JURISPRUDENCE personally knows the facts, that a sufficient cause of
action exists, that the case is one of those mentioned in
RULE 57 PRELIMINARY ATTACHMENT
DAVAO LIGHT & POWER CO., INC., petitioner,
vs.
THE COURT OF APPEALS, QUEENSLAND HOTEL or MOTEL or
QUEENSLAND TOURIST INN, and TEODORICO ADARNA, respondents.
In Davao Light & Power Co., Inc. v. Court of
Appeals,this Court clarified the actual time when
jurisdiction should be had:
"It goes without saying that whatever be the
acts done by the Court prior to the acquisition of
jurisdiction over the person of defendant - issuance
of summons, order of attachment and writ of
attachment - these do not and cannot bind and affect
the defendant until and unless jurisdiction over his
person is eventually obtained by the court, either
by service on him of summons or other coercive
process or his voluntary submission to the courts
authority.
A preliminary attachment may be defined, paraphrasing
the Rules of Court, as the provisional remedy in virtue of
which a plaintiff or other party may, at the commencement
of the action or at any time thereafter, have the property
of the adverse party taken into the custody of the court as
security for the satisfaction of any judgment that may be
recovered. It is a remedy which is purely statutory in
respect of which the law requires a strict construction of
the provisions granting it. Withal no principle, statutory
or jurisprudential, prohibits its issuance by any court
before acquisition of jurisdiction over the person of the
defendant.
In Toledo v. Burgos, this Court ruled that a hearing
on a motion or application for preliminary attachment is
not generally necessary unless otherwise directed by the
Trial Court in its discretion.
In Filinvest Credit Corporation v. Relova, the Court
declared that "(n)othing in the Rules of Court makes notice
and hearing indispensable and mandatory requisites for the
issuance of a writ of attachment." The only pre-requisite
is that the Court be satisfied, upon consideration of "the
affidavit of the applicant or of some other person who
Section 1 . . . (Rule 57), that there is no other sufficient
security for the claim sought to be enforced by the action,
and that the amount due to the applicant, or the value of
the property the possession of which he is entitled to
recover, is as much as the sum for which the order (of
attachment) is granted above all legal counterclaims."
Two (2) ways of discharging an attachment: first, by the
posting of a counterbond; and second, by a showing of its
improper or irregular issuance.
1.0. The submission of a counterbond is an efficacious mode
of lifting an attachment already enforced against property,
or even of preventing its enforcement altogether.
1.1. When property has already been seized under
attachment, the attachment may be discharged upon
counterbond in accordance with Section 12 of Rule 57.
Sec. 12. Discharge of attachment upon giving
counterbond. At any time after an order of
attachment has been granted, the party whose property
has been attached or the person appearing in his
behalf, may, upon reasonable notice to the applicant,
apply to the judge who granted the order, or to the
judge of the court in which the action is pending,
for an order discharging the attachment wholly or in
part on the security given . . . in an amount equal
to the value of the property attached as determined
by the judge to secure the payment of any judgment
that the attaching creditor may recover in the action.
1.2. But even before actual levy on property, seizure under
attachment may be prevented also upon counterbond. The
defendant need not wait until his property is seized before
seeking the discharge of the attachment by a counterbond.
This is made possible by Section 5 of Rule 57.
Sec. 5. Manner of attaching property. The
officer executing the order shall without delay
attach, to await judgment and execution in the action,
all the properties of the party against whom the order
is issued in the province, not exempt from execution,
or so much thereof as may be sufficient to satisfy
the applicant's demand, unless the former makes a
deposit with the clerk or judge of the court from
which the order issued, or gives a counter-bond
executed to the applicant, in an amount sufficient to
JURISPRUDENCE 1
 satisfy such demand besides costs, or in an amount
equal to the value of the property which is about to
be attached, to secure payment to the applicant of
any judgment which he may recover in the action. . .
. (Emphasis supplied)
2.0. Aside from the filing of a counterbond, a preliminary
attachment may also be lifted or discharged on the ground
that it has been irregularly or improperly issued, in
accordance with Section 13 of Rule 57. Like the first, this
second mode of lifting an attachment may be resorted to even
before any property has been levied on. Indeed, it may be
availed of after property has been released from a levy on
attachment, as is made clear by said Section 13, viz.:
Sec. 13. Discharge of attachment for
improper or irregular issuance. The party whose
property has been attached may also, at any time
either BEFORE or AFTER the release of the attached
property, or before any attachment shall have been
actually levied, upon reasonable notice to the
attaching creditor, apply to the judge who granted
the order, or to the judge of the court in which the
action is pending, for an order to discharge the
attachment on the ground that the same was improperly
or irregularly issued. If the motion be made on
affidavits on the part of the party whose property
has been attached, but not otherwise, the attaching
creditor may oppose the same by counter-affidavits or
other evidence in addition to that on which the
attachment was made. . . . (Emphasis supplied)
(b) Effect of the dissolution of a preliminary attachment
on the plaintiffs attachment bond:
. . . The dissolution of the preliminary attachment upon
security given, or a showing of its irregular or improper
issuance, does not of course operate to discharge the
sureties on plaintiff's own attachment bond. The reason is
simple. That bond is "executed to the adverse party, . . .
conditioned that the . . . (applicant) will pay all the
costs which may be adjudged to the adverse party and all
damages which he may sustain by reason of the attachment,
if the court shall finally adjudge that the applicant was
not entitled thereto" (SEC. 4, Rule 57). Hence, until that
determination is made, as to the applicant's entitlement to
the attachment, his bond must stand and cannot be with-
drawn.
ELEAZAR V. ADLAWAN
vs.
HON. JUDGE VALERIANO P. TOMOL, as Presiding Judge of
Branch XI of RTC-Cebu (formerly Branch XI, CFI-Cebu),
Branch XXVII of RTC-Cebu, with Station in Lapu-Lapu City
(formerly Branch XVI, CFI-Cebu, Presided over by former
Judge Ceferino E. Dulay), and ABOITIZ COMPANY, INC.,
respondents.
A writ of preliminary attachment is a provisional
remedy issued upon order of the court where an action is
pending to be levied upon the property or properties of
the defendant therein, the same to be held thereafter by
the Sheriff as security for the satisfaction of whatever
judgment might be secured in said action by the attaching
creditor against the defendant.
The provisional remedy of attachment is available in
order that the defendant may not dispose of his property
attached, and thus secure the satisfaction of any judgment
19
that may be secured by plaintiff from defendant.
