PROVISIONAL REMEDIES PBC vs CA, 352 SCRA 616 –

Rules on the issuance of a writ of attachment must be construed strictly against the
PRELIMINARIES applicants.

PROVISIONAL REMEDIES – writs and processes available during the pendency of the
action which may be resorted to by a litigant to preserve and protect his rights and
interests therein, pending rendition, and for the purpose of ultimately affecting a final
judgment in the case.
Nature of provisional remedies
- Provisional means temporary, preliminary or tentative
- Provisional remedies are temporary, auxiliary, and ancillary remedies available to a litigant
for the protection and preservation of his rights while the main action is pending. They are
writs and processes which are not main actions and they presuppose the existence of a
principal action.
Purpose of PA –
Preliminary attachment is designed to:
1. Seize the property of the debtor before final judgment and put the same in custodia
legis even while the action is pending for the satisfaction of a later judgment;
2. To enable the court to acquire jurisdiction over the res of the action in cases where
service in person or any other service to acquire jurisdiction over the defendant
cannot be effected.
Can the order granting a writ of attachment be subject of an appeal?
Olsen vs Olsen 48 SCRA 238 –

Purpose of provisional remedies An order denying a motion for the annulment of a preliminary attachment may be reviewed in
- To preserve and protect their rights or interest while the main action is pending an appeal taken from the final judgment rendered in the principal case; thus:
- To secure the judgment
- To preserve the status quo GR: the order of the judge denying a motion for annulment of a writ of preliminary
- To preserve the subject matter of the action attachment, being of an incident or interlocutory and auxiliary character, cannot be the
subject of an appeal independently from the principal case, because our procedural law now
Court which grants provisional remedies in force authorizes an appeal only from a final judgment.
- The court which grants or issues a provisional remedy is the court which has jurisdiction
over the main action. Exception: when the writ of preliminary attachment becomes final by virtue of a final
judgment rendered in the principal case, said writ is subject to review jointly with the
What are the different provisional remedies under the Rules of Court? judgment rendered in the principal case through an ordinary appeal.
1. Preliminary attachment (Rule 57)
2. Preliminary injunction (Rule 58) Sec.1. Grounds upon which attachment may issue –
3. Receivership (Rule 59)
4. Replevin (Rule 60) When to file?
5. Support Pendente Lite (Rule 61)
At the commencement of the action or at any time before entry of judgment (before
RULE 57 judgment become final and executory)
PRELIMINARY ATTACHMENTS
Who could file?
Nature of preliminary attachment
- the plaintiff or any party may have the property of the adverse party attached as
1. Provisional remedy issued by the court placing the property under custodial legis as security for the satisfaction of any judgment that may be recovered
security for the satisfaction of whatever judgment may be rendered in the case.
2. Not a separate and distinct proceeding; accessory to the principal action.
3. Nature of proceeding is quasi-in rem; jurisdiction over the person of the defendant Borja vs Platon 73 Phil 659 –
is not required so long as the court acquires jurisdiction over the res A writ of preliminary attachment may be issued in favor of a defendant who sets up a
4. Attachment is purely statutory remedy counterclaim.
5. Availed by both the plaintiff and defendant
Facts:
(GBI vs Sanchez 98 Phil 886)
The merits of the main actions are not triable in a motion to discharge an attachment (or in a Petitioner brought a civil action in the CFI to annul a second sale by Francisco de Borja to
motion for writ of preliminary attachment) Romero and to recover damages. Defendant filed an answer with counterclaims. Based on
their counterclaims, defendant also applied for a writ of preliminary attachment. Petitioner
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contends that no writ of attachment can be issued in favor of a defendant who presents a
counterclaim.
Issue: whether a defendant who presents a counterclaim can apply for a writ of preliminary
attachment.
Ruling:
The SC finds plaintiff’s contention without merit. A writ of preliminary attachment may be
issued in favor of a defendant who sets up a counterclaim. Under the Rule, a plaintiff or any
proper party may have the property of the adverse party attached as security for the
satisfaction of any judgment. thus, it is immaterial whether defendants simply presented a
counterclaim or brought a separate civil action against plaintiff herein.
