into or unlawfully holding or exercising a public office, position or franchiseJudgment

- Shall be rendered that such respondent be OUSTED and altogether EXCLUDED therefrom AND

- That the petitioner or relator, as 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 of the parties to the action- As justice requires

Sec. 10. Rights of persons adjudged entitled to public office; delivery of books and papers; damages.IF judgment be rendered IN FAVOR of the person averred in the complaint to be entitled to the public officeHE may

- AFTER taking his 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 books and papers

o In the respondent’s custody or control o Appertaining to the office to which the judgment relates

IF the respondent refuses or neglects to deliver any book or paper pursuant to such demandHE

- May be punished for contempt- As having disobeyed a lawful order of he court

The person adjudged entitled to the office - May also bring action against respondent- To recover damages sustained by such person- By reason of the usurpation

Sec. 11. Limitations.Nothing contained in this Rule

- Shall be construed to authorize an action against a public officer or employee for his oustero UNLESS the same be commenced within ONE YEAR AFTER

The cause of such ouster OR The right of the petitioner to hold such office or position arose

- NOR to authorize an action for damages in accordance with the provisions of the next

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preceding sectiono UNLESS the same be commenced within ONE YEAR AFTER entry of the

judgment establishing the petitioner’s right to the office in question

Sec. 12. Judgment for costs.In an action brought in accordance with the provisions of this RuleThe court

- May render judgment for costs - Against either the petitioner, the relator, or the respondent, or the person/s claiming to be a

corporation OR- May apportion the costs, as justice requires

CASES

(1) Potot v. Bagno (82 Phil 679)

Acceptance of Incompatible Office is Abandonment of Previous Office; Quo Warranto Improper

- Petitioner’s acceptance of other public offices incompatible with judicial functions operate as an abandonment of the position to which he seeks reinstatement. Petitioner (judge) joined the police force as lieutenant from 1947-1948. In the same year, he was Assistant Provincial Warden.

o That petitioner was forced to seek or accept jobs in order to live would not alter the case even if we assume, for the sake of argument, that economic necessity was a valid plea. The government was not the only source of gainful employments that could – have tide him over while waiting, as he says, for reappointment to his old position. The truth is that for almost two years after liberation, before he accepted other government positions, he got position was without any permanent incumbent, he did not enter public service, and he did not raise a finger to claim his judicial post. It would seem that he lost all interest in the same until he changed his mind or found he had is dismissed with costs.

(2) Abaya v. Alvear (82 Phil 103)

Acceptance of Office under Abnormal Conditions of War NOT Abandonment of Previous Office (Citing Teves v. Sindong)

- In that case we held that because of the abnormal conditions obtaining in Negros Oriental by reason of the war the formation of new judicial circuits including Luzurriaga — first, the grouping of Luzurriaga and Bacong, and later the merger of the three towns of Luzurriaga, Bacong and Dauin, into a circuit — was a makeshift arrangement, a mere temporary expedient, far from being permanent in nature, but merely designed to meet and solve the exigencies of the administration of justice in those areas in the manner possible under said abnormal conditions;

o That the law and doctrines governing abandonment of an office may not and should not be strictly applied to cases occurring during the war, specially in those areas occupied partly or by the enemy.

- The acceptance by Teves of the ad interim appointment in of his old post of justice of the peace of Luzurriaga was NOT a waiver of his right and title to the old post; that he had the right to hold the same, not under the new ad interim appointment in December, 1945, but by virtue of his original appointment in 1914, for the reason that one cannot be properly appointed to the same post; that he is already holding under a valid appointment.

- A subsequent appointment to the post of justice of the peace extended to one who already had a right to it because of a previous pre-war appointment under which he had qualified and discharged his duties, may be regarded as a mere restitution or restoration of the position which belonged to him; and that the new appointment can add nothing to or diminish his right to the office conferred by his original appointment.

o In this case: The important thing is that he never intended to abandon his old post and all along during the Japanese occupation and even after liberation

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he continued in the judicial service and exercised and discharged the functions of the office of justice of the peace in the same place and area which he did before the war.

o And, we may also say that his appointment by President Osmena and later by President Roxas, to his old post of justice of the peace of Cervantes and Angaki though not confirmed by the Commission on Appointments, was unnecessary; that it did not and could not add anything to or diminish his right to the office conferred by his original appointment, but that said appointments may be regarded as a mere restitution of the office which belonged to him but which he failed to hold because of, and during the war.

(3) Teves v. Sindiong (81 Phil 658)

Abandonment Must Spring from Free Choice- Abandonment of office by reason of acceptance of another, in order to be effective, should

spring from and be accompanied by deliberation and freedom of choice, either to keep the old office or renounce it for another.

Abandonment in Abnormal Times- The law and the doctrines governing abandonment of office may not and should not be too

strictly applied to cases occurring during the war, especially in those areas occupied partly or entirely by the enemy

(4) Serafin v. Cruz (58 Phil 611)

Removal must be FOR CAUSE provided by law- In accordance with the authority cited above, the defendant-appellant has acquired a

vested right in the office and cannot be removed nor dismissed therefrom EXCEPT for any of the causes designated and in accordance with the proceedings established by law.

o The reinstatement of the dismissed official is not one of the causes designated by law for the removal therefrom of one who has been permanently appointed to substitute the former.

Quo Warranto Improper Against One with Vested Right to an Office- The extraordinary legal remedy of quo warranto does NOT lie against a duly and legally

appointed chief of municipal police who has duly qualified for and has entered upon the performance of his duties, in order to reinstate another who has been legally dismissed from the office in question.

(5) Lacson v. Romero (84 Phil 740)

3 Steps in Appointment to Government Post- The appointment to a government post like that of provincial fiscal to be complete involves

several steps. o First, comes the nomination by the President. o Then to make that nomination valid and permanent, the Commission on Appointments

has to confirm said nomination. o The last step is the acceptance thereof by the appointee by his assumption of office.

- The first two steps, nomination and confirmation, constitute a mere offer of a post. They are acts of the Executive and Legislative departments of the Government. But the last necessary step to make the appointment complete and effective rests solely with the appointee himself. He may or he may not accept the appointment or nomination. As held in the case of Borromeo vs. Mariano,"there is no Power in this country which can compel a man to accept an office."

o In this case: Since Lacson has declined to accept his appointment as provincial fiscal of Tarlac and no one can compel him to do so, then he continues as provincial fiscal of Negros Oriental and no vacancy in said office was created, unless Lacson had been lawfully removed as Such fiscal of Negros Oriental.

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Transfers as Removal from Office- To permit circumvention of the constitutional prohibition in question by allowing removal from

office without lawful cause, in the form or guise of transfers from one office to another, or from one province to another, without the consent of the transferee, would blast the hopes of these young civil service officials and career men and women, destroy their security and tenure of office and make for a subservient, discontented and inefficient civil service force that sways with every political wind that blows and plays up to whatever political party is in the saddle.

-(6) Acosta v. Flor (5 Phil 18)

Petitioner in Quo Warranto Must Show Right to the Office- NO individual can bring a civil action relating to the usurpation of a public office without

averring that he has a right to the same; and at any stage of the proceedings- IF it be shown that such individual has no such right, the action may be dismissed

because there is no legal ground upon which it may proceed when the fundamental basis of such action is destroyed as is the case here.

NO need to rule on right of defendant to office IF petitioner has NO Cause of Action: Failed to show Right to Office

- Quo Warranto presupposes that the plaintiff had a right to maintain his action upon the evidence submitted by him at the trial. It is impossible to prosecute a suit without a cause of action. Therefore, whenever before judgment it is conclusively proven that the plaintiff has no right to maintain the action since he has not the essential conditions required by law in order to bring and maintain such action, his complaint should be dismissed and it becomes UNNECESSARY to pass upon the right of the defendant who has a perfect right to the undisturbed possession of his office, unless action is brought by a person having a right to maintain the same under the law.

(7) Garcia v. Perez (99 SCRA 628)

Must show ENTITLEMENT to office – NOT mere preferential right- One who does NOT claim to be entitled to the office allegedly usurped or unlawfully

held or exercised by another, but who merely asserts a right to be appointed thereto, CANNOT question the latter’s title to the same by quo warranto.

o In other words, one whose claim is predicated solely upon a more or less remote possibility, that he may be the recipient of an appointment, has NO cause of action against the office holder.

Pendency of administrative case does NOT suspend running of prescriptive period- While it may be desirable that administrative remedies be first resorted to, no one is

compelled or bound to do so; and as said remedies neither are prerequisite to nor bar the institution of quo warranto proceedings: it follows that he who claims the right to hold a public office allegedly usurped by another and who desires to seek redress in the courts, should file the proper judicial action within the reglementary period. Public interest requires that the right of public office should be determined as speedily as practicable .

(8) Cruz v. Ramos (84 Phil 226)

Municipal Board Member NO cause of action for Quo Warranto when Board Seats Increased- The present petition for quo warranto is not authorized because the petitioners do

not claim to be entitled to the public office alleged to be unlawfully held or exercised by respondents. As a matter of fact, petitioners allege that they are duly elected members of the municipal board. They do not and cannot claim that respondents have supplanted them.

GR: Government as Proper Party; EXCEPT: Individual claims to be entitled to office usurped by another

- A public office or franchise is created or granted by law, and its usurpation or unlawful exercise is the concern primarily of the government. Hence, the government, as a rule, is the party called upon to bring the action for such usurpation or unlawful exercise. The only exception

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in which the law permits an individual to bring the action in his own name is when he claims to be entitled to the public office alleged to be usurped or unlawfully held or exercised by another.

(9) Calleja v. Panday 483 SCRA 680)

Quo Warranto under Rule 66 NOT cover cases of persons who usurp a position in a private corporation

- The allegations in the complaint for quo warranto that certain persons usurped the powers and functions of duly elected members, trustees and officers of the corporation make out a case for an INTRA-CORPORATE CONTROVERSY.

- Rule 66 is limited to actions of quo warranto against persons who usurp a public office, position or franchise; public officers who forfeit their office and associations which act as corporations without being legally incorporated.

- Actions of quo warranto against persons who usurp an office in a corporation fall under the jurisidiction of the SEC (NOW RTC).

RULE 67EXPROPRIATION

Sec. 1. The complaint.The right of eminent domain

- Shall be exercised by the filing of a verified complaint- Which shall state with certainty the right and the purpose of expropriation- Describe the real or personal property sought to be expropriated AND- Join as defendants all persons

o Owning or claiming to own or occupying any part thereof or interest therein- Showing as 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 ORIF 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 o Shall be made in the complaint

Sec. 2. Entry of plaintiff upon the depositing value with authorized government agency.Upon the filing of the complaint OR any time thereafter ANDAFTER due notice to the defendantThe plaintiff

- Shall have the right to take or enter upon the possession of the REAL property involved- IF he DEPOSITS with the authorized government depositary

o An amount equivalent to the assessed value of the propertyo For purposes of taxationo To be held by such bank o Subject to the orders of the court

Such deposit - Shall be in MONEY- UNLESS in lieu thereof the court authorizes

o The deposit of a certificate of deposit o Of a government bank of the Republic of the Philippineso Payable on demand to the authorized government depositary

IF PERSONAL property is involvedIts value

- Shall be provisionally ascertained AND

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The amount to be deposited - Shall be promptly fixed by the court

AFTER such deposit is madeThe court

- Shall order the sheriff or other proper officer- To forthwith place the plaintiff in possession of the property involved AND- Promptly submit a report thereof to the court with service of copies to the parties

Sec. 3. Defenses and objections.IF a defendant has NO objection or defense to the action OR the taking of the propertyHE

- May file and serve a notice of appearance AND a manifestation to the effect- Specifically designating or identifying the property in which he claims to be interested- Within the time stated in the summons

ThereafterHe

- Shall be entitled to notice of all proceedings affecting the same

IF a defendant has - Any objection to the filing of OR the allegations in the complaint OR- Any objection or defense to the taking of his property- HE

o Shall serve his ANSWER within the time stated in the summons

The answer - Shall specifically designate or identify the property which he claims to have an interest- State the nature and extent of the interest claimed AND- Adduce all his objections and defenses to the taking of his property

NO counterclaim, cross-claim, 3 rd party complaint - Shall be alleged or allowed in the answer or any subsequent pleading

A defendant - WAIVES all defenses and objections NOT so alleged - BUT the court

o In the interest of justiceo May permits AMENDMENTS to the answer o To be made NOT LATER than 10 days from the filing thereof