The purpose and function of an attachment or
garnishment is two-fold.
First, it seizes upon property of an alleged debtor in
advance of final judgment and holds it subject to
appropriation thus prevents the loss or dissipation of the
property by fraud or otherwise.
Second, it subjects to the payment of a creditor's claim
property of the debtor in those cases where personal
2
service cannot be obtained upon the debtor.
This remedy is to secure a contingent lien on
defendant's property until plaintiff can, by appropriate
proceedings, obtain a judgment and have such property
applied to its satisfaction, or to make some provision for
unsecured debts in cases where the means of satisfaction
thereof are liable to be removed beyond the jurisdiction,
or improperly disposed of or concealed, or otherwise
placed beyond the reach of creditors.
Attachment is an ancillary remedy. It is not sought
for its own sake but rather to enable the attaching party
to realize upon relief sought and expected to be granted
in the main or principal pal action.
The remedy of attachment is adjunct to the main
suit, therefore, it can have no independent existence
apart from a suit on a claim of the plaintiff against the
defendant. In other words, a attachment or garnishment is
JURISPRUDENCE 2
generally ancillary to, and dependent on, a principal
proceeding, either at law or in equity, which has for its
purpose a determination of the justice of creditor's
demand.
RIZAL COMMERCIAL BANKING CORPORATION, petitioner,
vs.
THE HONORABLE PACIFICO P. DE CASTRO and PHILIPPINE
VIRGINIA TOBACCO ADMINISTRATION
Whether or not PVTA funds are public funds not subject to
garnishment;
Republic Act No. 2265 created the PVTA as an
ordinary corporation with all the attributes of a
corporate entity subject to the provisions of the
Corporation Law. Hence, it possesses the power to sue and
be sued and to acquire and hold such assets and incur
such liabilities resulting directly from operations
authorized by the provisions of this Act or as essential
to the proper conduct of such operations. Among the
specific powers vested in the PVTA are: 1) to buy Virginia
tobacco grown in the Philippines for resale to local bona
fide tobacco manufacturers and leaf tobacco dealers
[Section 4(b), R.A. No. 2265]; 2) to contracts of any kind
as may be necessary or incidental to the attainment of its
purpose with any person, firm or corporation, with the
Government of the Philippines or with any foreign
government, subject to existing laws [Section 4(h), R.A.
No. 22651; and 3) generally, to exercise all the powers of
a corporation under the Corporation Law, insofar as they
are not inconsistent with the provisions of this Act
[Section 4(k), R.A. No. 2265.]
From the foregoing, it is clear that PVTA has been
endowed with a personality distinct and separate from the
government which owns and controls it. Accordingly, this
Court has heretofore declared that the funds of the PVTA
can be garnished since funds of public corporation which
can sue and be sued were not exempt from
garnishment. Inasmuch as the Tobacco Fund, a special
fund, was by law, earmarked specifically to answer
obligations incurred by PVTA in connection with its
proprietary and commercial operations authorized under the
law, it follows that said funds may be proceeded against
by ordinary judicial processes such as execution and
garnishment. Garnishment is considered as a specie of
attachment for reaching credits belonging to the judgment
debtor and owing to him from a stranger to the litigation.
Under the above-cited rule, the garnishee [the third
person] is obliged to deliver the credits, etc. to the
proper officer issuing the writ and the law exempts from
liability the person having in his possession or under his
control any credits or other personal property belonging
to the defendant, , if such property be delivered or
transferred, , to the clerk, sheriff, or other officer of
the court in which the action is pending.
ANITA MANGILA, petitioner,
vs.
COURT OF APPEALS and LORETA GUINA, respondents.
A distinction should be made between issuance and
implementation of the writ of attachment. It is necessary
to distinguish between the two to determine when
jurisdiction over the person of the defendant should be
acquired to validly implement the writ.
This Court has long settled the issue of when
jurisdiction over the person of the defendant should be
acquired in cases where a party resorts to provisional
remedies. A party to a suit may, at any time after filing
the complaint, avail of the provisional remedies under the
Rules of Court.
Rule 57 on preliminary attachment speaks of the
grant of the remedy "at the commencement of the action or
at any time thereafter." This phrase refers to the date of
filing of the complaint which is the moment that marks
"the commencement of the action." The reference plainly is
to a time before summons is served on the defendant, or
even before summons issues.
Hence, when the sheriff or other proper officer
commences implementation of the writ of attachment, it is
essential that he serve on the defendant not only a copy
of the applicants affidavit and attachment bond, and of
the order of attachment, as explicitly required by Section
5 of Rule 57, but also the summons addressed to said
defendant as well as a copy of the complaint xxx."
(Emphasis supplied.)
Furthermore, we have held that the grant of the
provisional remedy of attachment involves three stages:
first, the court issues the order granting the
application; second, the writ of attachment issues
JURISPRUDENCE 3
pursuant to the order granting the writ; and third, the
writ is implemented. For the initial two stages, it is not
necessary that jurisdiction over the person of the
defendant be first obtained. However, once the
implementation of the writ commences, the court must have
acquired jurisdiction over the defendant for without such
jurisdiction, the court has no power and authority to act
in any manner against the defendant. Any order issuing
from the Court will not bind the defendant
BERNARDO VALDEVIESO, petitioner,
vs.
CANDELARIO DAMALERIO AND AUREA C. DAMALERIO, respondents.
The settled rule is that levy on attachment, duly
registered, takes preference over a prior unregistered
sale. This result is a necessary consequence of the fact
that the property involved was duly covered by the Torrens
system which works under the fundamental principle that
registration is the operative act which gives validity to
the transfer or creates a lien upon the land.
The preference created by the levy on attachment is
not diminished even by the subsequent registration of the
prior sale. This is so because an attachment is a
proceeding in rem.It is against the particular property,
enforceable against the whole world. The attaching
creditor acquires a specific lien on the attached property
which nothing can subsequently destroy except the very
dissolution of the attachment or levy itself.
The lien continues until the debt is paid, or sale
is had under execution issued on the judgment, or until
the judgment is satisfied, or the attachment discharged or
vacated in some manner provided by law.
PCL Industries Manufacturing Corporation, Petitioner,
vs.
The COURT OF APPEALS and ASA Color & Chemical Industries,
Inc., Respondents.