Grounds (exclusive in nature):
a. In an action for the recovery of a specified amount of money or damages, other than
moral and exemplary, on a cause of action arising from law, contract, quasi-contract,
delict or quasi-delict against a party who is about to depart from the Philippines with
intent to defraud his creditors;
Professional Video vs TESDA 591 SCRA 83 –
Principle: Funds public in nature cannot be the valid subject of a writ of garnishment
proceedings even if the consent to be sued had been previously granted and the state
liability adjudged.
FACTS:
Petitioner PROVI entered into with TESDA a negotiated contract supplying the latter materials
for the production Identification Cards. The contract left with an outstanding unpaid balance,
thus, prompted petitioner to file case with the RTC for the recovery of a sum of money with
damages and additionally prayed for a writ of preliminary attachment/garnishment against
TESDA. Petitioner contends that TESDA is no longer immune from suit because it entered into
a contract in its private capacity.
The RTC grants and issued the writ of preliminary attachment against TESDA.
TESDA on the other hand moves for the quashal of writ of attachment on the ground that
public funds
cannot be subject of garnishment. Further argues that it entered into an agreement in the
performance of its governmental function.
ISSUE: Whether TESDA’s funds be exempt from execution, attachment or garnishment.
HELD:
Attachment, a harsh remedy, must be issued only on concrete and specific grounds and not on
general averments merely quoting the words of the pertinent rules.
TESDA’s funds are public in character, hence exempt from attachment or garnishment.
TESDA’s funds are still public in nature and, thus, cannot be the valid subject of a writ of
garnishment or attachment. Public funds cannot be the object of garnishment proceedings
even if the consent to be sued had been previously granted and the state liability adjudged.
Insular Savings Bank vs CA, 460 SCRA 122-
A writ of attachment cannot be issued for moral and exemplary damages and other
unliquidated or contingent claims.
FACTS:
Responhdent FEBTC instituted an arbitration case before Arbitration committee of the
Philippine Clearing House Corporation against petitioner Insular Saving Banks for unfunded
checks amounting to P25,200,000.00 which were drawn against respondent Bank and were
presented by petitioner for clearing. Before the arbitration committee of the PCHC, FEBTC and
Insular Bank agreed to equally divide between themselves the disputed amount subject to the
outcome of the arbitration proceeding. As a result thereof, the sum of 12,600,000 (amount
already secured) is in the possession of FEBTC. In the pendency of the abitration case, FEBTC
instituted a civil case and prayed for the issuance of a writ of preliminary attachment which
was subsequently granted upon posting by respondent Bank of an attachment bond.
Thereafter, Insular Savings Bank filed a motion to discharge attachment by counter-bond in
the amount of P12,600,000. the respondent judge denied the motion because the counter-
bond is insufficient; that it should be in the amount of 27,237,700 which should include
unliquidated claims, attorney’s fees and exemplary damages, legal interest and expenses of
litigations.
ISSUES: Whether writ of attachment can be issued for moral and exemplary damages and
other unliquidated and contingent claim.
HELD:
A writ of attachment cannot be issued for moral and exemplary damages, and other
unliquidated or contingent claims.
b. In an action for money or property embezzled or fraudulently misapplied or converted
to his own use by a public officer, or an officer of a corporation, or an attorney, factor,
broker, agent or clerk, in the course of his employment as such, or by any other person
in a fiduciary capacity, or for a willful violation of duty;
Olsen vs Olsen, 48 Phil 238
Abuse of confidence by a corporate officer shown by his act of taking money of the
corporation for his personal use without being duly authorized therefor constitutes a
ground for the issuance of a preliminary attachment.
FACTS:
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The evidence shows that the defendant-appellant Water Olsen was President-Treasurer and
general manager of the Plaintiff-appellee corporation (Walter E. Olsen &Co.) and exercised
direct and almost exclusive supervision over its function, funds and books of account untile
about the month of August, 1921. During that time he has been taking money of the
corporation without being duly authorized to do so either by the board of directors or by the
by-laws, the money taken by him having amounted to the considerable sum of P66,207.62. Of
this sum, 19,000 was invested in the purchase of the house and lot now under attachment in
this case, and 50,000 in the purchase of 500 shares of stock of prising at the prioce of 100 per
share for himself and Marker. A few days afterwards he began to sell the ordinary shares of
the corporation for 430 each. The defendant-appellant attempted to justify his conduct,
alleging that the withdrawal of the funds of the corporation for his personal use was made in
his current account with said corporation, in whose treasury he deposited his own money and
the certificates of title of his shares, as well as of his estate, and that at the that at the first
meeting of the stockholders, a statement of his account with a debit balance was submitted
and approved.