HOWEVER At the trial of the issue of just compensation

- Whether or not the defendant has previously appeared or answered- HE

o May present evidence as to the amount of the compensation to be paid for his property AND

o HE may share in the distribution of the award

Sec. 4. Order of expropriation.IF the objections to and the defenses against the right of the plaintiff to expropriate the property are OVERRULED ORWhen NO party appears to defends as required by this Rule The court

- May issue an order of expropriation- Declaring that the plaintiff has a lawful right to take the property sought to be

expropriated- For the public use or purpose described in the complaint- Upon payment of just compensation

o To be determined as of the date of the taking of the property OR the filing of the complaint

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o Whichever came FIRST

A final order sustaining the RIGHT TO EXPROPRIATE the property - May be appealed by any party aggrieved thereby

Such appeal however - Shall NOT prevent the court from determining the just compensation to be paid

AFTER the rendition of such an orderThe plaintiff

- Shall NOT be permitted to dismiss or discontinue the proceeding- EXCEPT on such terms as the court deems just and equitable

Sec. 5. Ascertainment of compensation.Upon the rendition of the order of expropriation The court

- Shall appoint NOT MORE than 3 competent and disinterested persons as COMMISSIONERS

- To ascertain and to report to the court the just compensation for the property sought to be taken

The order of APPOINTMENT - Shall designate the time and place of the first session of the hearing- To be held by the commissioners AND- Specify the time within which their report shall be submitted to the court

Copies of the order - Shall be served on the parties

OBJECTIONS to the appointment of ANY of the commissioners - Shall be filed with the court within 10 days from service AND- Shall be resolved within 30 days after all the commissioners shall have received

copies of the objections

Sec. 6. Proceedings by commissioners.Before entering upon the performance of heir dutiesThe commissioners

- Shall take and subscribe an OATH- That they will faithfully perform their duties as commissioners- Which oath shall be filed in court with the other proceedings in the case

Evidence - May be introduced by either party before the commissioners- Who are authorized to administer oaths on hearings before them AND- The commissioners shall

o UNLESS the parties consent to the contraryo AFTER due notice to the parties to attend

View and examine the property sought to be expropriated and its surroundings AND

May measure the sameo AFTER which either party may

By himself or counsel Argue the case

The commissioners - Shall assess the consequential damages to the property not taken AND- Deduct from such consequential damages the consequential benefits

o To be derived by the owner from the public use or purpose of the property taken o The operation of its franchise by the corporation ORo The carrying on of the business of the corporation or the person taking the property

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BUT in NO case shall - The consequential benefits assesses EXCEED the consequential damages assessed

OR- The owner be deprived of the actual value of his property so taken

Sec. 7. Report by commissioners and judgment thereupon.The court

- May order the commissioners to REPORTo When any particular portion of the real estate shall have been passed upon by them

AND- May render judgment upon such partial report AND- Direct the commissioners to proceed with their work as to subsequent portions of

the property sought to be expropriated AND- May from time to time deal with the property

The commissioners - Shall make a full and accurate report to the court of all their proceedings AND

Such proceedings - Shall NOT be effectual- UNTIL the court shall have accepted their report and rendered judgment in accordance

with their recommendations

EXCEPT as otherwise expressly ordered by the courtSuch report

- Shall be filed within 60 days from the date the commissioners were notified of their appointment

- Which time may be extended in the discretion of the court

Upon the filing of such reportThe COC

- Shall serve copies thereof on all interested parties- With notice that they are allowed 10 days within which to file objections to the finding of the

report IF they so desire

Sec. 8. Action upon commissioner’s report.Upon the expiration of the period of 10 days referred to in the preceding section ORBEFORE the expiration of such period BUT AFTER all the interested parties have filed their objections to the report or their statement of agreement therewithThe court may

- After hearing- Accept the report and render judgment in accordance therewith OR

FOR CAUSE SHOWNIT

- May recommit the commissioners for further report of facts OR- IT may set aside the report and appoint new commissioners OR- IT may accept the report in part or reject it in part AND- IT may make such order or render such judgment as shall secure

o To the plaintiff the property essential to the exercise of his right of expropriation ANDo To the defendant just compensation for the property so taken

Sec. 9. Uncertain ownership; conflicting claims.IF the ownership of the property taken is uncertain ORThere are conflicting claims to any part thereofThe court

- May order any sum/s awarded as compensation for the property- To be paid to the court for the benefit of the person adjudged in the same proceeding

to be entitled thereto

BUT the judgment - Shall require the payment the sum/s awarded to either the defendant or the court

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- BEFORE the plaintiff cano Enter upon the property ORo Retain it for the public use or purpose IF entry has already been made

Sec. 10. Rights of plaintiff after judgment and payment.UPON payment by the plaintiff to the defendant of compensation fixed by the judgment WITH legal interest thereon from the taking of the possession of the property ORAFTER tender to him of the amount so fixed AND payment of costsThe plaintiff shall have the RIGHT

- To enter upon the property so expropriated AND- To appropriate it for the public use of purpose defined in the judgment OR- To retain it should he have taken immediate possession thereof under the provisions of

Sec. 2 hereof

IF the defendant and his counsel ABSENT themselves from court OR DECLINE to receive the amount tenderedThe same

- Shall be ordered to be deposited in court AND- Such deposit

o Shall have the same effect as actual payment thereof o To the defendants OR the person ultimately adjudged entitled thereto

Sec. 11. Entry not delayed by appeal; effect of reversal.The right of the plaintiff

- To enter upon the property of the defendant and appropriate the same for public use or purpose

- Shall NOT be delayed by an appeal from the judgment

BUT IF the appellate court determines that the plaintiff has NO right of expropriationJudgment

- Shall be rendered ordering the RTC o To forthwith enforce the RESTORATION to the defendant of the possession of

the property ANDo To determine damages which the which the defendant sustained and may recover

by reason of the possession taken by the plaintiff

Sec. 12. Costs, by whom paid.The fees of the commissioners

- Shall be taxed as part of the costs of the proceedings

All costs- EXCEPT those of rival claimants litigating their claim- Shall be paid by the plaintiff - UNLESS an appeal is taken by the owner of the property AND judgment is affirmed

o In which event the costs of the appeal shall be paid by the owner

Sec. 13. Recording of judgment and its effect.The JUDGMENT entered in expropriation proceedings

- Shall state definitelyo By adequate descriptiono The particular property or interest therein expropriated ANDo The nature of the public use or purpose for which it is expropriated

When REAL estate is expropriatedA certified copy of such judgment

- Shall be recorded in the RD of the place in which the property is situated ANDIts effects

- Shall be to VEST in the plaintiff the title to the real estate so described for such public use or purpose

Sec. 14. Power of guardian in such proceedings.

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The guardian or guardian ad litem of a minor or of a person judicially declared to be incompetent

- May with the approval of the court first had- Do and perform on behalf of ward

o Any act, matter, or thing respecting the expropriation for public use or purpose of the property belonging to such minor or person judicially declared to be an incompetent could do in such proceedings IF he were of age or competent

CASES

(1) Barangay San Roque v. Heirs of Pastor (334 SCRA 127)

Test to determine whether an action is capable or incapable of pecuniary estimation- IF it is primarily for the recovery of a sum of money, the claim is considered capable of

pecuniary estimation, and whether jurisdiction is in the MTC or CFI would depend on the amount of the claim.

- However, where the basic issue is something OTHER the right to recover a sum of money, or where the money claim is purely incidental to, or a consequence of, the principal relief sought, like in suits to have the defendant perform his part of the contract (specific performance) and in actions for support, or for annulment of a judgment or to foreclose a mortgage, this Court has considered such actions as cases where the subject of the litigation may not be estimated in terms of money, and are cognizable exclusively by CFI.

Expropriation as an action INCAPABLE of pecuniary estimation; Jurisdiction with RTC- The primary consideration in an expropriation suit is whether the government or any

of its instrumentalities has complied with the requisites for the taking of private property. Hence, the courts determine the authority of the government entity, the necessity of the expropriation, and the observance of due process. In the main, the subject of an expropriation suit is the government's exercise of eminent domain, a matter that is incapable of pecuniary estimation.

- True, the value of the property to be expropriated is estimated in monetary terms, for the court is duty-bound to determine the just compensation for it. This, however, is merely incidental to the expropriation suit. Indeed, that amount is determined only after the court is satisfied with the propriety of the expropriation.

2 Phases in Expropriation Proceedings- The first is concerned with the determination of the authority of the plaintiff to

exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit.

o It ends with an order, if not of dismissal of the action, "of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the filing of the complaint."

o An order of dismissal, if this be ordained, would be a final one, of course, since it finally disposes of the action and leaves nothing more to be done by the Court on the merits. So, too, would an order of condemnation be a final one, for thereafter as the Rules expressly state, in the proceedings before the Trial Court, "no objection to the exercise of the right of condemnation (or the propriety thereof) shall be filed or heard."

- The second phase of the eminent domain action is concerned with the determination by the court of "the just compensation for the property sought to be taken. This is done by the Court with the assistance of not more than 3 commissioners. The order fixing the just compensation on the basis of the evidence before, and findings of, the commissioners would be final, too. It would finally dispose of the second stage of the suit, and leave nothing more to be done by the Court regarding the issue.

(2) National Power Corporation v. Jocson (206 SCRA 520)

Determination of Just Compensation is a JUDICIAL FUNCTION

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- PD 42 effectively removes the discretion of the court in determining the provisional value. What is to be deposited is an amount equivalent to the assessed value for taxation purposes. No hearing is required for the purposes. All that is needed is notice to the owner of the property sought to be condemned.

- The determination of just compensation in eminent domain cases is a judicial function. Accordingly we declared such laws as unconstitutional and void for being, inter alia, impermissible encroachment on judicial prerogatives which tends to render the Court inutile in a matter which, under the Constitution, is reserved to it for final determination, the method of ascertaining just compensation.

(3) City of Manila v. Arellano Law Colleges (85 Phil 663)

Expropriation for Resale: Must be for PUBLIC INTEREST- It has been truly said that the assertion of the right on the part of the legislature to take the

property of one citizen and transfer it to another, even for a full compensation, when the public interest is not promoted thereby, is claiming a despotic power, and one inconsistent with every just principle and fundamental maxim of a free government.

Expropriation for Resale: Markers of Promotion of Public Interest; NO Public Use – Oppressive Expropriation

- In a broad sense, expropriation of large estates, trusts in perpetuity, and land that embraces a whole town, or large section of a town or city, bears direct relation to the public welfare.

o The size of the land expropriatedo The large number of people benefited AND o The extent of social and economic reform secured by the condemnation

Clothes the expropriation with public interest and public use. o The expropriation in such cases tends to abolish economic slavery, feudalistic

practices, endless conflicts between landlords and tenants, and other evils inimical to community prosperity and contentment and public peace and order.

- The condemnation of a small property in behalf of 10, 20 or 50 persons and their families does NOT insure to the benefit of the public to a degree sufficient to give the use public character. The expropriation proceedings at bar have been instituted for the economic relief of a few families devoid of any consideration of public peace and order, or other public advantage. What is proposed to be done is to take plaintiff's property, which for all we know she acquired by sweat and sacrifices for her and her family's security, and sell it at cost to a few lessees who refuse to pay the stipulated rent or leave the premises.

o In this case: It suffices to say for the purpose of this decision that the case under consideration is far wanting in those elements which make for public convenience or public use. It is patterned upon an ideology far removed from the majority of the citizens of this country. If upheld, this case would open the gates to more oppressive

expropriations.

Public UseAlthough courts are not in agreement as to the tests to applied in determining whether the use is public or not, some go so far in the direction of a liberal construction as to hold that public use is synonymous with public benefit, public utility, or public advantage, and to authorize the exercise of the power of eminent domain to promote such public benefit, etc., especially where the interest involved are of considerable magnitude.

o In some instances, slumsites have been acquired by condemnation. The highest court of New York State has ruled that slum clearance and erection of houses for low-income families were public purpose for which New York City Housing authorities could exercise the power of condemnation. and this decision was followed by similar ones in other states.

o The underlying reasons for these decisions are that the destruction of congested areas and unsanitary dwellings diminished the potentialities of epidemics, crime and waste, prevents the spread of crime and diseases to unaffected areas, enhances the physical and moral value of the surrounding communities, and promote the safety and welfare of the public in general. But it will be noted that in all these cases and of

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similar nature extensive areas were involved and numerous people and the general public benefited by the action taken.