In Philippine Bank of Communications v. Court of
6
Appeals, the Court held thus:
Petitioner cannot insist that its allegation that
private respondents failed to remit the proceeds of
the sale of the entrusted goods nor to return the
same is sufficient for attachment to issue. We note
that petitioner anchors its application upon Section
1(d), Rule 57.
This particular provision was adequately explained
in Liberty Insurance Corporation v. Court of Appeals, as
follows
To sustain an attachment on this ground, it
must be shown that the debtor in contracting the
debt or incurring the obligation intended to defraud
the creditor. The fraud must relate to the execution
of the agreement and must have been the reason which
induced the other party into giving consent which he
would not have otherwise given. To constitute a
ground for attachment in Section 1 (d), Rule 57 of
the Rules of Court, fraud should be committed upon
contracting the obligation sued upon. A debt is
fraudulently contracted if at the time of
contracting it the debtor has a preconceived plan or
intention not to pay, as it is in this case. Fraud
is a state of mind and need not be proved by direct
evidence but may be inferred from the circumstances
attendant in each case (Republic v. Gonzales, 13
SCRA 633). (Emphasis ours)
We find an absence of factual allegations as to how
the fraud alleged by petitioner was committed. As
correctly held by respondent Court of Appeals, such
fraudulent intent not to honor the admitted obligation
cannot be inferred from the debtors inability to pay or
to comply with the obligations.
SPOUSES SANTIAGO and RUFINA TANCHAN, petitioners
vs.
ALLIED BANKING CORPORATION, respondent.
Under Section 13, Rule 57 of the Rules of Court, a
party whose property has been ordered attached may file a
motion "with the court in which the action is pending" for
the discharge of the attachment on the ground that it has
been improperly issued or enforced.
In addition, said party may file, under Section 20,
Rule 57, a claim for damages on account of improper
JURISPRUDENCE 4
attachment within the following periods:
Sec. 20. Claim for damages on account of
improper, irregular or excessive attachment. - An
application for damages on account of improper,
irregular or excessive attachment must be filed
before the trial or before appeal is perfected or
before the judgment becomes executory, with due
notice to the attaching obligee or his surety or
sureties, setting forth the facts showing his right
to damages and the amount thereof. Such damages may
be awarded only after proper hearing and shall be
included in the judgment on the main case.
If the judgment of the appellate court be favorable
to the party against whom the attachment was issued, he
must claim damages sustained during the pendency of the
appeal by filing an application in the appellate court
with notice to the party in whose favor the attachment was
issued or his surety or sureties, before the judgment of
the appellate court becomes executory. The appellate court
may allow the application to be heard and decided by the
trial court
RULE 58 PRELIM INJUNCTION
TAY CHUN SUY, petitioner,
vs.
COURT OF APPEALS AND DEVELOPMENT BANK OF THE PHILIPPINES,
respondents.
The general rule that no court has the power to interfere
by injunction with the judgments or decrees of another
court with concurrent or coordinate jurisdiction
possessing equal power to grant injunctive relief, applies
only when no third-party claimant is involved (Traders
Royal Bank v. Intermediate Appellate Court, 133 SCRA 142).
When a third-party, or a stranger to the action, asserts a
claim over the property levied upon, the claimant may
vindicate his claim by an independent action in the proper
civil court which may stop the execution of the judgment
on property not belonging to the judgment debtor.
SAMSON T. SABALONES, petitioner,
vs.
THE COURT OF APPEALS and REMEDIOS GAVIOLA-SABALONES,
respondents.
The twin requirements of a valid injunction are the
existence of a right and its actual or threatened
violation.
The primary purpose of the provisional remedy of
injunction is to preserve the status quo of the things
subject of the action or the relations between the parties
and thus protect the rights of the plaintiff respecting
these matters during the pendency of the suit. Otherwise,
the defendant may, before final judgment, do or continue
doing the act which the plaintiff asks the court to
restrain and thus make ineffectual the final judgment that
may be rendered afterwards in favor of the plaintiff.
As observed by Francisco, "Injunction is primarily a
preventive remedy. Its province is to afford relief
against future acts which are against equity and good
conscience and to keep and preserve the thing in the
status quo, rather than to remedy what is past or to
punish for wrongful acts already committed. It may issue
to prevent future wrongs although no right has yet been
violated."
The Court notes that the wife has been administering the
subject properties for almost nineteen years now,
apparently without complaint on the part of the
petitioner. He has not alleged, much less shown, that her
administration has caused prejudice to the conjugal
partnership. What he merely suggests is that the lease of
the Forbes Park property could be renewed on better terms,
or he should at least be given his share of the rentals.
In her motion for the issuance of a preliminary
injunction, the respondent wife alleged that the
petitioner's harassment of their tenant at Forbes Park
would jeopardize the lease and deprive her and her
children of the income therefrom on which they depend for
their subsistence. She also testified the numerous . . .
including various dollar accounts, two houses in Quezon
City and Cebu City, and a Mercedes Benz. The private
JURISPRUDENCE 5
respondent also complained that on June 10, 1991, the
petitioner executed a quitclaim over their conjugal
property in Apple Valley, San Bernardino, California,
U.S.A., in favor of Thelma Cumareng, to improve his
paramour's luxurious lifestyle to the prejudice of his
legitimate family.
These allegations, none of which was refuted by the
husband, show that the injunction is necessary to protect
the interests of the private respondent and her children
and prevent the dissipation of the conjugal assets.
BACOLOD CITY WATER DISTRICT, petitioner,
vs.
THE HON. EMMA C. LABAYEN, Presiding Judge, RTC of Bacolod
City, Br. 46 and the City of Bacolod, respondents.
njunction is a judicial writ, process or proceeding
whereby a party is ordered to do or refrain from doing a
certain act. It may be the main action or merely a
provisional remedy for and as an incident in the main
action.
The main action for injunction is distinct from the
provisional or ancillary remedy of preliminary injunction
which cannot exist except only as part or an incident of
an independent action or proceeding. As a matter of
course, in an action for injunction, the auxiliary remedy
of preliminary injunction, whether prohibitory or
mandatory, may issue. Under the law, the main action for
injunction seeks a judgment embodying a final injunction
which is distinct from, and should not be confused with,
the provisional remedy of preliminary injunction, the sole
object of which is to preserve the status quo until the
merits can be heard. A preliminary injunction is granted
at any stage of an action or proceeding prior to the
judgment or final order. It persists until it is dissolved
or until the termination of the action without the court
issuing a final injunction.