ISSUE: Whether the facts narrated be a ground for the issuance of a writ of preliminary
attachment.
HELD:
Yes. The facts narrated falls within sec. 1 (b) rule 57, hence, a writ of preliminary attachment
may issue.
Furthermore, the defendant appellant has almost an exclusive control over the function of the
corporation and its funds on account of his triple capacity as president, treasurer and general
manager must be very scrupulous in the application of the funds of said corporation to his
own use. The act of taking money of the corporation for his personal use without being duly
authorized therefor constitutes such an irregularity that, while it does not amount to a
criminal fraud, is undoubtedly a fraud of a civil character, because it is an abuse of confidence
and constitutes a ground for the issuance of a preliminary attachment.
Professional video vs TESDA, 591 SCRA 83 –
Absent any actual disbursement, these funds form part of and TESDA’s public funds, and
TESDA’s failure to pay PROVI the amount stated in the certificate cannot be construed as
an act of fraudulent misapplication or embezzlement.
c. In an action to recover the possession of property unjustly or fraudulently taken,
detained or converted, when the property , or any party thereof, has been concealed,
removed or disposed of to prevent its being found or taken by the applicant or an
authorized person;
This ground compared to replevin:
 In replevin, the objective is to recover the possession of personal property only;
 That the personal property was WRONFULLY detained by the adverse party
 That the personal property has not been placed under custodial egis
d. In action against a party who has been guilty of a fraud in contracting the debt or
incurring the obligation upon which the action is brought, or in the performance
thereof;
Liberty Insurance Corp vs C, February 23, 2001 –
To sustain an attachment on the ground that a party is guilty of fraud in contracting the
debt (sec.1(d) Rule 57) to defraud the creditor. The fraud must:
1. Relate to the execution of the agreement
2. Must have been the reason which induced the other party into giving consent
which he would not have otherwise given
3. Be committed upon contracting the obligation sued upon
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.
Ng wee vs Tankiansee 545 SCRA 263
The applicant must sufficiently show the factual circumstances of the alleged fraud because
fraudulent intent cannot be inferred from the debtor’s mere non-payment of the debt or
failure to comply with his obligation.
The affidavit, being the foundation of the writ, must contain such particulars as to how the
fraud imputed to respondent was committed for the court to decide whether or not to issue
the writ. Absent any statement of other factual circumstances to show that the respondent, at
the time of contracting the obligation, had a preconceived plan or intention not to pay, or
without any showing of how respondent committed the alleged fraud, the general averment
in the affidavit that respondent is an officer and director of Wincorp who allegedly connived
with the other defendants to commit a fraud, is insufficient to support the issuance of a writ
of preliminary attachment.
The rules governing its issuance are strictly construed against the applicant.
FCY Corp vs CA, 324 SCRA 270
Facts: X filed a complaint for collection of sum of money with application for preliminary
attachment against Y(FCY) with the RTC. In support of its application for writ of attachment X
alleged that Y is guilty of fraud in incurring the obligation and had fraudulently misapplied the
money paid to him, to which he had an equal share.
The RTC granted the writ of preliminary attachment. Y filed a motion to lift the attachment
but the court denied the motion. Is the RTC correct?
Ans: Yes. The RTC is correct in denying the motion.
A debt is fraudulently contracted if at the time of contracting it the debtor has a preconceived
plan or intention not to pay.
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When a preliminary attachment is issued upon a ground which is at the same time the
applicant’s cause of action: e.g. an action against a party who has been guilty of fraud in
contracting the debt or incurring the obligation upon which the action is brought; the
defendant is not allowed to file a motion to dissolve the attachment otherwise the hearing on
such motion for dissolution of the writ would be tantamount to a trial on the merits. The only
way it can be dissolved is by a counterbond.
e. In an action against a party who has removed or dispose of his property or is about to
do so, with intent to defraud his creditors; or
Aboitiz vs Cotabato, 105 SCRA 88
Insolvency is not a proper ground for issuance of a writ of attachment.