(4) Visayan Refining Co. v. Camus and Paredes (40 Phil 550)

Eminent Domain Inherent in Sovereignty- The power of eminent domain is inseparable from sovereignty, being essential to the existence

of the State and inherent in government even in its most primitive forms. No law, therefore, is even necessary to confer this right upon sovereignty or upon any government exercising sovereign or quasi-sovereign powers.

Military and Aviation Purposes as Public Use- The use of land by the Government for military and aviation purposes is a public use within the

meaning of the provisions of law authorizing the Government of the Philippines to acquire real estate for public use by the exercise of the right of eminent domain.

Deposit for Provisional Possession by Government- When provisional possession is given to the Government, the owner of the land is fully

protected from any loss that might result from the temporary occupation of the land by the Government in the event that the Legislature should finally fail to appropriate any additional amount necessary to satisfy the award of the court; for such preliminary deposit serves the double purpose of prepayment upon the value of the property, if finally expropriated, and as indemnity against damage in the eventuality that the proceeding should fail of consummation.

-(5) Municipality of Binan v. Garcia (180 SCRA 576)

Expropriation Subject to Multiple Appeals- The Court therefore holds that in actions of eminent domain, as in actions for partition, since

NO less than 2 appeals are allowed by law, the period for appeal from an order of condemnation is 30 days counted from the notice of the order and NOT the ordinary period of 15 days prescribed for actions in general, conformably with the provisions of Sec. 39 of BP 129, in relation to paragraph 19(b) of the Implementing Rules, to the effect that in “appeals in special proceedings in accordance with Rule 109 and other cases wherein multiple appeals are allowed, the period of appeal shall be 30 days, a record of appeal being required.”

(6) Provincial Government of Rizal v. Caro de Araullo (58 Phil 308)

Just Compensation: Value at time of Appropriation- In other words, the value of the property was enhanced by the purpose for which it was taken.

In our opinion the owners of the land have no right to recover damages for this unearned increment resulting from the construction of the public improvement for which the land was taken. To permit them to do so would be to allow them to recover more than the value of the land at the time when it was taken, which is the true measure of the damages, or just compensation, and would discourage the construction of important public improvements.

(7) Republic v. Vda. De Castellvi (58 SCRA 336)

Elements of Taking- A number of circumstances must be present in the “taking” of property for the purposes of

eminent domain:o (1) The expropriator must enter a private propertyo (2) The entrance into private property must be for more than a momentary periodo (3) The entry into the property should be under warrant or color of legal authorityo (4) The property must be devoted to a public use or otherwise informally appropriated

or injuriously affectedo (5) The utilization of the property for public use must be in such a way as to oust the

owner and deprive him of all beneficial enjoyment of the property

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(8) Export Processing Zone Authority v. Dulay (149 SCRA 305)

Determination of Just Compensation as a Judicial Prerogative- PD 76, 464, 794, 1533 essentially provide that just compensation shall be equivalent to the

market value declared by the owner or the assessor whichever is lower.- These decrees are unconstitutional and void and constitute impermissible encroachment on

judicial prerogatives. Thus although the court technically would still have the power to determine the just compensation for the property, following the applicable decree, its task would be relegated to simply stating the lower value of the property as declared by the owner or assessor.

(9) City of Manila v. Corrales (32 Phil 85)

Market Value- When we speak of the market value of property taken under the power of eminent domain, we

mean the value which purchasers generally would pay for it. We do not mean what a purchaser would pay who had no particular object in view in purchasing, and no definite plan as to the use to which to put it. The owner has a right to its value for the use for which it would bring the most in the market.

- The owner should NOT be charged with the expense necessary to put the property so taken in the condition in which the public desires to use it.

Determination of Just Compensation- It must not be overlooked that there is a difference between the actual rental value of the

property and the price for which it is rented at any particular time. What property will rent for is a variable quantity. The amount which the tenant will pay may depend upon his particular necessities at the time.  

- In determining the value of land appropriated for public purposes, the same considerations are to be regarded as in a sale of property between private parties. The inquiry, in such cases, must be what is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted, that is to say, What is it worth from its availability for valuable uses?

(10) Benguet Consolidated Inc. v. Republic (143 SCRA 466)

Eminent Domain covers all rights attached to land expropriated- The power of eminent domain refers to the power of government to take private property for

public use.  If the mineral claims are public, there would be no need to expropriate them.  The mineral claims of the petitioner are not being transferred to another mining company or to a public entity interested in the claims as such.  The land where the mineral claims were located is needed for the Philippine Military Academy, a public use completely unrelated to mining.   The fact that the location of a mining claim has been perfected does not bar the Government's exercise of its power of eminent domain.   The right of eminent domain covers all forms of private property, tangible or intangible, and includes rights which are attached to land.

RULE 68FORECLOSURE OF MORTGAGE

Sec. 1. Complaint in anction for foreclosure.In an action for foreclosure of mortgage or other encumbrance upon REAL estateThe complaint shall set forth

- The date and due execution of the mortgage- Its assignments, IF any- The names and residences of the mortgagor and mortgagee

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- A description of the mortgaged property- A statement of the date of the note or other documentary evidence of the obligation

secured by the mortgage- The amount claimed to be unpaid thereon AND- The names and residences of all persons having or claiming an interest in the

property subordinate in right to that of the holder of the mortgageo All of whom shall made DEFENDANTS to the action

Sec. 2. Judgment on foreclosure for payment or sale.IF upon trial in such action the court shall find the facts set forth in the complaint to be trueIT

- Shall ascertain the AMOUNT DUE to the plaintiff upon the mortgage debt or obligationo Including interest and other charges as approved by the court AND costs AND

- Shall render judgment for the sum so found due AND- Order the same be paid to the court or to the judgment obligee

o Within a period of NOT LESS THAN 90 days NOR MORE THAN 120 days from the entry of judgment AND

o That in default of such payment the property shall be SOLD at public auction to satisfy the judgment

Sec. 3. Sale of mortgaged property; effect.When the defendant

- AFTER being directed to do so as provided in the next preceding section- Fails to pay the amount of the judgment within the period specified therein- The court

o Upon motion o Shall order the property to be sold in the manner and under the provisions of Rule 39

and other regulations governing sales of real estate under execution

Such sale - Shall NOT affect the rights of persons holding PRIOR encumbrances upon the property

or part thereof ANDWhen CONFIRMED by an order of the court- Also upon motion- IT shall operate to divest the rights in property of all the parties to the action AND- To vest their rights in the purchaser

o Subject to such rights of redemption as may be allowed by law

Upon finality of the order of confirmation ORUpon the expiration of the period of redemption when allowed by lawThe purchaser at the auction sale OR last redemptioner

- IF any - Shall be entitled to the possession of the property- UNLESS a 3 rd party is actually holding the same adversely to the judgment obligor

The said purchaser OR last redemptioner - May secure a writ of possession - Upon motion- From the court which ordered the foreclosure

Sec. 4. Disposition of proceeds of sale.The amount realized from the foreclosure sale of the mortgaged property shall

- AFTER deducting the costs of the sale- Be paid to the person foreclosing the mortgage AND

When there shall be any balance or residue AFTER paying off the mortgage debt dueThe same

- Shall be paid to the junior encumbrancers- In the order of their priority- To be ascertained by the court

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OR IF there be NO such encumbrancers ORThe balance or residue after payment to them

- THEN to the mortgager or his duly authorized agent or to the person entitled to it

Sec. 5. How sale to proceed in case the debt is not all due.IF the debt for which the mortgage or encumbrance was held is NOT ALL DUE

- As provided in the judgment- As soon as a sufficient portion of the property has been sold to pay the total amount and the

costs due- The sale

o Shall terminate AND afterwards as often as more becomes due for principal or interest and other valid chargesThe court

- May on motion- Order more to be sold

BUT IF the property CANNOT be sold in portions WITHOUT prejudice to the partiesThe whole

- Shall be ordered to be sold in the first instance AND- The entire debts and costs shall be paid

o IF the proceeds of the sale be sufficient thereforeo There being a rebate of interests where such rebate is proper

Sec. 6. Deficiency judgment.IF upon the sale of any REAL property s provided in the next preceding sectionThere being a balance due to the plaintiff AFTER applying the proceeds of the saleThe court

- Upon motion- Shall render judgment against the defendant for any such balance - For which by the record of the case, he may be held personally liable to the plaintiff- Upon which execution may issue immediately - IF the balance is all due at the time of the rendition of the judgment

OTHERWISE the plaintiff - Shall be entitled to execution - At such time as the balance remaining becomes due under the terms of the original

contract- Which time shall be stated in the judgment

Sec. 7. Registration.A certified copy of the final order of the court confirming the sale

- Shall be registered in the RD

IF NO right of redemption exists- The certificate of title in the name of the mortgagor shall be cancelled AND- A NEW one issued in the name of the purchaser

Where a right of redemption exists- The certificate of title in the name of the mortgagor shall NOT be cancelled - BUT the certificate of sale AND the order confirming the sale

o Shall be registered ANDo A brief memorandum thereof made by the RD o Upon the certificate of title

IF the property is NOT redeemedThe FINAL deed of sale

- Executed by the sheriff in favor of the purchaser at the foreclosure sale- Shall be registered with the RD- Whereupon the certificate of title of the mortgagor shall be cancelled AND- A new one issued in the name of the purchaser

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Sec. 8. Applicability of other provisions.The provisions of Sec. 31, 32, and 34 of Rule 39

- Shall be applicable to the judicial foreclosure of real estate mortgages under this Rule- Insofar as the former are not inconsistent with or may serve or supplement the provisions of

the latter

CASES

(1) Seno v. Pestolante (103 Phil 414)

Jurisdiction in Judicial Foreclosure of Chattel Mortgage: Value of Chattel NOT Debt Secured- Although the purpose of the action is to recover an amount plus interest which comes within

the jurisdiction of the Justice of Peace Court, yet when said action involves foreclosure of chattel mortgage covering personal properties valued at more than P2,000, the action should be instituted before the CFI.

(2) The Good Development Corporation v. Butuan (73 SCRA 189)

Jurisdiction in Judicial Foreclosure of Chattel Mortgage: Value of Chattel NOT Debt Secured- Thus, even if the value of the loan is within the jurisdiction of the Justice of Peace

but the value of the chattel used to secure the loan is within the jurisdictional amount of the CFI, jurisdiction lies with the CFI.

- When the action is for collection of money for P1,520 but there is an alternative prayer for foreclosure of chattel mortgage in the sum of P15,350, jurisdiction over the action lies with the CFI.

(3) Limpin v. IAC (166 SCRA 87)

Right of Redemption; NO Right of Redemption in Judicial Foreclosure EXCEPT IF Mortgagee is a Bank

- The right of redemption in relation to a mortgage- understood in the sense of a prerogative to re-acquire mortgaged property after registration of the foreclosure sale- exists only in the case of the extrajudicial foreclosure of the mortgage. No such right is recognized in a judicial foreclosure except only where the mortgagee is the Philippine National Bank or a bank or banking institution.

o Where a mortgage is foreclosed extra-judicially, Act 3135 grants to the mortgagor the right of redemption within 1 year from the registration of the sheriffs certificate of foreclosure sale.

o Where the foreclosure is judicially effected, however, NO equivalent right of redemption exists. The law declares that a judicial foreclosure sale, "when confirmed by an order of the court, ... shall operate to divest the rights of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law.

Such rights exceptionally "allowed by law" are those granted by the charter of the Philippine National Bank (Acts No. 2747 and 2938), and the General Banking Act (R.A. 337). These laws confer on the mortgagor, his successors in interest or any judgment creditor of the mortgagor, the right to redeem the property sold on foreclosure- after confirmation by the court of the foreclosure sale -which right may be exercised within a period of one 1 year, counted from the date of registration of the certificate of sale in the Registry of Property.

Equity of Redemption; Exercised BEFORE Confirmation of Sale- NO such right of redemption exists in case of judicial foreclosure of a mortgage if the

mortgagee is not the PNB or a bank or banking institution. - In such a case, the foreclosure sale, "when confirmed by an order of the court. ... shall operate

to divest the rights of all the parties to the action and to vest their rights in the purchaser."

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There then exists only what is known as the equity of redemption . This is simply the right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the secured debt within the 90-day period after the judgment becomes final, in accordance with Rule 68, or even after the foreclosure sale but prior to its confirmation.

- This is the mortgagor's equity (not right) of redemption which, may be exercised by him even beyond the 90-day period "from the date of service of the order, and even after the foreclosure sale itself, provided it be BEFORE the order of confirmation of the sale. After such order of confirmation, no redemption can be effected any longer.