A restraining order, on the other hand, is issued to
preserve the status quo until the hearing of the
application for preliminary injunction which cannot be
issued ex parte. Under Rule 58 of the Rules of Court, a
judge may issue a temporary restraining order with a
limited life of twenty (20) days from date of issue. If
before the expiration of the twenty (20)-day period the
application for preliminary injunction is denied, the
temporary restraining order would be deemed automatically
vacated. If no action is taken by the judge on the
application for preliminary injunction within the said
twenty (20) days, the temporary restraining order would
automatically expire on the 20th day by the sheer force of
law, no judicial declaration to that effect being
necessary.
Hence, in the case at bar, since no preliminary injunction
was issued, the temporary restraining order granted
automatically expired after twenty (20) days under the
Rules. The fact that respondent court merely ordered "the
respondent[,] its agents, representatives or any person
acting in his behalf to stop, desist and refrain from
implementing in their billings the new water rate increase
which will start on March 1, 2000" without stating the
period for the restraint does not convert the temporary
restraining order to a preliminary injunction.
RULE 59 RECEIVERSHIP
JOSE COCHINGYAN, SR. and SUSANA COCHINGYAN, intervenors-
appellees,
vs.
RAMON E. SAURA, former first receiver-appellant)
It is inherent in the office of a receiver not only that
he should act at all times with the diligence and prudence
of a good father of a family but should also not incur any
obligation or expenditure without leave of the court and
it is the responsibility of the court to supervise the
receiver and see to it that he adheres to the above
standard of his trust and limits the expenses of the
receivership to the minimum.
JURISPRUDENCE 6
Surigao Development Bank vs. Hon. Teofilo Buslon
Appointment and discharge of receivers are matters primarily
addressed to, and resting largely on, the discretion of the
trial court, not being a matter of strict right, and a
reviewing court will not interfere with the exercise of such
discretion unless convinced that the same has been abused.
Pacific Merchandising Corp. vs. Consolacion Insurance and
Surety Co.,
The receiver performs his duties subject to the control of
the Court, and every question involved in the receivership
may be determined by the court taking cognizance of the
receivership proceedings. Thus, a receiver, strictly
speaking, has no right or power to make any contract binding
the property or fund in his custody or to pay out funds in
his hands without the authority or approval of the court;
Unauthorized contracts of a receiver do not bind the court
in charge of receivership. They are the receiver's own
contracts and are not recognized by the courts as contracts
of the receivership.
Calixto Duque vs. Court of First Instance of Manila
The appointment and discharge of receivers are matters
primarily addressed to, and resting largely on, the
discretion of the trial court, not being a matter of strict
right, and a reviewing court will not interfere with the
exercise of such discretion unless convinced that the same
has been abused.
Antonio De La Riva vs. Rafael Molina Salvador
Any unauthorized interference with a receiver's possession
of the property committed to his charge, or with the
receiver in the discharge of his official duties, is a
contempt of the court by which he was appointed; No action
can be brought against a receiver without leave of the
court appointing him.
RULE 60 REPLEVIN
CHIAO LIONG TAN V. COURT OF APPEALS
Replevin is possessory in character and determines nothing
more than the right of possession. However, when the title
to the property is distinctly put in issue by the
defendants plea and by reason of the policy to settle in
one action all the conflicting claims of the parties to
the possession of the property in controversy, the
question of ownership may be resolved in the same
proceeding.
Also, replevin is sufficiently flexible to authorize a
settlement of all equities between the parties, arising
from or growing out of the main controversy. Hence, the
winning party may in the same court procure relief for the
return of the property.
NONILLON A. BAGALIHOG, petitioner,
vs.
HON. JUDGE GIL P. FERNANDEZ, Presiding Judge of Br. 45,
RTC of Masbate; and MAJOR JULITO ROXAS, respondents.
Property seized in enforcing criminal laws is in the
custody of the law and cannot be replevied until such
custody is ended.
ROMEO S. CHUA, petitioner,
vs.
THE HON. COURT OF APPEALS, DENNIS CANOY AND ALEX DE
LEON, respondents.
It is a basic tenet of civil procedure that replevin will
not lie for property in custodia legis. A thing is
in custodia legis when it is shown that it has been and is
subjected to the official custody of a judicial executive
officer in pursuance of his execution of a legal writ
Requisites of Replevin:
1. Personal property capable of manual delivery;
2. Such property is wrongfully detained by the adverse
party
JURISPRUDENCE 7
 3. Must NOT be in custodial legis, distrained or taken
for tax
4. State actual market value for the bond
5. Post bond
THE BACHRACH MOTOR CO., INC., petitioner,
vs.
MARIANO A. ALBERT, Judge of Branch AB of the Court of
First Instance of Manila,
ISABEL ABLAZA, and PEDRO VALDEZ LIONGSON, respondents.
it is readily apparent that one to avail himself of the
privilege of retaining the possession of property,
compliance with the conditions precedent imposed is
necessary, and failure to comply therewith entitles
plaintiff to possession. The initial steps in obtaining
redelivery must be taken within the same time limited by
the statute.
Redelivery bond: double the amount of property seized
OLYMPIA INTERNATIONAL, INC., petitioner,
vs.
THE HONORABLE COURT OF APPEALS, ALPHA INSURANCE & SURETY
CO., INC., and JUDGE. JOSE C. CAMPOS, JR., respondents.
Being provisional and ancillary in character, its
existence and efficacy depended on the outcome of the
case. The case having been dismissed, so must the writ's
existence and efficacy be dissolved.
PEOPLE'S SURETY AND INSURANCE COMPANY, INC., petitioner,
vs.
HON. CRISANTO ARAGON, Judge of the Municipal Court of
Manila, The Sheriff of Manila and EULOGIO P.
FLORES, respondents.
to recover on a replevin bond, the following requisites
must be observed:
1. There must be an application showing the right to
damages and the amount thereof;
2. Notice of the application for damages must be given to
the plaintiff and his surety;.
3. There must be a hearing in case the application is
opposed; and
4. Any award for damages must be included
in the judgment of the court.
RULE 61 SUPPORT PENDENTE LITE
Maria Quintana vs. Gelasio Lerma
The special defense of adultery set up by the defendant
in his answer both to the original and the amended
complaint is a good defense, and if properly proved and
sustained will defeat the action.