FACTS:
A verified complaint was filed by petitioner Abotiz for the collection of money with a
corresponding writ of preliminary attachment. The writ of attachment was issued by the trial
court on the ground that the defendant has removed or disposed of its properties or assets, or
is about to do so, with intent to defraud its creditors. But the SC found out that insolvency is
the ground for the issuance of the writ of attachment which can be inferred form the
emphasis laid by petitioner particularly from the bank account which has been reduced to nil
(zero).
The trial court issued the writ of attachment. The appellate court declared the writ of
attachment null and void.
ISSUE: Whether the issuance of writ of attachment is proper.
HELD:
FACTS:
Petitioner Alian filed a complaint against respondent Elaine, for damages and attorneys’ fees
allegedly sustained by him by reason of the filing by respondent of the criminal complaint for
estafa, solely for the purpose of embarrassing his honor and reputation. In the complaint,
petitioner prayed for the issuance of a writ of preliminary attachment of the properties of
respondent on the ground that respondent is a non-resident of the Philippines. Respondent
move to dissolve or lift the writ of attachment on the ground that petitioner’s claim was for
unliquidated damages.
ISSUE: Whether writ of attachments covers unliquidated damages.
HELD:
The attachment issued is null and void. Application for attachment on the ground that a party
does not reside and is not found in the Philippines or on whom summons may be served by
publication, applies where plaintiff’s claim is for liquidated damages, not to unliquidated
damages.
Sec.2. Issuance and contents of order –
How writ of attachment issued?
An order of attachment may be issued either ex parte or upon motion with notice and
hearing.
Who issues a writ of attachment:
1. By the court in which the action is pending
2. By the court of appeals, or
3. By the Supreme Court

The SC court denied the petition, saying: What are the contents of the order of attachment?
Insolvency is not a proper ground for issuance of a writ of attachment.
The facts of the case do not warrant the issuance of the writ of attachment. It is an undisputed 1. Require the sheriff to attached:
fact that, as averred by petitioner itself, the several buses attached are nearly junks. However, a. The property in the Philippines of the party against whom the order is issued,
upon permission by the sheriff, five of them were repaired, but they were substituted with not exempt from execution, sufficient to satisfy the applicant’s demand
five buses which were also in the same condition as the five repaired ones before the repair. Properties exempt from execution:
This cannot be the removal intended as ground for the issuance of a writ of attachment under 1. Public funds
sec.1(e), Rule 57 of the Rules of Court. The repair of the five buses was evidently motivated by 2. Family home
a desire to serve the interest of the riding public, clearly not to defraud its creditors, as there 3. Professional libraries not exceeding the value of 300,000
is no showing that they were not put on the runt after their repairs, as was the obvious 4. And those mention in sec.13 rule 39 of the rules of court
purpose of their substitution to be place in running condition. 2. The sheriff may not attached the property if:
a. the adverse party makes deposits or gives a bond in amount equal to that fixed
f. In an action against a party who does not reside and is not found in the Philippines, or in the order, exclusive of cost.
on whom summons may be served by publications.
Toledo vs Burgos 168 SCRA 513
Miailhe vs De Lencquesaing 142 SCRA 694
There is no need for a judge to set a hearing on the application for a writ of attachment
Sec.1 (f) of Rule 57 of the Rules of court applies where plaintiff’s claim is for liquidated because the issuance of a writ of preliminary attachment may be made by the Court ex
damages, not to unliquidated damages.
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parte. Moreover, the judge before whom the application is made has full discretion in
considering the supporting evidence proferred by the applicant.
Facts:
An action for delivery of personal property was filed by petitioner against respondent but was
subsequently denied. Petitioner, subsequently applied for a writ of attachment alleging that
respondent has removed and has disposed or is about dispose of her property within intent to
defraud Toledo petitioner herein. To support the allegation, an affidavit of Rudolfo Inot was
attached to the application stating that respondent offered to sell to him 2 motor vehicles.
The Trial Court Judge denied the application without prior hearing and notice.
Issue: Whether the denial of the application is proper.
Ruling:
Respondent Judge acted correctly in denying petitioner’s Application for Issuance of a Writ of
Preliminary Attachment. There was no need for him to set a hearing on the said application.
This is because the issuance of a writ of preliminary attachment may be made by the Court
ex parte.
Davao Light vs CA, 204 SCRA 343
Attachment may be issued ex parte and even before summons is served upon the defendant.