Unforeclosed Equity of Redemption – when junior lienholders are NOT joined in the foreclosure action

- Junior lienholders have own equity of redemption: o It is this same equity of redemption that is conferred by law on the mortgagor's

successors-in-interest, or third persons acquiring rights over the mortgaged property subsequent, and therefore subordinate, to the mortgagee's lien.

o If these subsequent or junior lienholders be not joined in the foreclosure action, the judgment in the mortgagor's favor is ineffective as to them.

o In that case, they retain what is known as the "unforeclosed equity of redemption," and a separate foreclosure proceeding should be brought to require them to redeem from the first mortgagee, or the party acquiring title to the mortgaged property at the foreclosure sale, within 90 days, under penalty of losing that prerogative to redeem.

(4) Quimson v. PNB (36 SCRA 26)

Judicial Foreclosure when Mortgagee is a Bank (PNB)- PERIOD of redemption:

o ONE year from registration of the Deed of Sale NOT from the date of confirmation of sale

- AMOUNT to be paid in order to redeem: o Amount fixed by the court in the order of executiono With interest thereon at the rate specified in the mortgage ANDo All costs and other judicial expenses incurred by the bank by reason of the

execution and for the custody of said property

Actual Notice Irrelevant- When it comes to the period of redemption of registered real estate sold on execution, whether

foreclosure proceedings or in ordinary cases, actual notice of the sale by the judgment debtor or redemptioner is IMMATERIAL, the period must always be computed from the date of registration of he corresponding auction sale.

(5) Ramos v. Manalac and Lopez (89 Phil 270)

Issuance of Writ of Possession as a Necessary Consequence of Foreclosure- The general rule is that after a sale has been made under a decree in a foreclosure suit, the

court has the power to give possession to the purchaser, and the latter will not be driven to an action at law to obtain possession. The power of the court to issue a process and place the purchaser in possession, is said to rest upon the ground that it has power to enforce its own decrees and thus avoid circuitous action and vexatious litigation.

- In a foreclosure suit, where no third person not a party thereto intervenes and the debtor continues in possession of the real property mortgaged, a writ of possession is a necessary remedy to put an end to the litigation, inasmuch as the Rules provides that the confirmation of the sale by judicial decree operates to divest all the parties to the action of their respective rights and vests them in the purchaser. According to this legal provision, it is the duty of the competent court to issue a writ so that the purchaser may be placed in the possession of the property which he purchased at the public auction sale and become his by virtue of the final decree confirming the sale.

- A court of equity, having obtained jurisdiction in action for the foreclosure of the mortgage,

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and having decreed a sale of the premises, RETAINS its jurisdiction and has authority to put the purchaser in possession of the property, without compelling him to resort to an action of law.

(6) Grimalt v. Velasquez and Sy Quia (36 Phil 936)

Notice and Hearing Necessary for Confirmation of Sale- In order that a foreclosure sale may be validly confirmed by the court, it is necessary that a

hearing be given the interested parties at which they may have an opportunity to show cause why the sale should not be confirmed; that a failure to give notice is good cause for setting aside the sale.

(7) Sy v. CA (172 SCRA 125)

Rules on Foreclosure by Banks Applies to Credit Institutions- It must be emphasized that the above section is applicable not only to "banks and banking

institutions," but also to "credit institutions." And, as certified by the Central Bank SIHI is a credit institution, i.e. financial intermediary engaged in quasi-banking functions within the purview of Section 78, it being an entity authorized to engage in the lending of funds or purchasing of receivables or other obligations with funds obtained from the public and, to lend, invest or place funds deposited with them, acquired by them or otherwise coursed through them, either for their own account or for the account of others.

Amount to be Paid in Order to Redeem Extrajudicially when Mortgagee is a Bank/Credit Institution

- The General Banking Act partakes of the nature of an amendment to Act No. 3135 insofar as the redemption price is concerned, when the mortgagee is a bank or banking or credit institution,

o Section 6 of Act No. 3135 being, in this respect, inconsistent with Section 78 of the General Banking Act.

o Although the foreclosure and sale of the subject property was done by SIHI pursuant to Act No. 3135 (whereby entities like SIHI are authorized to extrajudicially foreclose and sell mortgaged properties only under a special power inserted in or annexed to the real estate mortgage contract, and interested parties, like petitioner herein, are given one year from the date of sale within which to redeem the foreclosed properties), Section 78 of the General Banking Act, provides the amount at which the subject property is redeemable from SIHI, which is, in this case, the amount due under the mortgage deed, or the outstanding obligation of the debtor plus interest and expenses.

(8) Tolentino v. CA (106 SCRA 513)

Right of Redemption as an Absolute Privilege- The right of redemption is not an obligation but an absolute privilege. A bona fide tender of

redemption price and formal offer to redeem is NOT essential where the redemption is being exercised by way of judicial action within the period of redemption. The formal offer to redeem, accompanied by a bona fide tender of redemption price is only essential when to preserve the right to redeem for future enforcement even beyond such period of redemption.

- A redemption is not rendered invalid by the fact that the sheriff accepted check rather than cash. The exercise of this right being optional, no importance can be attached to the fact that a stop-payment order was being issued against the check.

(9) Ponce de Leon v. RFC (36 SCRA 289)

Attempt to Redeem as Implied Admission of Validity of Mortgage and Sale

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- Said attempts to redeem the property constitute an implied admission of the validity of its sale – and hence, of its mortgage to the RFC.

(10) Sps. Arquiza v. CA (459 SCRA 753)

Motion for Writ of Possession- An ordinary action to acquire possession in favor of the purchaser at an extrajudicial

foreclosure of real property is not necessary. There is no law in this jurisdiction whereby the purchaser at a sheriff’s sale of real property is obliged to bring a separate and independent suit for possession after the one-year period for redemption has expired and after he has obtained the sheriff’s final certificate of sale. The basis of this right to possession is the purchaser’s ownership of the property. The mere filing of an ex parte motion for the issuance of the writ of possession would suffice, and no bond is required.

Writ of Possession as a Matter of Right- Well established is the rule that after the consolidation of title in the buyer’s name for

failure of the mortgagor to redeem, the writ of possession becomes a matter of right .   Its issuance to a purchaser in an extrajudicial foreclosure is merely a ministerial function. The issuance of the writ of possession being a ministerial function, and summary in nature, it cannot be said to be a judgment on the merits, but simply an incident in the transfer of title. Hence, a separate case for annulment of mortgage and foreclosure sale cannot be barred by litis pendentia or res judicata.

(11) United Overseas Bank v. Rosemoore Mining and Development Corp. (518 SCRA 123)

Venue of Real Actions: 1 Mortgage Contract; Several Parcels of Land- The venue of the action for the nullification of the foreclosure sale is properly laid with the

Malolos RTC although two of the properties together with the Bulacan properties are situated in Nueva Ecija. Following the above-quoted provision of the Rules of Court, the venue of real actions affecting properties found in different provinces

- Venue is determined by the singularity or plurality of the transactions involving said parcels of land.  Where said parcels are the object of one and the same transaction, the venue is in the court of any of the provinces wherein a parcel of land is situated.

RULE 69PARTITION

Sec. 1. Complaint in action for partition of real estate.A person having a right to COMPEL the partition of real estate

- May do so as provided in this Rule- Setting forth in his complaint

o The nature and extent of his title ANDAn adequate description of the real estate which partition is demanded AND

- Joining as defendants all other persons interested in the property

Sec. 2. Order for partition, and partition by agreement thereunder.IF after trial the court finds that the plaintiff HAS a right theretoIT

- Shall order the partition of the real estate- Among ALL the parties in interest

Thereupon The parties may

- IF they are able to agree

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- Make a partition among themselves by proper instruments of conveyance ANDThe court

- Shall CONFIRM the partition so agreed upon by all the parties AND- Such partition

o Together with the order of the court confirming the sameo Shall be recorded in the RD of the place in which the property is situated

A final order decreeing partition and accounting - May be appealed by any party aggrieved thereby

Sec. 3. Commissioners to make partition when parties fail to agree.IF the parties are unable to agree upon the partitionThe court

- Shall appoint NOT MORE THAN 3 competent and disinterested persons as commissioners- To make the partition

o Commanding them to set off to the plaintiff and to each party in interesto Such part and proportion of the property as the court shall direct

Sec. 4. Oath and duties of commissioners.BEFORE making such partitionThe commissioners

- Shall take and subscribe an oath that they will faithfully perform their duties as commissioners

- Which oath shall be filed with the court with other proceedings in the case

In making the partitionThe commissioners

- Shall view and examine the real estate o AFTER due notice to the parties to attend at such view and examination AND

- Shall hear the parties o As to their preference in the portion of the property to be set apart to them ANDo The comparative value thereof AND

- Shall set apart the same to the parties in lots or parcels as will be most advantageous and equitable

o Having due regard to the improvements, situation and quality of the different parts thereof

Sec. 5. Assignment or sale of real estate by commissioners.When it is made to appear to the commissioners that the real estate or a portion thereof CANNOT be divided WITHOUT prejudice to the interests of the partiesThe court

- May order it ASSIGNED to one of the parties willing to take the same- PROVIDED he pays to the other parties such amounts as the commissioners deem

equitableo UNLESS one of the interested parties asks that the property be sold instead of being so

assignedo In which case the court

Shall order the commissioners to SELL the real estate at a PUBLIC SALE Under such conditions and within such time as the court may determine

Sec. 6. Report of commissioners; proceedings not binding until confirmed.The commissioners

- Shall make a full and accurate report to the court ofo All their proceedings as to the partition ORo The assignment of real estate to one of the parties ORo The sale of the same

Upon the filing of such report The COC

- Shall serve copies thereof on all the interested parties

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- With notice that they are allowed 10 days within which to file their objections to the findings of the report, if they so desire

NO proceeding had before or conducted by the commissioners - Shall pass title to the property or bind the parties- UNTIL the court shall have accepted the report of the commissioners AND rendered

judgment thereon

Sec. 7. Action of the court upon commissioner’s report.Upon the expiration of the period of 10 days referred to in the preceding section ORBEFORE the expiration of such period BUT AFTER all the interested parties have filed their objections to the report or their statement of agreement therewithThe court may

- After hearing- Accept the report and render judgment in accordance therewith OR

FOR CAUSE SHOWNIT

- May recommit the commissioners for further report of facts OR- IT may set aside the report and appoint new commissioners OR- IT may accept the report in part or reject it in part AND- IT may make such order or render such judgment as shall effectuate

o A fair and just partition of the real estate ORo Of its value, if assigned or sold as above provided between the several owners thereof

Sec. 8. Accounting for rent and profits in action for partition.In an action for partition in accordance with this RuleA party

- Shall recover from another his JUST SHARE of rents and profits - Received by such other party from the real estate in question AND

Judgment - Shall include an allowance for such rents and profits

Sec. 9. Power of guardian in such proceedings.The guardian or guardian ad litem of a minor or of a person judicially declared to be incompetent

- May with the approval of the court first had- Do and perform on behalf of ward

o Any act, matter, or thing respecting the expropriation for public use or purpose of the property belonging to such minor or person judicially declared to be an incompetent could do in such proceedings IF he were of age or competent

Sec. 10. Costs and expenses to be taxed and collected.The court

- Shall equitably tax and apportion between and among the parties the costs and expenses which accrue in the action

- Including the compensation of the commissionerso Having regard to the interests of the parties ANDo Execution may issue therefor as on other cases

Sec. 11. The judgment and its effect; copy to be recorded in the registry of deeds.IF ACTUAL PARTITION of property is madeThe judgment shall state definitely

- By metes and bounds and adequate description- The portion of the real estate assigned to each party AND

The effect of such judgment - Shall be to vest in each part to the action - In severalty - The portion of the real estate assigned to him

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IF the whole property is ASSIGNED to one of the parties upon his paying to the others the sum/s ordered by the courtThe judgment shall state

- The fact of such payment AND- Of the assignment of real estate to the party making the payment AND

The effect of such judgment - Shall be to vest in the party making the payment- The whole of the real estate- FREE FROM any interest on the part of the other parties to the action

IF the property is SOLD AND the sale is CONFIRMED by the courtThe judgment shall state

- The name of the purchaser/s AND- A definite description of the parcels of real estate sold to each purchaser AND

The effect of such judgment - Shall be to vest the real estate in the purchaser/s making the payment/s- FREE FROM the claims of any of the parties to the action

A certified copy of the judgment - Shall in either case be recorded in the RD of the place in which the real estate is situated

AND- The expenses of such recording

o Shall be taxed as part of the costs of the action

Sec. 12. Neither paramount rights nor amicable partition affected by this Rule.Nothing in this Rule

- Shall be construed so as to prejudice, defeat, or destroy o The right or title of any person claiming the real estate involved

By title under any other person OR By title paramount to the title of the parties among whom partition has

been made - NOR so as to restrict or prevent persons holding the real estate jointly or in common

o From making An amicable partition thereof by agreement AND Suitable instruments of conveyance without recourse to an action

Sec. 13. Partition of personal property.The provisions of this Rule

- Shall apply to partitions of estateso Composed to personal property ORo Of both real and personal propertyo In so far as they same may be applicable

CASES

(1) Russel v. Vestil (304 SCRA 738)

Action for Declaration of Nullity of Declaration of Heirs and Confirmation of Oral Partition is an action Incapable of Pecuniary Estimation; Jurisdiction with RTC

- The main purpose of petitioners in filing the complaint is to declare null and void the document in which private respondents declared themselves as the only heirs of the late spouses Tautho and divided his property among themselves to the exclusion of petitioners who also claim to be legal heirs and entitled to the property. While the complaint also prays for the partition of the property, this is just incidental to the main action, which is the declaration of nullity of the document above-described.