Rosita Veloso De Olayar vs. Aristoteles Olayvar
Note that the present action is for support not only of
plaintiff but of her children. The action is predicated on
the infidelity of defendant who because of his propensity
towards other women made him neglectful of his marital
duties. The case of legal separation, on the other hand,
asserts adultery on the part of plaintiff which is a valid
defense against an action for support (Quintana v. Lerma,
24 Phil., 285).
RULE 62 INTERPLEADER
RULE 63 DECLARATORY RELIEF
RULE 64 REV OF JUDGEMENT AND FINAL ORDER OF COMELEC AND
COA
RULE 65 C, P, M
MAYOR EDGARDO G. FLORES, petitioner vs. SANGGUNIANG
PANLALAWIGAN OF PAMPANGA, GOVERNOR MANUEL M. LAPID OF
JURISPRUDENCE 8
PAMPANGA, MUNICIPAL COUNCILORS VANZALON F. TIZON, ROMULO
N. MANDAP, EDGARDO P. YAMBAO, JEROME M. TONGOL, MARCIANO
L. SACDALAN, and RICKY Y. NARCISO, respondents.
We have held that the plain and adequate remedy referred
to in Section 1 of Rule 65 is a motion for reconsideration
of the assailed Order or Resolution.[7] Petitioner may not
arrogate to himself the determination of whether a motion
for reconsideration is necessary or not.[8] To dispense
with the requirement of filing a motion for
reconsideration, petitioner must show a concrete,
compelling, and valid reason for doing so.[9] This,
petitioner failed to do. Thus, the Court of Appeals
correctly held that petitioner should have first
interposed a motion for reconsideration of the questioned
Order issued by respondent Sangguniang Panlalawigan.
We must add that petitioner, before filing with the Court
of Appeals his petition for certiorari, should have waited
for respondent Governor Lapids action on the
recommendation of respondent Sangguniang Panlalawigan that
he be preventively suspended from office; and on his
letter requesting the Governor to veto the questioned
Order, considering that the latter is the one empowered by
law to impose preventive suspension upon him. Section 63
of the Local Government Code of 1991 partly provides:
SEC 63. Preventive Suspension.
(a) Preventive suspension may be imposed:
(1) By the President, if the respondent is an elective
official of a province, a highly urbanized or an
independent component city;
(2) By the governor, if the respondent is an elective
official of a component city or municipality; or
(3) By the mayor, if the respondent is an elective
official of the barangay.
x x x. (underscoring ours)
Petitioner has not shown any valid and compelling reason
why, without waiting for the Governors action on the
matter, he immediately filed with the Court of Appeals a
petition for certiorari. By doing so, petitioner
effectively deprived the Governor of his duty to take
appropriate action on the controversy.
RICARDO SANTOS and PAULA SANTOS WONG, Petitioners,
vs. ILUMINADA CRUZ, represented by Attorney-in-fact GLORIA
ISRAEL, JUDGE FRANCISCO LINDO, MeTC, Branch 55, Malabon
City, Respondents.
we further stressed that a writ of certiorari is a
prerogative writ, never demandable as a matter of right,
never issued except in the exercise of judicial
discretion. Hence, he who seeks a writ of certiorari must
apply for it only in the manner and strictly in accordance
with the provisions of the law and the Rules. Petitioner
may not arrogate to himself the determination of whether a
motion for reconsideration is necessary or not. To
dispense with the requirement of filing a motion for
reconsideration, petitioner must show a concrete,
compelling, and valid reason for doing so.
In the case at bar, petitioners did not file a prior
motion for reconsideration from the decision of the trial
court. Even as they alleged in the petition that the lower
court acted without jurisdiction when it rendered a
decision without due process in the proceedings, the
averment of facts was incomplete.
Moreover, the instant petition for certiorari should have
been filed with the Court of Appeals pursuant to the
doctrine of hierarchy of courts. Disregard of this rule
warrants the dismissal of the petition. While the Courts
original jurisdiction to issue a writ of certiorari is
concurrent with the Regional Trial Courts and the Court of
Appeals in certain cases, such concurrence does not allow
an unrestricted freedom of choice of court forum.15
Petitioners have not alleged sufficient ground why direct
recourse to this Court should be allowed. Thus, we
reaffirm the established rule that this Court will not
JURISPRUDENCE 9
entertain a direct appeal unless the redress desired
cannot be obtained in the appropriate courts, and
exceptional and compelling circumstances justify the
resort to the extraordinary remedy of writ of certiorari.
ROSALINO P. ACANCE, in his capacity as Attorney-in-Fact,
Administrator of property and as counsel of SPOUSES
JESULITO P. ACANCE and VILMA ACANCE, SPOUSES MANUEL P.
ACANCE and GUIA ACANCE, and SPOUSES NESTOR P. ACANCE and
LYNNE ACANCE, petitioners, vs. COURT OF APPEALS, SPOUSES
YOLANDA QUIJANO TRIA and AMBROCIO TRIA, SPOUSES EPIFANIA
QUIJANO and RAPHAEL VILLANUEVA, and SPOUSES NAPOLEON
PAGLICAWAN QUIJANO and PILAR Z. QUIJANO, represented by
their attorney-in-fact, ENGR. JULIUS VILLANUEVA,
respondents.
The rule is well settled that the filing of a motion for
reconsideration is an indispensable condition to the
filing of a special civil action for certiorari.[2]
However, this rule admits of exceptions including:
(a) where the order is a patent nullity, as where the
court a quo has no jurisdiction;
(b) where the questions raised in the certiorari
proceedings have been duly raised and passed upon by the
lower court, or are the same as those raised and passed
upon in the lower court;
(c) where there is an urgent necessity for the resolution
of the question and any further delay would prejudice the
interests of the Government or of the petitioner or the
subject matter of the action is perishable;
(d) where, under the circumstances, a motion for
reconsideration would be useless;
(e) where petitioner was deprived of due process and there
is extreme urgency for relief;
(f) where, in a criminal case, relief from an order of
arrest is urgent and the granting of such relief by the
trial court is improbable;
(g) where the proceedings in the lower court are a nullity
for lack of due process;
(h) where the proceedings was ex parte or in which the
petitioner had no opportunity to object; and
(i) where the issue raised is one purely of law or public
interest is involved.[3]
LIBERTY INSURANCE CORPORATION, petitioner, vs.THE
HONORABLE COURT OF APPEALS, HON. NAPOLEON K. FLOJO,
Presiding Judge of Branch II, RTC Manila; ATILLA ARKIN,
the CITY SHERIFF OF MANILA, the REGISTER OF DEEDS OF
MANILA and the REGISTER OF DEEDS OF MAKATI, METRO MANILA,
respondents.