However, the writ may not be enforced unless preceded by a service of summons upon the
defendant. Implementation of a writ of attachment without the required jurisdiction over his
person is null and void.
Sec.3. Affidavit and bond required –
Requirement before the issuance of an order of a writ of attachment by the court:
1. Affidavit of the applicant, or of some other person who personally knows the facts
2. Bond conditioned to recompense the adverse party all the costs of litigation 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.
Contents of the affidavit:
1. That a sufficient cause of action exists
2. The case is one of those mentioned on the grounds under sec. 1
3. No other sufficient security for the claim sought to be enforced by the action
4. That the amount due to the applicant, or the value of the property the possession of
which he is entitled to recover, is as much as the sum for which the order is granted
above all legal counterclaims
Bonds required under attachment:
1. Attachment or applicants bond
 For the issuance of the writ of PA
 Executed to the adverse party
 In the amount fixed by the court
 The bond shall answer for all damages incurred by the party against whom the
attachment is issued and sustained by him by reason of the attachment, If it be
finally adjudged that the party applying for attachment was not entitled thereto.
2. Counter-bond
 Executed to the applicant
 In an amount equal to the bond fixed by the court in the order of attachment, or to
the value of the property attached, exclusive of cost
 Purpose:
a. Shall secure the payment of any judgment that the attaching party may
recover in the action.
b. To discharge attachment
PBC vs CA, 352 SCRA 616
An order of attachment cannot be issued on a general averment, such as one ceremoniously
quoting from a pertinent rule.
Rules on the issuance of a writ of attachment must be construed strictly against the applicant.
Sec.4. Condition of applicant’s bond –
The party applying for the order must thereafter give a bond executed to the adverse party in
the amount fixed by the court in its order granting the issuance of the writ, conditioned that
the latter will pay all the costs which may be adjudged to the adverse party and all damages
which he may sustain by reason of the attachment, if the court shall finally adjudge that the
applicant was not entitled thereto.
Carlos vs Sandoval, 471 SCRA 266
This bond answers for all damages incurred by the party against whom that attachment was
issued and sustained by him by reason of the attachment, if it shall be finally adjudged that
the party applying for attachment was not entitled thereto.
Sec.5. Manner of attaching property –
When can the sheriff enforce a writ of preliminary attachment –
- After summons have been duly served upon the person of the defendant; otherwise
the implementation is null and void
- It presupposes from the situation that an order of writ has been issued to, received
by, the sheriff, together with the complaint and application for attachment
How should the sheriff implement the writ?
1. Shall without delay and with all reasonable diligence attach only the property of the
adverse party that are:
a. In the Philippines
b. Not exempt from execution
c. Sufficient to satisfy the claim
2. The sheriff will not attach if the adverse party:
a. Makes a deposit with the court from which the writ is issued in the amount
equal to the bond fixed by the court, exclusive of cost, or
b. Gives a counter-bond executed to the applicant in the amount equal to the
value of the property to be attached, exclusive of costs.
3. (sec.6. Sheriff’s return) after enforcing the writ, the sheriff must:
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 a. Without delay make a return to the court which issued the writ
b. The return shall have a full statement of:
 Proceedings under the writ
 Complete inventory of the property attached
 Any counter-bound given by the adverse party
c. The sheriffs shall Serve copies of the return on the applicant
GR: No Summons, No implementation of attachment -
The requirement of prior or contemporaneous service of summons shall not apply where:
2. Those not appearing at all upon the records, or belonging to the adverse party and
held by any other person, or standing on the records of the registry of deeds in the
name of any other person
Manner of attaching:
1. By filing a copy of the order, description of the property attached, and a notice that
it is attached with the REGISTRY OF DEEDS; and
2. By leaving a copy of such order, description, and notice with the OCCUPANT of the
property, if any, or with such other person or his agent if found within the province.