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Actions Incapable of Pecuniary Estimation- Specific performance- Support- Foreclosure of mortgage or annulment of judgment- Actions questioning the validity of a mortgage- Annulment a deed of sale or conveyance and to recover the price paid - Rescission(2) Ruguian v. Ruguian (9 Phil 527)

Joinder of all co-owners necessary- An action for partition of an undivided interest in land CANNOT be maintained

UNLESS ALL the co-owners are made parties to the action.

(3) Miranda v. CA (71 SCRA 296)

Judgments for Recovery and Accounting as Final and Appealable- Judgments for recovery of property with accounting as final judgments which are duly

appealable (and would therefore become final and executory if not appealed within the reglementary period)

- with the accounting as a mere incident of the judgment to be rendered during the course of the appeal or to be implemented at the execution stage upon final affirmance on appeal of the judgment (as in Court of Industrial Relations unfair labor practice cases ordering reinstatement of the worker with accounting, computation and payment of his backwages less earnings elsewhere during his lay-off)

Judgment for Accounting NOT stayed by Appeal- Unless otherwise ordered by the court, a judgment or order directing an accounting

in an action, shall NOT be stayed after its rendition and before an appeal is taken or during the pendency of an appeal.

- Thus, if the judgment directing an accounting is upheld on appeal, there would be no time lost and the accounting as rendered could be passed upon by the trial court at the stage of execution of judgment; and if the judgment were reversed on appeal, reimbursement of the actual expenses incurred by the successful appellant in rendering the accounting could be awarded.

Judgment for Accounting Appealable- The judgment "directing an accounting " is appealable , regardless of whether the

accounting is the principal relief sought or a mere incident or consequence of the judgment which grants recovery and delivery of absconded properties as the principal relief and expressly provides that "a judgment or order directing an accounting in an action, shall not be stayed after its rendition and before an appeal is taken or during the pendency of an appeal".

(4) Municipality of Binan v. Garcia (180 SCRA 576)

2 Phases in Partition- The first phase of a partition and/or accounting suit is taken up with the determination of

whether or not a co-ownership in fact exists, and a partition is proper (i.e., not otherwise legally prescribed) and may be made by voluntary agreement of all the parties interested in the property.

o This phase may end with a declaration that plaintiff is not entitled to have a partition either because a co-ownership does not exist, or partition is legally prohibited.

o It may end, on the other hand, with an adjudgment that a co-ownership does in truth exist, partition is proper in the premises and an accounting of rents and profits received by the defendant from the real estate in question is in order.

In the latter case, "the parties may, ff they are able to agree, make partition among themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed upon. In either case i.e. either the action is dismissed or partition and/or accounting is decreed the order is a final one, and may be appealed by any party aggrieved thereby.

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- The second phase commences when it appears that "the parties are unable to agree upon the partition" directed by the court. In that event partition shall be done for the parties by the Court with the assistance of not more than three (3) commissioners. This second stage may well also deal with the rendition of the accounting itself and its approval by the Court after the parties have been accorded opportunity to be heard thereon, and an award for the recovery by the party or parties thereto entitled of their just share in the rents and profits of the real estate in question." Such an order is, to be sure, final and appealable.

RULE 70FORCIBLE ENTRY AND UNLAWFUL DETAINER

Sec. 1. Who may institute proceedings, and when.Subject to the provisions of the next preceding sectionA person

- Deprived of possession of any land or building - By force, intimidation, threat, strategy or stealth OR

A lessor, vendor, vendee or other person - Against whom the possession of any land or building is unlawfully withheld- AFTER the expiration or termination of the right to hold possession - By virtue of any contract, express or implied OR

The legal representatives or assigns - Of such lessor, vendor, vendee or other person

o MAY at any time within ONE YEAR after such unlawful deprivation or withholding of possession

o Bring an action in the proper MTCo Against the person/s unlawfully withholding or depriving of possession ORo Any person/s claiming under themo For the restitution of such possessiono Together with damages and costs

Sec. 2. Lessor to proceed against lessee only after demand.UNLESS otherwise stipulatedSuch action by the lessor

- Shall be commenced only after DEMANDo To pay or comply with the conditions of the lease AND o To vacate is made upon the lessee OR

- By serving written notice of such demand upon the person found on the premises OR- By posting such notice on the premises IF NO person be found thereon AND- The lessee FAILS to comply therewith

o AFTER 15 days in case of land ORo 5 days in case of buildings

Sec. 3. Summary procedure.EXCEPT in cases covered by agricultural tenancy OR when the law otherwise expressly providesALL action for forcible entry or unlawful detainer

- Irrespective of the amount of damages or unpaid rentals sought to be recovered- Shall be governed by the summary procedure hereunder provided

Sec. 4. Pleadings allowed.The only pleadings allowed to be filed are

- The complaint- Compulsory counterclaim AND cross-claim

o Pleaded in the answer AND- Answers thereto

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ALL pleadings shall be VERIFIED

Sec. 5. Action on complaint.The court may

- From an examination of the allegations in the complaint AND such evidence as may be attached thereto

- DISMISS the case outright - On any of the grounds for dismissal of a civil action which is apparent therein

IF NO ground for dismissal is found IT

- Shall forthwith issue summons Sec. 6. Answer.Within 10 days from service of summonsThe defendant

- Shall file his answer to the complaint AND- Serve a copy thereof on the plaintiff

Affirmative and negative defenses NOT pleaded therein - Shall be deemed WAIVED- EXCEPT lack of jurisdiction over the subject matter -

Cross-claims and compulsory counterclaims NOT asserted in the answer - Shall be considered BARRED

The answer to counterclaims or cross-claims - Shall be served and filed within 10 days from service of the answer in which they are

pleaded

Sec. 7. Effect of failure to answer.Should the defendant fail to answer the complaint within the period above providedThe court

- Motu proprio or on motion of the plaintiff- Shall render judgment - As may be warranted by the facts alleged in the complaint AND- LIMITED to what is prayed for therein

The court - May in its discretion- Reduce the amount of damages and AF claimed

o For being excessive or otherwise unconscionableo Without prejudice to the applicability of Sec. 3(c), Rule 9o IF there are 2/more defendants

Sec. 8. Preliminary conference; appearance of parties.NOT LATER THAN 30 days after the last answer is filedA preliminary conference

- Shall be held

The provisions of Rule 18 on pre-trial - Shall be applicable to the preliminary conference- UNLESS inconsistent with the provisions of this Rule

The failure of the plaintiff to appear in the preliminary conference - Shall cause for the dismissal of his complaint

The defendant who appears - In the absence of the plaintiff - Shall be entitled to judgment on his counterclaim in accordance with the next preceding

section.

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All cross-claims shall be dismissed

IF a sole defendant shall fail to appearThe plaintiff

- Shall likewise be entitled to judgment in accordance with the next preceding section.

This procedure - Shall NOT apply - Where one of 2/more defendants - Sued under a common cause of action - Who had pleaded a common defense - Shall appear at the preliminary conference

NO postponement of the preliminary conference - Shall be granted - EXCEPT for highly meritorious grounds AND - Without prejudice to such sanctions as the court in the exercise of sound discretion may

impose on the movant

Sec. 9. Record of preliminary conference.Within 5 days after the termination of the preliminary conferenceThe court

- Shall issue an ORDER stating the matters taken up therein- Including but not limited to:

o (1) Whether the parties have arrived at an amicable settlement AND IF so, the terms thereof

o (2) The stipulations or admissions entered into by the parties

o (3) Whether on the basis of the pleadings and the stipulations and admission made by the parties

Judgment may be rendered without the need of further proceedings In which event the judgment shall be rendered within 30 days from

issuance of the order

o (4) A clear specification of material facts which remain controverted AND

o (5) Such other matters intended to expedite the disposition of the case

Sec. 10. Submission of affidavits and position papers. Within 10 days from receipt of the order mentioned in the next preceding sectionThe parties

- Shall submit o The affidavits of their witnesses AND o Other evidence on the factual issues defined in the ordero Together with their position papers setting forth the law and the facts relied upon by

them

Sec. 11. Period for rendition of judgment. Within 30 days after receipt of the affidavits and position papers ORThe expiration of the period for filing the sameThe court

- Shall render judgment

HoweverShould the court find it necessary to clarify certain material facts IT may

- During the said period

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- Issue an order specifying the matters to be clarified AND- Require the parties to submit affidavits or other evidence on the said matters

o Within 10 days from receipt of said order

Judgment shall be rendered - Within 15 days after the receipt of the last affidavit OR - The expiration of the period for filing the same

The court - Shall NOT resort to the foregoing procedure just to gain time for the rendition of the judgment

Sec. 12. Referral for conciliation. Cases

- Requiring referral for conciliation- Where there is NO showing of compliance with such requirement- Shall be DISMISSED without prejudice AND- May be revived only after that requirement shall have been complied with

Sec. 13. Prohibited pleadings and motions.The following petitions, motions, or pleadings shall NOT be allowed:

- (1) Motion to dismiss the complaint o EXCEPT on the ground of

Lack of jurisdiction over the subject matter OR Failure to comply with Sec. 12

- (2) Motion for a bill of particulars- (3) MNT or MR of a judgment or for reopening of trial- (4) Petition for relief from judgment- (5) Motion for extension of time to file pleadings, affidavits or any other paper- (6) Memoranda- (7) Petition for certiorari, mandamus, or prohibition

o Against any interlocutory order issued by the court- (8) Motion to declare the defendant in default- (9) Dilatory motions for postponement- (10) Reply- (11) 3rd-party complaints- (12) Interventions

Sec. 14. Affidavits.The affidavits required to be submitted under this Rule

- Shall state only facts of direct personal knowledge of the affiants o Which are admissible in evidence AND

- Shall show their competence to testify to the matters stated therein

A violation of this requirement - May subject the party or the counsel who submits the same to disciplinary action AND- Shall be cause to expunge the inadmissible affidavit or portion thereof from the

record

Sec. 15. Preliminary injunction.The court

- May grant preliminary injunction in accordance with the provisions of Rule 58 hereof- To prevent the defendant from committing further acts of dispossession against the

plaintiff

A possessor - Deprived of his possession through forcible entry or unlawful detainer - May within 5 days from the filing of the complaint

o Present a motion in the action for forcible entry or unlawful detainer o For the issuance of a writ of preliminary mandatory injunction

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To restore him in his possession

The court - Shall decide the motion - Within 30 days from the filing thereof

Sec. 16. Resolving defense of ownership.When the defendant raises the defense of ownership in his pleadings ANDThe question of possession CANNOT be resolved WITHOUT deciding the issue of ownershipThe issue of ownership

- Shall be resolved ONLY to determine the issue of possession

Sec. 17. Judgment.IF AFTER trial The court finds that the allegations of the complaint are TRUEIT

- Shall render judgment in favor of the plaintiff foro The restitution of the premiseso The sum justly due as arrears of rent OR as reasonable compensation for the use and

occupation of the premiseso AF ANDo Costs

IF a counterclaim is establishedThe court

- Shall render judgment for the sum found in arrears from either party AND- Award costs as justice requires.