Ordinarily, certiorari will not lie unless an inferior
court, through a motion for reconsideration, had been
given an opportunity to correct the imputed errors.
However, this rule admits of exceptions such as 1) when
the issue raised is one purely, of law; 2) where public
interest is involved; 3) in cases of urgency (Quirino vs.
Grospe, 169 SCRA 702 [1989]); or 4) where special
circumstances warrant immediate or more direct action
(People vs. Dacudao, 170 SCRA 489 [1989]).
In the case at bar, petitioner's failure to file a motion
for reconsideration in the trial court before commencing
certiorari proceedings in the Court of Appeals is not
fatal considering the existence of special circumstances
that warrant immediate and more direct action (Saldaa vs.
CA, 190 SCRA 396 [1990]).
Filing a motion for reconsideration would have served no
useful purpose nor can it be considered a plain, speedy
and adequate remedy since the order directing the sheriff
to discharge or lift the writ of attachment was issued on
the same day the order granting the quashal was made
JURISPRUDENCE 10

CARMELITA V. LIM and VICARVILLE REALTY and DEVELOPMENT
CORPORATION, Petitioners, vs.
HON. BENJAMIN T. VIANZON in his capacity as the Presiding
Judge of Branch 1 of the Regional Trial Court of Bataan
and VALENTIN GARCIA and CONCEPCION GARCIA, Respondents.
PREMATURE FILING OF Certiorari
On the procedural aspect, we find that petitioners
disregarded the doctrine of judicial hierarchy which we
enjoin litigants and lawyers to strictly observe. The
Courts original jurisdiction to issue writs of
certiorari, as in the case at bar, prohibition, mandamus,
quo warranto, habeas corpus and injunction is shared by
this Court with the Regional Trial Courts and the Court of
Appeals. A direct invocation of the Supreme Courts
original jurisdiction to issue these writs should be
allowed only when there are special and important reasons
therefor, clearly and specifically set out in the
petition. This is an established policy necessary to avoid
inordinate demands upon the Courts time and attention
which are better devoted to those matters within its
exclusive jurisdiction, and to preclude the further
clogging of the Courts docket. 31
Moreover, the instant petition is procedurally flawed as
it is not accompanied by copies of relevant pleadings
mandated by the second paragraph of Section 1, Rule 65 of
the 1997 Rules of Civil Procedure. Said provision reads as
follows:
SECTION 1. Petition for certiorari. When any tribunal,
board or officer exercising judicial or quasi-judicial
functions has acted without or in excess of its or his
jurisdiction, or 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.
Specifically, as pointed out by respondents, the instant
petition is not accompanied by copies of the Motion to
Dismiss and Motion for Reconsideration that petitioners
filed with the trial court. These are documents important
for the Courts appraisal, evaluation and judicious
disposition of the case. Failing to fully apprise the
Court of the relevant details of the case, we find this
egregious error a sufficient cause for the dismissal of
the instant petition. As held in Santiago, Jr. v Bautista,
34 to wit:
x x x the lower courts holding that appellants failure
to accompany his petition with a copy of the judgment or
order subject thereof together with copies of all
pleadings and documents relevant and pertinent thereto "is
fatal to his cause" is supported not only by the provision
of that Rule but by precedents as well
MIRIAM DEFENSOR-SANTIAGO vs. CONRADO M. VASQUEZ,
Ombudsman; GUALBERTO J. DE LA LLANA, Special Prosecutor;
SANDIGANBAYAN and REGIONAL TRIAL COURT OF MANILA,
respondents.
. We discern in the proceedings in this case a propensity
on the part of petitioner, and, for that matter, the same
may be said of a number of litigants who initiate
recourses before us, to disregard the hierarchy of courts
in our judicial system by seeking relief directly from
this Court despite the fact that the same is available in
the lower courts in the exercise of their original or
concurrent jurisdiction, or is even mandated bylaw to be
sought therein. This practice must be stopped, not only
because of the imposition upon the precious time of this
Court but also because of the inevitable and resultant
delay, intended or otherwise, in the adjudication of the
case which often has to be remanded or referred to the
lower court as the proper forum under the rules of
procedure, or as better equipped to resolve the issues
since this Court is not a trier of facts. We, therefore,
reiterate the judicial policy that this Court will not
entertain direct resort to it unless the redress desired
cannot be obtained in the appropriate courts or where
exceptional and compelling circumstances justify availment
JURISPRUDENCE 11
of a remedy within and calling for the exercise of our
primary jurisdiction.
For the guidance of the bench and the bar, we elucidate
that such policy includes the matter of petitions or
motions involving hold departure orders of the trial or
lower courts. Parties with pending cases therein should
apply for permission to leave the country from the very
same courts which, in the first instance, are in the best
position to pass upon such applications and to impose the
appropriate conditions therefor since they are conversant
with the facts of the cases and the ramifications or
implications thereof. Where, as in the present case, a
hold departure order has been issued ex parte or motu
propio by said court, the party concerned must first
exhaust the appropriate remedies therein, through a motion
for reconsideration or other proper submissions, or by the
filing of the requisite application for travel abroad.
Only where all the conditions and requirements for the
issuance of the extraordinary writs of certiorari,
prohibition or mandamus indubitably obtain against a
disposition of the lower courts may our power of
supervision over said tribunals be invoked through the
appropriate petition assailing on jurisdictional or
clearly valid grounds their actuations therein.
EMBASSY OF THE ISLAMIC REPUBLIC OF IRAN AND SIROS SOLATI,
Petitioners, v. FOP CORPORATION, FELIX O. PONTINO, AND
JOVER D. PONTINO, Respondents.
Sec. 4.When and where petition filed. --- The petition
shall be filed not later than sixty (60) days from notice
of the judgment, order or resolution. In case a motion for
reconsideration or new trial is timely filed, whether such
motion is required or not, the sixty (60) day period shall
be counted from notice of the denial of said motion.
[Emphasis supplied]
The petition shall be filed in the Supreme Court or, if it
relates to the acts or omissions of a lower court or of a
corporation, board, officer or person, in the Regional
Trial Court exercising jurisdiction over the territorial
area as defined by the Supreme Court. It may also be filed
in the Court of Appeals whether or not the same is in aid
of its appellate jurisdiction, or in the Sandiganbayan if
it is in aid of its appellate jurisdiction. If it involves
the acts or omissions of a quasi-judicial agency, unless
otherwise provided by law or these Rules, the petition
shall be filed in and cognizable only by the Court of
Appeals.
No extension of time to file the petition shall be granted
except for compelling reason and in no case exceeding
fifteen (15) days.
In Systems Factors Corporation v. NLRC ,8 this Court
declared that the amendment introduced under A.M. No. 00-
2-03-SC is procedural or remedial in character, as it does
not create new or remove vested rights, but only operates
in furtherance of the remedy or confirmation of rights
already existing. Procedural laws may be given retroactive
effect to actions pending and undetermined at the time of
their passage, there being no vested rights in the rules
of procedure. In the present case, when the amendment
providing that when a motion for reconsideration or new
trial is filed, the sixty (60) day period shall be counted
from notice of the denial of said motion took effect on
September 1, 2000, the Petition for Certiorari before the
CA was still pending and undetermined.
MANDAMUS
(OLAN vs. COURT OF APPEALS; G.R. No. 116109. September 14,
1999)
Writ of mandamus is not the proper remedy to compel a
court to grant a new trial on the ground of newly
discovered evidence. 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.
JURISPRUDENCE 12
(ANGCHANGCO vs. OMBUDSMAN; G.R. No. 122728. February 13,
1997)
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.
(BPI vs. Manikan; G.R. NO. 148789. January 16, 2003)
In order that a writ of mandamus may aptly issue, it is
essential that, on the one hand, the person petitioning
for it has a clear legal right to the claim that is sought
and that, on the other hand, the respondent has an
imperative duty to perform that which is demanded of him.
The principal function of the writ of mandamus is to
command and to expedite, not to inquire and to adjudicate;
thus, it is neither the office nor the aim of the writ to
secure a legal right but to implement that which is
already established. Unless the right to the relief sought
is unclouded, mandamus will not issue.
(MANALO vs. PAIC SAVINGS BANK; G.R. No. 146531. March 18,
2005)
Mandamus applies as a remedy only where petitioners right
is founded clearly in law and not when it is doubtful. In
varying language, the principle echoed and reechoed is
that legal rights may be enforced by mandamus only if
those rights are well-defined, clear and certain. mandamus
cannot be availed of as a remedy to enforce the
performance of contractual obligations.
RULE 66 QUO WARRANTO
RULE 67 EXPROPRIATION
RULE 68 Foreclosure of REM
KOREA EXCHANGE BANK, petitioner,
vs.
FILKOR BUSINESS INTEGRATED, INC., KIM EUNG JOE, and LEE
HAN SANG, respondents.
It was an action for foreclosure of a real estate mortgage.
Petitioners allegations in its complaint, and its prayer
that the mortgaged property be foreclosed and sold at
public auction, indicate that petitioners action was one
for foreclosure of real estate mortgage.
In petitioners complaint before the trial court,
petitioner alleges:
To secure payment of the obligations of
defendant Corporation under the First to the
Twenty-Seventh Cause of Action, on February 9,
1996, defendant Corporation executed a Real
Estate Mortgage by virtue of which it mortgaged
to plaintiff the improvements standing on Block
13, Lot 1, Cavite Export Processing Zone,
Rosario, Cavite, belonging to defendant
Corporation covered by Tax Declaration No.
5906-1 and consisting of a one-story building
called warehouse and spooling area, the
guardhouse, the cutting/sewing area building
and the packing area building. (A copy of the
Real Estate Mortgage is attached hereto as
Annex SS and made an integral part hereof.)
This allegation satisfies in part the requirements of
Section 1, Rule 68 of the 1997 Rules of Civil Procedure
on foreclosure of real estate mortgage, which provides:
SECTION 1. Complaint in action for
foreclosure. In an action for the
foreclosure of a mortgage or other encumbrance
upon real estate, the complaint shall set
forth the date and due execution of the
mortgage; its assignments, if any; the names
and residences of the mortgagor and the
mortgagee; 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
JURISPRUDENCE 13
 and residences of all persons having or
claiming an interest in the property
subordinate in right to that of the holder of
the mortgage, all of whom shall be made
defendants in the action.
Petitioners action being one for foreclosure of real
estate mortgage the trial should have ordered the
foreclosure and public auction of the mortgaged property
in the event that respondent Filkor fails to pay its
outstanding obligations.
SPOUSES RICARDO ROSALES and ERLINDA SIBUG, Petitioners,
vs.
SPOUSES ALFONSO and LOURDES SUBA, THE CITY SHERIFF OF
MANILA, Respondents.
Whether or not the debtor-mortgagor can exercise the right
of redemption in judicial foreclosure.
No. There is no right of redemption in judicial foreclosure.
What can be exercised is equity of redemption.
Equity of redemption is simply the right of the 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 of the Rules of Court, or even after the foreclosure sale
but prior to its confirmation by the court (prior to the
courts confirmation of the sale).
In this case, unfortunately, the spouses Rosales never
exercised their equity of redemption.
When can equity of redemption be exercised?
The mortgagor may exercise his equity of redemption 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.
Are there any exceptions to the rule that there is no right
of redemption in judicial foreclosure?
Yes, the only exemption is when the mortgagee is the
Philippine National Bank or a bank or a banking institution.
In such cases, the mortgagor can exercise the right of
redemption.
RULE 69 PARTITION
Jurisprudentially entrenched is the rule that a
judgment ordering partition with damages is final and duly
appealable, notwithstanding the fact, which petitioner
seeks to capitalize on, that further proceedings will still
have to take place in the trial court.
There are two stages involved in the special civil
action of judicial partition and accounting under Rule 69
of the Rules of Court:
The first stage of an action for judicial
partition and/or accounting is concerned with the
determination of whether or not a co-ownership in fact
exists and a partition is proper, that is, it is not
otherwise legally proscribed and may be made by
voluntary agreement of all the parties interested in
the property. This phase may end in a declaration that
plaintiff is not entitled to the desired partition
either because a co-ownership does not exist or a
partition is legally prohibited. It may also end, on
the other hand, with an adjudgment that a co-ownership
does in truth exist, that partition is proper in the
premises, and that an accounting of rents and profits
received by the defendant from the real estate in
question is in order. In the latter case, "the parties
may, if they are able to agree, make partition among
themselves by proper instruments of conveyance, and
the court shall confirm the partition so agreed upon
by all the parties." In either case, whether the
action is dismissed or partition and/or accounting is
decreed, the order is a final one and may be appealed
by any party aggrieved thereby.