Sec. 18. Judgment conclusive only on possession;   not conclusive in actions involving title or ownership. The judgment rendered in an action for forcible entry or detainer

- Shall be CONCLUSIVE with respect to the possession only AND- Shall in NO wise bind the title or affect the ownership of the land or building

Such judgment - Shall NOT bar an action - Between the same parties - Respecting title to the land or building

The judgment or final order - Shall be APPEALABLE to the appropriate RTC- Which shall decide the same - On the basis of

o The entire record of the proceedings had in the court of origin AND o Such memoranda and/or briefs as may be submitted by the parties or required by the

RTC

Sec. 19. Immediate execution of judgment;   how to stay same. IF judgment is rendered against the defendantExecution

- Shall issue immediately upon motion - UNLESS an appeal has been perfected AND- The defendant to stay execution files a sufficient supersedeas bond

o Approved by the MTC AND o Executed in favor of the plaintiff to pay the rents, damages, and costs

Accruing down to the time of the judgment appealed from AND- UNLESS during the pendency of the appeal - HE

o Deposits with the appellate court the amount of rent due from time to time under the contract

IF any

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As determined by the judgment of the MTC.

In the absence of a contractHE

- Shall deposit with the RTC - The reasonable value of the use and occupation of the premises

o For the preceding month or period o At the rate determined by the judgment of the lower court o On or before the 10th day of each succeeding month or period

The supersedeas bond - Shall be transmitted by the MTC- With the papers - To the clerk of the RTC to which the action is appealed

All amounts so paid to the appellate court - Shall be deposited with said court or authorized government depositary bank AND- Shall be held there until the final disposition of the appeal

o UNLESS the court By agreement of the interested parties OR In the absence of reasonable grounds of opposition to a motion to withdraw OR For justifiable reasons Shall decree otherwise

Should the defendant fail to make the payments above prescribed from time to time during the pendency of the appealThe appellate court

- Upon motion of the plaintiff AND- Upon proof of such failure- Shall order the execution of the judgment appealed from

o With respect to the restoration of possession BUT such execution

- Shall NOT be a bar to the appeal taking its course - UNTIL the final disposition thereof on the merits

After the case is decided by the RTCAny money paid to the court by the defendant for purposes of the stay of execution

- Shall be disposed of in accordance with the provisions of the judgment of the RTC

In any case wherein it appears that- The defendant has been deprived of the lawful possession of land or building

pending the appeal- By virtue of the execution of the judgment of the MTC

DAMAGES for such deprivation of possession AND restoration of possession - May be allowed the defendant in the judgment of the RTC disposing of the appeal

Sec. 20. Preliminary mandatory injunction in case of appeal.Upon motion of the plaintiffWithin 10 days from the perfection of the appeal to the RTCThe latter

- May issue a writ of preliminary mandatory injunction - To restore the plaintiff in possession

o IF the court is satisfied that the defendant's appeal is frivolous or dilatory OR o That the appeal of the plaintiff is prima facie   meritorious

Sec. 21. Immediate execution on appeal to Court of Appeals or Supreme Court.The judgment of the RTC against the defendant

- Shall be immediately executory- Without prejudice to a further appeal that may be taken therefrom

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CASES

(1)Quinagoran v. CA (531 SCRA 104)

Accion Publiciana: Jurisdiction Depends on Jurisdictional Amount- The doctrine that all cases of accion publiciana lie with the RTC regardless of the value of the

property NO longer holds true. As things now stand, a distinction must be made between those properties with assessed value of less than P20,000 outside Metro Manila or P50,000, if within.

(2)Hilario v. CA (260 SCRA 420) Ruling on Ownership Provisional

- An adjudication made in an ejectment suit regarding the issue of ownership should be regarded as merely provisional and therefore would NOT bar or prejudice an action between the same parties involving title to the land. The foregoing doctrine is a necessary consequence of the nature of ejectment cases where the only issue to be settled is the physical or material possession over real property.

Sufficient Allegation in Unlawful Detainer- Example: “Plaintiff verbally asked the defendants to remove their houses on the lot of the

former but the latter refused and still refuses to do so without just case and lawful grounds.”

(3)Reyes v. Sta. Maria (91 SCRA 164)

Kinds of Possession of Real Property- (1) Accion interdictal: recovery of physical possession only and is brought within one year in

the MTC - (2) Accion publiciana: recovery of the right to possess and is a plenary action and - (3) Accion de reivindicacion: recovery of ownership (which includes the jus utendi and the jus

fruendi)

(4)Consing v. Jamandre (64 SCRA 1)

Court may receive evidence on other matters to determine character and extent of possession and damages

- On the question that the reception of evidence should have been limited to possession de facto only, We rule that the court a quo did not err in going further by interpreting the contract sub-lease. While it is true that the only issue in forcible entry or unlawful detainer action is the physical possession of the leased property, that is possession de facto — not possession de jure, yet the court may go beyond that if only to prove the nature of the possession.The court may receive evidence upon the question of the title, or for that matter possession de jure , solely for the purpose of determining the character and extent of possession and damages for the detention.

(5)Maningnang v. CA (314 SCRA 525)

Prior Physical Possession NOT necessary in Unlawful Detainer Case- Prior physical possession in the plaintiff is not an indispensable requirement in an unlawful

detainer case brought by a vendee or other person against whom the possession of any land is unlawfully withheld after the expiration or termination of a right to hold possession

-Action for Annulment of Sale NOT prejudicial to Unlawful Detainer Case

- The question is, may the pendency of such an action for consignation or specific performance, or annulment of a sale, as in this case, be successfully pleaded in abatement of an action for unlawful detainer? NO.

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- The question of ownership is immaterial in an action for unlawful detainer. It is, thus, of no moment if, at the same time that an action for unlawful detainer is being litigated, there is another action respecting the same property and the same parties involving the issue of ownership. The rights asserted and the reliefs prayed for are different in the two cases.

(6)Arevalo Gomez Corporation v. Lao Hian Liong (148 SCRA 372)

Civil Code Provisions on Ejectment: Tacita Reconduccion- Art. 1669.

o If the lease was made for a determinate time, it ceases upon the day fixed, without the need of a demand.

- Art. 1670. o If at the end of the contract the lessee should continue enjoying the thing leased for

fifteen days with the acquiescence of the lessor, and unless a notice to the contrary by either party has previously been given, it is understood that there is an implied new lease, not for the period of the original contract, but for the time established in Article 1682 and 1687. The other terms of the original contract shall be revived.

Requisites of Tacita Reconduccion- Under the second article, an implied new lease or tacita reconduccion will set in if it is shown

that: o (a) The term of the original contract of lease has expired; o (b) The lessor has NOT given the lessee a notice to vacate; and o (c) The lessee continued enjoying the thing leased for 15 days with the

acquiescence of the lessor. This acquiescence may be inferred from his failure to serve a notice to quit.

Demand for Higher Rent: NO Tacita Reconduccion- Where there is a lessor’s demand to the tenant to pay a higher rental prior to expiry date of

lease, there could be NO tacita reconduccion by the fact that lessor did NOT send a formal letter of demand to vacate within the 15-day period in Art. 1670.

-

(7)Mara Inc. v. Estrella (65 SCRA 471)

Civil Code Provisions on Ejectment: Preliminary Mandatory Injunction- ART. 539.

o Every possessor has a right to be respected in his possession; and should he be disturbed therein he shall be protected in or restored to said possession by the means established by the laws and the Rules of Court.

o A possessor deprived of his possession through forcible entry may within 10 days from the filing of the complaint present a motion to secure from the competent court, in the action for forcible entry, a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within 30 days from the filing thereof.

Injunction in Ejectment Cases- The injunction contemplated in article 539 is an exception to the general rule that the writ of

injunction is not proper where its purpose is to take property out of the possession or control of one person and place it in the hands of another whose title has not clearly been established by law.

- Therefore, if the petitioner asking for an injunction is the registered owner and the oppositor is an interloper or squatter who has no possessory right to the land in litigation, a writ of preliminary mandatory injunction may be issued pendente lite.

-

(8)Caniza v. CA (286 SCRA 437)

Allegations in Unlawful Detainer- In an action for unlawful detainer, it suffices to allege that the defendant is unlawfully

withholding possession from the plaintiff is deemed sufficient, and a complaint for

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unlawful detainer is sufficient if it alleges that the withholding of possession or the refusal to vacate is unlawful without necessarily employing the terminology of the law.

Possession by Mere Tolerance Implies a Promise to Vacate upon Demand- A person who occupies the land of another at the latter's tolerance or permission

without any contract between them is necessarily bound by an implied promise that he will vacate upon demand, failing which a summary action for ejectment is the proper remedy against him. One whose stay is merely tolerated becomes a deforciant illegally occupying the land or property the moment he is required to leave.

UD: One-year Period Reckoned from Last Demand- There had been more than one demand to vacate, the one-year period for filing the complaint

for unlawful detainer must be reckoned from the date of the last demand, the reason being that the lessor has the option to waive his right of action based on previous demands and let the lessee remain meanwhile in the premises. 

Future Ownership via disposition in a will does not give rise to a right to possess- At the time of the institution of the action of desahucio, the Estradas had no legal right to the

property, whether as possessors by tolerance or sufferance, or as owners. They could not claim the right of possession by sufferance that had been legally ended. They could not assert any right of possession flowing from their ownership of the house; their status as owners is dependent on the probate of the holographic will by which the property had allegedly been bequeathed to them -- an event which still has to take place. In other words; prior to the probate of the will, any assertion of possession by them would be premature and inefficacious.

Ejectment is Not Extinguished by Death- An ejectment case survives the death of a party. Cañiza's demise did not extinguish

the desahucio suit instituted by her through her guardian. That the action, not being a purely personal one, survived her death; her heirs have taken her place and now represent her interests in the appeal at bar.

(9)De Laureano v. Adil (72 SCRA 148)

Judgment in Ejectment by MTC is immediately executory- The judgment of the inferior court in plaintiff's favor in an ejectment case is immediately

executory. Thus, where the MTC on the day it rendered the judgment ordered the execution thereof and the defendant did not perfect his appeal and did not post a supersedeas bond, it was held that even an action for certiorari would not lie to set aside the execution.

Staying Execution of MTC Judgment- The defendant may stay execution by:

o (a) perfecting an appeal and filing a supersedeas bond and o (b) paying from time to time either to the plaintiff or to the CFI during the pendency of

the appeal the rentals or the reasonable value of the use and occupation of the property as fixed by the inferior in its judgment

Purpose of Supersedeas Bond- The purpose of the supersedeas bond is to secure payment of the rents and damages

adjudged in the appealed judgment. It answers only for rentals was in the judgment and not for those that may accrue during the pendency of the appeal which are guaranteed by the periodical deposits to be made by the defendant.

- The damages contemplated in Sec. 19, Rule 70 refer to the reasonable compensation for the use and occupation of the property which is generally measured by its fair rental value. It cannot refer to other damages which are foreign to the enjoyment or material possession of the property.

- Consequently attorney's fees cannot be considered as damages.

Basis of Supersedeas Bond is the Amount fixed in the Judgment for Rents and Damages

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- The city court found that Ong Cu's lease expired and that the reasonable value of the use and occupation of the two lots is P12,000 per month. To stay execution, Ong Cu should have filed, and the city court should have required, a supersedeas bond in the total amount of the reasonable value of the use and occupation of the two lots for the period , at the rate fixed in the city court's judgment.

o The reasonable value of the use and occupation of the two lots was already fixed in its judgment. That value is the value to be deposited in court. Ong Cu's motion that it be fixed at P1,200 was uncalled for and was in contravention of the mandatory provisions of section 8 of Rule 70.It results that Ong Cu's supersedeas bond was inadequate and that he did not deposit the compensation for the use and occupation of the two lots which wits fixed in the city court judgment. His supersedeas bond and his deposits were not sufficient to stay execution. In such a case, execution is mandatory.

Exception to Mandatory Execution Despite Failure to Bond- The only exceptions are

o The existence of fraud, accident, mistake or execusable negligence which prevented the defendant from posting the supersedeas bond or making the monthly deposit OR

o The occurrence of supervening events which brought about a material change in the situation of the parties and which would make the execution inequitable.

- In this case: MISTAKEo This is a case where there was a supersedeas bond and where monthly de sits were

made but the bond and the deposit were inadequate or were not in conformity with the city court's judgment. Ong Cu committed a mistake because he followed the erroneous order of the city court which fixed the supersedeas bond and the monthly deposit in contravention of its own decision and, consequently, in violation of section 8 of Rule 70. Because of that mistake, immediate execution under Rule 70 would not be warranted.

Civil Code Provisions on Ejectment: Preliminary Mandatory Injunction- ART. 539.

o Every possessor has a right to be respected in his possession; and should he be disturbed therein he shall be protected in or restored to said possession by the means established by the laws and the Rules of Court.

o A possessor deprived of his possession through forcible entry may within 10 days from the filing of the complaint present a motion to secure from the competent court, in the action for forcible entry, a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within 30 days from the filing thereof.