The second stage commences when the parties are
unable to agree upon the partition ordered by the
court. In that event, partition shall be effected for
the parties by the court with the assistance of not
more than three (3) commissioners. This second phase
may also deal with the rendition of the accounting
JURISPRUDENCE 14
 itself and its approval by the Court after the parties
have been accorded the opportunity to be heard
thereon, and an award for the recovery by the party
or parties thereto entitled of their just shares in
the rents and profits of the real estate in question.
Such an order is, to be sure, also final and
appealable.
In the decision ordering partition, the execution of that
part of the judgment which will not necessitate any
further proceedings may be enforced. Further proceedings,
such as the appointment of commissioners to carry out the
partition and the rendition and approval of the
accounting, may be had without prejudice to the execution
of that part of the judgment which needs no further
proceedings. Thus, it has been held that execution was
entirely proper to enforce the defendant's obligation to
render an accounting and to exact payment of the money
value of the plaintiffs' shares in the personal property
and attorney's fees due defendants, as well as the costs
of the suit and damages.
CONCEPCION V. VDA, DE DAFFON vs. THE HONORABLE COURT OF
APPEALS, LOURDES OSMEA VDA, DE DAFFON, AILEEN DAFFON,
JOSELITO DAFFON, JR., ANA VANESA DAFFON, LEILA DAFFON and
SUZETTE DAFFON.
The rules of procedure require that the complaint must
make a concise statement of the ultimate facts or the
essential facts constituting the plaintiff's cause of
action. A fact is essential if it cannot be stricken out
without leaving the statement of the cause of action
inadequate. A complaint states a cause of action only when
it has its three indispensable elements, namely: (1) a right
in favor of the plaintiff by whatever means and under
whatever law it arises or is created; (2) an obligation on
the part of the named defendant to respect or not to violate
such right; and (3) an act or omission on the part of such
defendant violative of the right of plaintiff or
constituting a breach of the obligation of defendant to the
plaintiff for which the latter may maintain an action for
recovery of damages.
The allegations contained therein are sufficient to
establish respondents' right to the estate of Amado Daffon.
By stating their relationship to the deceased, they
established their line of succession as the basis for their
claim. Their rights to succeed as heirs were transmitted
from the moment of death of the decedent.
RULE 70 FE and UD
PRECY BUNYI and MILA BUNYI VS. FE S. FACTOR
In ejectment cases, the only issue for resolution is who is
entitled to the physical or material possession of the
property involved, independent of any claim of ownership
set forth by any of the party-litigants. The one who can
prove prior possession de facto may recover such possession
even from the owner himself.[15] Possession de facto is the
physical possession of real property. Possession de
facto and not possession de jure is the only issue in a
forcible entry case.[16] This rule holds true regardless of
the character of a partys possession, provided, that he
has in his favor priority of time which entitles him to
stay on the property until he is lawfully ejected by a
person having a better right by either accion
publiciana or accion reivindicatoria.
For one to be considered in possession, one need not
have actual or physical occupation of every square inch of
the property at all times.[18] Possession can be acquired not
only by material occupation, but also by the fact that a
thing is subject to the action of ones will or by the
proper acts and legal formalities established for acquiring
such right.[19] Possession can be acquired by juridical
acts. These are acts to which the law gives the force of
acts of possession. Examples of these are
donations, succession, execution and registration of public
instruments, and the inscription of possessory information
titles.
The right of respondents predecessors over the subject
property is more than sufficient to uphold respondents
right to possession over the same. Respondents right to
the property was vested in her along with her siblings from
the moment of their fathers death.[23] As heir, respondent
had the right to the possession of the property, which is
JURISPRUDENCE 15
one of the attributes of ownership. Such rights are enforced
and protected from encroachments made or attempted before
the judicial declaration since respondent acquired
hereditary rights even before judicial declaration in
testate or intestate proceedings.
ROSANNA B. BARBA,
vs.COURT OF APPEALS, TEODORA GARCIA, TESS GARCIA, SEVILLA
GARCIA, RODRIGO SALAZAR, and ABRAHAM VELASQUEZ,
While it is true that in forcible entry and unlawful
detainer cases, jurisdiction is determined by the nature of
the action as pleaded in the complaint,6 a simple allegation
that defendant is unlawfully withholding possession from
plaintiff is sufficient. In an unlawful detainer case, the
defendants possession was originally lawful but ceased to
be so by the expiration of his right to possess.7 Hence, the
phrase "unlawful withholding" has been held to imply
possession on the part of defendant, which was legal in the
beginning, having no other source than a contract, express
or implied, and which later expired as a right and is being
withheld by defendant.8
Where the cause of action is unlawful detainer, prior
possession is not always a condition sine qua non.10 A
complaint for unlawful detainer should be distinguished from
that of forcible entry. In forcible entry, the plaintiff
has prior possession of the property and he is deprived
thereof by the defendant through force, intimidation,
threat, strategy or stealth. In an unlawful detainer, the
defendant unlawfully withholds possession of the property
after the expiration or termination of his right thereto
under any contract, express or implied; hence, prior
physical possession is not required.11 This is especially so
where a vendee seeks to obtain possession of the thing sold.
LABRADOR VS. BUGARIN
an action for forcible entry is a quieting process
and the one year time bar for filing a suit is in pursuance
of the summary nature of the action. Thus, we have nullified
proceedings in the MTCs when it improperly assumed
jurisdiction of a case in which the unlawful deprivation or
withholding of possession had exceeded one year. After the
lapse of the one year period, the suit must be commenced in
the RTC via an accion publiciana, 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 independently of title. Likewise,
the case may be instituted before the same court as
an accion reivindicatoria, which is an action to recover
ownership as well as possession.[14]
Corrollarily, jurisdiction of a court is determined
by the allegations of the complaint. Thus, in ascertaining
whether or not the action falls within the exclusive
jurisdiction of the inferior courts, the averments of the
complaint and the character of the relief sought are to be
examined.
It is clear that petitioners averment make out a case for
forcible entry because she alleged prior physical possession
of the subject lot way back in 1976, and the forcible entry
thereon by respondent. Considering her allegation that the
unlawful possession of respondent occurred two
years[17] prior to the filing of the complaint on January 18,
1996, the cause of action for forcible entry has prescribed
and the MTC had no jurisdiction to entertain the case.
Petitioners complaint therefore should have been filed with
the proper RTC
JURISPRUDENCE 16