- ART. 1674. o In ejectment cases where an appeal is taken the remedy granted in article 539, 2nd par.

shall also apply, if the higher court is satisfied that the lessee's appeal is frivolous or dilatory, or that the lessor's appeal is prima facie meritorious. The period of ten days referred to in said article shall be counted from the time the appeal is perfected.

Execution in Ejectment Cases- The execution in an ejectment case has two aspects:

o (a) Possession and o (b) The rentals or reasonable value of the use of the premises

Purpose of Mandatory Injunction and the Supersedeas Bond and the Monthly Deposits- The mandatory injunction refers to the POSSESSION of the premises in litigation.- On the other hand, the supersedeas bond and the monthly deposits are primarily

designed to insure that the plaintiff would be paid the back rentals or the compensation for the use and occupation of the premises should the inferior court's decision in his favor be affirmed on appeal.

- Hence, IF NO bond was filed or NO monthly deposit was made, the plaintiff is entitled to the possession of the premises. To allow the defendant to continue his possession without any security for the rentals would be prejudicial to the plaintiff. He might not be able to

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recover the back rentals when the judgment in his favor becomes final and executory. In that event, his claim for rentals would be illusory or ineffectual.

A Lessor who Builds on Property Leased Beyond Period of the Lease is NOT a Builder in Good Faith and therefore has NO Right of Rententon.

- As a lessee, who constructed a building on the leased land, Ong Cu cannot be characterized as a builder in good faith.  Contrary to the lower courts impression, the lessee has no right of retention because article 546 of the Civil Code does not apply to the improvements made by him. Only the possessor in good faith has a right of retention under Article 546.

(10) Valdez v. CA (489 SCRA 369)

Jurisdiction of the MTC- The jurisdiction of these two actions, which are summary in nature, lies in the proper MTC. - FE: 1 year from date of actual entry on the land- UD: 1 year from date of last demand to vacate

FE and UD – Legality of Entry Determines whether an action is FE or UD- Accion interdictal comprises two distinct causes of action, namely, forcible entry (detentacion)

and unlawful detainer (desahuico). - In forcible entry, one is deprived of physical possession of real property by means of force,

intimidation, strategy, threats, or stealth whereas in unlawful detainer, one illegally withholds possession after the expiration or termination of his right to hold possession under any contract, express or implied.

- The two are distinguished from each other in that in forcible entry, the possession of the defendant is illegal from the beginning, and that the issue is which party has prior de facto possession while in unlawful detainer, possession of the defendant is originally legal but became illegal due to the expiration or termination of the right to possess.

- It is the nature of defendant’s entry into the land which determines the cause of action, whether it is forcible entry or unlawful detainer. If the entry is illegal, then the action which may be filed against the intruder is forcible entry. If, however, the entry is legal but the possession thereafter becomes illegal, the case is unlawful detainer.

UD: Tolerance Must Exist from the very Beginning- To justify an action for unlawful detainer, it is essential that the plaintiff’s supposed acts

of tolerance must have been present right from the start of the possession which is later sought to be recovered. Otherwise, if the possession was unlawful from the start, an action for unlawful detainer would be an improper remedy.

- In this case: The complaint and the other pleadings do not recite any averment of fact that would substantiate the claim of petitioner that it permitted or tolerated the occupation of the property by Respondent Cruz. The complaint contains only bare allegations that 1) respondent immediately occupied the subject property after its sale to her, an action merely tolerated by petitioner; and 2) her allegedly illegal occupation of the premises was by mere tolerance.

- These allegations contradict, rather than support, petitioner’s theory that its cause of action is for unlawful detainer.

o First, these arguments advance the view that respondent’s occupation of the property was unlawful at its inception.

o Second, they counter the essential requirement in unlawful detainer cases that petitioner’s supposed act of sufferance or tolerance must be present right from the start of a possession that is later sought to be recovered.

o The allegations in the complaint do not contain any averment of fact that would substantiate petitioners’ claim that they permitted or tolerated the occupation of the property by respondents. Admittedly, no express contract existed between the parties. This failure of petitioners to allege the key jurisdictional facts constitutive of unlawful detainer is fatal. Since the complaint did not satisfy the jurisdictional requirement of a valid cause for unlawful detainer, the municipal trial court had no jurisdiction over the case.

(11) Encarnacion v. Armigo (502 SCRA 172)

Accion Publiciana

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- The length of time that the petitioner was dispossessed of his property made his cause of action beyond the ambit of an accion interdictal and effectively made it one for accion publiciana. After the lapse of the one-year period, the suit must be commenced in the RTC via an accion publiciana which is a suit for recovery of the right to possess. It is an ordinary civil proceeding to determine the better right of possession of realty independently of title. It also refers to an ejectment suit filed after the expiration of one year from the accrual of the cause of action or from the unlawful withholding of possession of the realty.

RULE 71CONTEMPT

Sec. 1. Direct contempt punished summarily. A person guilty of misbehavior

- In the presence of OR so near a court - As to obstruct or interrupt the proceedings before the same - Including

o Disrespect toward the courto Offensive personalities toward others OR o Refusal to be sworn or to answer as a witness OR to subscribe an affidavit or

deposition when lawfully required to do so May be SUMMARILY adjudged in contempt by such court AND Punished by a fine not exceeding P2000 OR imprisonment not exceeding 10

days OR both IF it be a RTC or a court of equivalent or higher rank OR

By a fine not exceeding P200 OR imprisonment not exceeding 1 day OR both IF it be a lower court

Sec. 2. Remedy therefrom.The person adjudged in DIRECT CONTEMPT by any court

- May NOT appeal therefromBUT may avail himself of the remedies of certiorari   or prohibition

The execution of the judgment - Shall be SUSPENDED pending resolution of such petition- PROVIDED such person files a BOND

o Fixed by the court which rendered the judgment AND o Conditioned that he will abide by and perform the judgment should the petition be

decided against him

Sec. 3. Indirect contempt to be punished after charge and hearing. After a charge in writing has been filed ANDAn opportunity given to the respondent

- To comment thereon within such period as may be fixed by the court AND - To be heard by himself or counsel

A person guilty of any of the following acts may be punished for INDIRECT CONTEMPT:

- (a) Misbehavior of an officer of a court o In the performance of his official duties or in his official transactions

- (b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court

o Including the act of a person who, After being dispossessed or ejected from any real property by the judgment or

process of any court of competent jurisdiction Enters or attempts or induces another to enter into or upon such real

property For the purpose of executing acts of ownership or possession OR

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In any manner disturbs the possession given to the person adjudged to be entitled thereto

- (c) Any abuse of or any unlawful interference with the processes or proceedings of a court o NOT constituting direct contempt under section 1 of this Rule

- (d) Any improper conduct tendingo Directly or indirectlyo To impede, obstruct, or degrade the administration of justice

- (e) Assuming to be an attorney or an officer of a court AND o Acting as such without authority

- (f) Failure to obey a subpoena duly served

- (g) The rescue OR attempted rescue of a person or property in the custody of an officer

o By virtue of an order or process of a court held by him

But NOTHING in this section - Shall be so construed as to prevent the court from issuing process

o To bring the respondent into court OR o From holding him in custody pending such proceedings

Sec. 4. How proceedings commenced.Proceedings for INDIRECT CONTEMPT

- May be initiated   motu propio   by the court - Against which the contempt was committed - By an order or any other formal charge - Requiring the respondent to show cause why he should not be punished for contempt

In all other casesCharges for INDIRECT CONTEMPT

- Shall be commenced by a verified petition - With supporting particulars and certified true copies of documents or papers involved therein

AND- Upon full compliance with the requirements for filing initiatory pleadings for civil

actions in the court concerned

IF the contempt charges arose out of OR are related to a principal action pending in the courtThe petition for contempt

- Shall allege that fact - BUT said petition shall be docketed, heard and decided SEPARATELY- UNLESS the court

o In its discretion o Orders the consolidation of the contempt charge and the principal action for

joint hearing and decision

Sec. 5. Where charge to be filed.Where the charge for INDIRECT CONTEPMT

- Has been committed against o RTC o A court of equivalent or higher rank ORo Against an officer appointed by it

The charge may be filed with such court

Where such contempt has been committed against a lower courtThe charge

- May be filed with the RTC of the place in which the lower court is sitting

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BUT the proceedings - May also be instituted in such lower court - Subject to appeal to the RTC of such place

o In the same manner as provided in section 11 of this Rule

Sec. 6. Hearing;   release on bail. IF the hearing is NOT ordered to be had forthwithThe respondent

- May be released from custody - Upon filing a bond- In an amount fixed by the court- For his appearance at the hearing of the charge

On the day set thereforThe court

- Shall proceed to investigate the charge AND - Consider such comment, testimony or defense as the respondent may make or offer

Sec. 7. Punishment for indirect contempt.IF the respondent is adjudged GUILTY of INDIRECT committed against a RTC or a court of equivalent or higher rankHE

- May be punished by a fine not exceeding P30,000 OR imprisonment not exceeding 6 months OR both

If he is adjudged GUILTY of contempt committed against a lower court HE

- May be punished by a fine not exceeding P5,000 OR imprisonment not exceeding 1 month, or both

IF the contempt consists in the violation of a writ of injunction, TRO or   status quo   order HE

- May also be ordered to make complete restitution to the party injured by such violation - Of the property involved OR such amount as may be alleged and proved

The writ of execution - As in ordinary civil actions- Shall issue for the enforcement of a judgment imposing a fine - UNLESS the court otherwise provides.

Sec. 8. Imprisonment until order obeyed. When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to performHE

- May be IMPRISONED by order of the court concerned - UNTIL he performs it

Sec. 9. Proceeding when party released on bail fails to answer. When a respondent released on bail fails to appear on the day fixed for the hearingThe court

- May issue another order of arrest OR - May order the bond for his appearance to be forfeited and confiscated OR - Both

AND IF the bond be proceeded againstThe measure of damages

- Shall be the extent of the loss or injury sustained by the aggrieved party - By reason of the misconduct for which the contempt charge was prosecuted- With the costs of the proceedings

AND such recovery

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- Shall be for the benefit of the party injured

IF there is NO aggrieved partyThe bond

- Shall be liable and disposed of as in criminal cases

Sec. 10. Court may release respondent.The COURT which issued the order imprisoning a person for contempt

- May discharge him from imprisonment - When it appears that public interest will NOT be prejudiced by his release

Sec. 11. Review of judgment or final order;   bond for stay. The judgment or final order of a court in a case of INDIRECT CONTEMPT

- May be appealed to the proper court as in criminal cases

BUT EXECUTION of the judgment or final order - Shall NOT be suspended - UNTIL a BOND is filed by the person adjudged in contempt

o In an amount fixed by the court from which the appeal is takeno Conditioned that IF the appeal be decided against him he will abide by and perform the

judgment or final order

Sec. 12. Contempt against quasi-judicial entities.UNLESS otherwise provided by lawThis Rule

- Shall apply to contempt committed AGAINST persons, entities, bodies or agencies exercising quasi-judicial functions OR

- Shall have suppletory effect to such rules as they may have adopted pursuant to authority granted to them by law to punish for contempt

The RTC of the place wherein the contempt has been committed - Shall have jurisdiction over such charges as may be filed therefor.

(1) Halili v. Court of Industrial Relations (136 SCRA 112)

Indefinite Confinement for Contempt is NOT Cruel, Unjust or Excessive- The punishment meted out to the petitioner is not excessive. It is suitable and adapted to its

objective: and it accord with Sec. 8, Rule 71 which provides that o "When the contempt consists in the omission to do an act which is yet in the power of

the accused to perform, he may be imprisoned by order of a superior court until he performs it.”

- If the term of imprisonment in this case is indefinite and might last through the natural life of the petitioner, yet by the terms of the sentence the way is left open for him to avoid serving any part of it by complying with the orders of the court, and in to manner put an end to his incarceration. In these circumstances, the judgment cannot be said to be excessive or unjust. As stated in a more recent case "to order that one be imprisoned for an indefinite period in a civil contempt is purely a remedial measure. Its purpose is to coerce the contemnor to do an act within his or her power to perform, He must have the means by which he may purge himself of the contempt."

Contumacy is Indivisible- The essence of the imposition of an indefinite imprisonment on the contemnor is the ultimate

and total performance of an obligation required by an order of a superior court. This is why contumacy should be indivisible it cannot be the subject of piece-meal compliance; otherwise, the very reason for which it is imposed, which is the complete compliance with an order, would be defeated.

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(2) Slade Perkins v. Director of Prisons (58 Phil 271)

Contempt Powers Inherent in Courts- The power to punish for contempt is INHERENT in all courts; its existence is essential to the

preservation of order in judicial proceedings and to the enforcement of judgments, orders and mandates of courts and consequently, to the administration of justice.

Direct vs. Indirect Contempt- DIRECT:

o May be punished summarilyo “In the presence of or so near the court or judge”

- INDIRECT:o Enumerated in Sec. 3, Rule 71

Twofold Aspect of Contempt- (1) The proper punishment of the guilty party for his disrespect to the court or its order AND- (2) To compel his performance of some act or duty required of him by the court which he

refuses to perform

Criminal vs. Civil Contempt- CIVIL:

o Failure to do something ordered to be done by a court or judge FOR THE BENEFIT of the opposing party therein

o Where punishment is by fine and directed to be paid to the party in the nature of damages for the wrong inflicted OR by imprisonment as a coercive measure to enforce the performance of some act for the benefit of the party or in aid of the final judgment or decree rendered in his behalf

May be in the nature of an interlocutory order: IF made BEFORE final decree May be remedial: AFTER final decree

- CRIMINAL:o Conduct directed against the authority and dignity of a court or judge AS IN

unlawfully assailing or discrediting the authority or dignity of a court or judge OR in doing a duly forbidden act

o Where punishment is imposed, whether against a party or a stranger, is wholly or primarily to protect or vindicate the dignity and power of the court, either by fine payable to the government or imprisonment or both

(3) Lim Se v. Argel (70 SCRA 378)

Unwarranted and unfounded allegations that a court resolution is “unjust a miscarriage of justice” is contempt

- It is obvious that Atty. Adaza's characterization of the mandatory injunction as "unjust and a miscarriage of justice" and as devoid of factual and legal basis is unfounded and unwarranted. He treated a resolution of this Court as if it were a pleading of an adversary which he could assail in unrestrained and abrasive language. His unjustified and disrespectful characterization carries with it obvious derogatory implications or innuendos which clearly constitute direct contempt or contempt facie curiae.

(4) Ang v. Castro (136 SCRA 158)

Pleadings AS NOT “in the presence of or so near the court;” Disrespect embodied in pleadings as INDIRECT Contempt

- The use of disrespectful or contemptuous language against a particular judge in pleadings presented in another court or proceeding is indirect, not direct, contempt as it is not tantamount to a misbehavior in the presence of or so near a court or judge as to interrupt the administration of justice. Stated differently, if the pleading containing derogatory, offensive or malicious statements is submitted in the same court or judge in which the proceedings are pending, it is direct contempt because it is equivalent to a

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misbehavior committed in the presence of or so near a court or judge as to interrupt the administration of justice. Considering the aforecited provisions, petitioner's conduct if at all, constitutes indirect contempt

(5) In Re Kelly (35 Phil 944)

Publication of Criticisms on PENDING CASES: ContemptibleThe publication of a criticism of party or of a court to a PENDING case, respecting the same, has always been considered as misbehavior, tending to obstruct the administration of justice and subjects such persons to contempt proceedings.

o Parties have a constitutional right to have their causes tried fairly in court by an impartial tribunal, uninfluenced by publications or public clamor.

o Any publication, pending a suit, reflecting upon the court, the parties, the officers of the court, the counsel, etc., with reference to the suit or tending to influence the decision is contempt or court and is punishable.

(6) In Re Lozano and Quevedo (54 Phil 801)

Criticism of Cases NO LONGER Pending: Also NO LONGER Contemptible- Newspaper publications tending to impede, obstruct, embarrass or influence the courts in

administering justice in a pending suit or proceeding constitute criminal contempt which is summarily punishable by the courts. The rule is OTHERWISE AFTER the cause has ENDED.

Criticism of Pending Cases Outside the Limits of Free Speech- The constitutional guaranty of freedom of speech and press must be protected to its fullest

extent. But as important as the maintenance of an unmuzzled press and the free exercise of the rights of the citizen is the maintenance of the independence of the Judiciary.

(7) People v. Godoy (243 SCRA 64)

Fair Criticism of Pending Case NOT Contemptible- The statements in the newspaper articles constitute FAIR CRITICISM The statements do not

deal with the merits of the case, but with the public accusations being made by the judge that he is being given death threats by the family of the accused, Danny Godoy. The article only makes a justifiable query as to why the judge does not file the appropriate charges if his accusations are true.

o Examples: That the judge was being threatened (death threats) by the accused in another

case who was sentence to death penalty, thus he hired armed security as protection.

The authors said that if it were true, why didn’t he file a case against the accused’s relatives? “O bale ba gumawa siya ng sariling MULTO Pagkatapos ay takot na takot siya sa multong kanyang ginawa.”

That there have been stories of accused Godoy being given special treatment in the provincial jail (allowed visits by mistress, eating out with provincial guard)

- Moreover, the article is merely a report of rumors regarding the accused Danny Godoy. They are NOT presented as facts by the writer. In fact, he even goes to the extent of acknowledging that he himself does not know if the rumors are true or not.

Snide Remarks NOT NECESSARILY Contemptible- Snide remarks or sarcastic innuendoes do not necessarily assume that level of

contumely which is actionable under Rule 71 of the Rules of Court. Neither do we believe that the publication in question was intended to influence this Court for it could not conceivably be capable of doing so. The article has not transcended the legal limits for editorial comment and criticism. Besides, it has not been shown that there exists a

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substantive evil which is extremely serious and that the degree of its imminence is so exceptionally high as to warrant punishment for contempt and sufficient to disregard the constitutional guaranties of free speech and press.

Post-litigation Criticism: Fair Criticism- The Philippine rule as to contempt in newspaper publications is that in case of a post-litigation

newspaper publication, fair criticism of the court, its proceedings and its members, are allowed.

- HOWEVER there may be a contempt of court, even though the case has been terminated, if the publication is attended by either of these two circumstances:

o (1) Where it TENDS TO BRING THE COURT INTO DISRESPECT or, in other words, to SCANDALIZE The court;  or

o (2) Where there is a CLEAR AND PRESENT DANGER that the administration of justice would be impeded.

- To constitute contempt, criticism of a past action of the court must pose a clear and present danger to a fair administration of justice, that is, the publication must have an inherent tendency to influence, intimidate, impede, embarrass, or obstruct the court's administration of justice.  

- It is not merely a private wrong against the rights of litigants and judges, but a public wrong, a crime against the State, to undertake by libel or slander to impair confidence in the judicial functions. There must be a balancing of interests between the media’s right to freedom of speech and the power to protect the integrity of the court.

Criticism of APPEALED CASES- The rule, as now accepted and deemed applicable to the present incident, is that where the

entire case has already been appealed, jurisdiction to punish for contempt rests with the appellate court where the appeal completely transfers the proceedings thereto or where there is a tendency to affect the   status quo   or otherwise interfere with the jurisdiction of the appellate court. Accordingly, this Court having acquired jurisdiction over the complaint for indirect contempt against herein respondents, it has taken judicial cognizance thereof and has accordingly resolved the same.

Contempt and Libel- There may still be a contempt of court even after a case has been decided and

terminated. In such case, the offender may be cited for contempt for uttering libelous remarks against the court or the judge. The availability, however, of the power to punish for contempt does NOT and will NOT prevent a prosecution for libel, either before, during, or after the institution of contempt proceedings. In other words, the fact that certain contemptuous conduct likewise constitutes an indictable libel against the judge of the court contemned does not necessarily require him to bring a libel action, rather than relying on contempt proceedings. 

Contempt is separate and distinct from an administrative case against a member of the bar

- The power to punish for contempt and the power to disbar are separate and distinct, and that the exercise of one does not exclude the exercise of the other.     A contempt proceeding for misbehavior in court is designed to vindicate the authority of the court; on the other hand, the object of a disciplinary proceeding is to deal with the fitness of the court's officer to continue in that office, to preserve and protect the court and the public from the official ministrations of persons unfit or unworthy to hold such office.

- Moreover, it has been held that the imposition a fine as a penalty in a contempt proceeding is not considered res judicata to a subsequent charge for unprofessional conduct.  In the same manner an attorney's conviction for contempt was not collaterally estopped by reason of a subsequent disbarment proceeding in which the court found in his favor on essentially the same facts leading to conviction.  It has likewise been the rule that a notice to a lawyer to show cause why he should not be punished for contempt cannot be considered as a notice to show cause why he should not be suspended from the practice of law, considering that they have distinct objects and for each of them a different procedure is established.

(8) In Re Sotto (82 Phil 595)

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Criticism Permissible IF Enlightening AND NOT tend to influence action of court- Mere criticism or comment on the correctness or wrongness, soundness or unsoundness of the

decision of the court in a pending case made in good faith may be tolerated; because if well founded it may enlighten the court and contribute to the correction of an error if committed; but if it is not well taken and obviously erroneous, it should, in no way, influence the court in reversing or modifying its decision.

o Had the respondent in the present case limited himself to as statement that our decision is wrong or that our construction of the intention of the law is not correct, because it is different from what he, as proponent of the original bill which became a law had intended, his criticism might in that case be tolerated, for it could not in any way influence the final disposition of the Parazo case by the court.

o He not only intends to intimidate the members of this Court with the presentation of a bill in the next Congress, of which he is one of the members, reorganizing the Supreme Court and reducing the members, reorganizing the Supreme Court and reducing the members of Justices from eleven to seven, so as to change the members of this Court which decided the Parazo case, who according to his statement, are incompetent and narrow minded, in order to influence the final decision of said case by this Court, and thus embarrass or obstruct the administration of justice. But the respondent also attacks the honesty and integrity of this Court for the apparent purpose of bringing the Justices of this Court into disrepute and degrading the administration of justice

(9) Macrohon v. Ibay (509 SCRA 75)

Act of carpenters of accidentally causing a leak in a judge’s office is NOT contemptible; Vindictive exercise of contempt powers- Respondent judge used his contempt power in a vindictive and retaliatory manner. The

fact that “he would not be able to write down his decisions as expediently as when he has the full use of his computer and meet on time the requirements of decision-making” is no excuse nor justification for utilizing such power for retaliation and vindication. The salutary rule is that the power to punish for contempt must be exercised on the preservative, not vindictive principle, and on the corrective and not retaliatory idea of punishment.

(10) Regalado v. Go (514 SCRA 616)

Commencing INDIRECT Contempt Proceedings- Indirect contempt proceedings may be initiated only in two ways:

o (1) Motu proprio by the court ORo (2) Verified petition and upon compliance with the requirements for initiatory

pleadings. - There is no doubt that the complained acts of Atty. Regalado constitute contemptible acts but

the procedural requirements of the law were NOT complied with. The indirect contempt proceedings were initiated by respondent Go through a Manifestation with Omnibus Motion. It was based on the aforesaid Motion that the appellate court issued a Resolution requiring petitioner Atty. Regalado to show cause why she should not be cited for contempt. In cases where the court did not initiate the contempt charge, the Rules prescribe that a verified petition which has complied with the requirements of initiatory pleadings.

- Even if the contempt proceedings stemmed from the main case over which the court already acquired jurisdiction, the Rules direct that the petition for contempt be treated independently of the principal action. Consequently, the necessary prerequisites for the filing of initiatory pleadings, such as the filing of a verified petition, attachment of a certification on non-forum shopping, and the payment of the necessary docket fees, must be faithfully observed.

(11) Judge Espanol v. Formoso (525 SCRA 216)

Use of forged of falsified documents as INDIRECT Contempt; Notice and Hearing Necessary- The use of falsified and forged documents is a contumacious act. However, it constitutes

indirect contempt not direct contempt. Pursuant to the above provision, such act is an improper conduct which degrades the administration of justice.

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- The imputed use of a falsified document, more so where the falsity of the document is not apparent on its face, merely constitutes indirect contempt, and as such is subject to such defenses as the accused may raise in the proper proceedings. Thus, following Section 3, Rule 71, a contemner may be punished only after a charge in writing has been filed, and an opportunity has been given to the accused to be heard by himself and counsel. Moreover, settled is the rule that a contempt proceeding is not a civil action, but a separate proceeding of a criminal nature in which the court exercises limited jurisdiction. Thus, the modes of procedure and the rules of evidence in contempt proceedings are assimilated as far as practicable to those adapted to criminal prosecutions. Perforce, petitioner judge erred in declaring summarily that respondents are guilty of direct contempt and ordering their incarceration. She should have conducted a hearing with notice to respondents.

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