1. The summons could not be served personally or by substituted service of summons
despite diligent efforts;
Personal service – by handing a copy thereof to the defendant in person or if he refuses
to receive and sign for it, by tendering it to him
If the property subject to attachment has been brought under the operation of either LAND
REGISTRATION ACT or PROPERTY REGISTRATION DECREE:
 The NOTICE shall contain a reference to the number of:
a. The certificate of title, volume and page in the registration book where the
certificate is registered, and the registered owner or owners thereof

Substituted service – by leaving copies of the summons at the defendant’s residence with
some person of suitable age and discretion then residing therein, or by leaving a copies at PERSONAL PROPERTY
defendant’s office or regular place of business with some competent person in charge
thereof; if for justifiable causes, the defendant cannot be served within reasonable time Manner of ATTACHING (capable of manual delivery ):
1. By taking and safely keeping it in his (sheriff) custody, after issuing the
2. The defendant is a resident of the Philippines temporarily absent therefrom corresponding receipt therefor

3. Defendant is a non-resident of the Philippines

STOCKS and SHARES of any corporation or company
4. Action is one in rem or quasi-in rem Manner of Attaching:
1. By leaving WITH the PRESIDENT and MANAGING AGENT:
Sec.6. Sheriff’s return – a. a copy of the order and
 After enforcing the writ, the sheriff must without delay make a return to the court b. notice, that such STOCK or Interest of the adverse party is attached
from which the writ issued
 The return shall include: DEBTS and CREDITS
1. Full statement of his proceedings Includes:
2. Complete inventory of the property attached a. Bank deposits
3. Any counter-bond given by the party against whom attachment is issued b. Financial interest
 The sheriff shall serve copies of the return on the applicant c. Royalties
d. Commission and other personal property not capable of manual delivery
Sec.7. Attachment of real and personal property; recording thereof –
Manner of attaching:
How attachment of the following shall be made?
1. Real property 1. By leaving WITH the person owing such debts, or in his possession or under his
2. Personal property capable of manual delivery control, such credits or other personal property, or with his agent:
3. Debts and credits a. A copy of the writ, and
4. Interest in estate of decedent b. Notice that the debts owing by him to the party against whom
attachment is issued and the credits and other personal property in his
REAL PROPERTY – possession, or under his control, belonging to said party, are attached
Includes the following:
1. Those upon the record of the registry of deeds in the name of adverse party (sec.8) Effects of attaching:
a. Growing crops or any interest thereon
1. The third person having in their possession and control of the credits and any other
similar property belonging to the party whom attachment is issued, SHALL BE LIABLE
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 to the APPLICANT for the amount of such credits, debts or other similar personal deeds a custody, after president owing or executor or writ of
property, UNTIL: copy of the issuing the or such other personal attachment
a. The attachment is discharged, or order, corresponding managing debts, or representative with the
b. Any judgment is satisfied description receipt agent having in of the proper
and a therefor thereof, a possession decedent a court or
2. The third person in possession and control of the property not capable of manual notice that copy of or under copy of the quasi-
delivery belonging to the party whom attachment is issued is NO LONGER liable to is the order his control order and judicial
the applicant WHEN: attached; and such notice that it agency,
a. Such property is delivered or transferred, or such notice credits, a is attached
b. Debts are paid, to the clerk, sheriff, or other proper officer of the and that the copy of And
court issuing the attachment stock or the order And
By leaving share is and notice By serving
INTEREST in ESTATE OF DECEDENT a copy of attached that it is By filing with upon the
Manner of Attaching: such order, attached the office of custodian
1. By serving the EXECUTOR or ADMINISTRATOR or other PERSONAL REPRESENTATIVE description the clerk of of such
of the decedent with a copy of the writ and notice that said interest is attached; and notice court where property
2. And By filing a copy of such order and notice with the OFFICE of the CLERK of COURT with the said estate is the NOTICE
(clerk of the probate court) in which said estate is being settled; and notice shall be occupant being settled a of the
served upon the heir, legatee, or devisee of the copy of the attachment
property order and
Bar question: notice that it
If the property sought to be attached is in CUSTODIA LEGIS – is attached
1. By filing a copy of the writ with the PROPER COURT, or QUASI-JUDICIAL agency, and
2. And By SERVING the notice of attachment upon the custodian of such property. And

(Sec.9) Effects of attaching: Served upon

the heir,
1. SHALL not impair the powers of the executor, administrator, or other personal legatee or
representative of the decedent over such property for the purpose of administration devisee
concerned, a
2. In case where a petition for distribution is filed, the court where such petition is filed copy of such
may award the distribution to the HEIR, LEGATEE, or DEVISEE, but the PROPERTY order and
ATTACHED shall be ORDERED delivered to the SHERIFF making the levy, subject to notice
the claim of such heir, legatee or devisee or any person claiming under him
Manner of Attachment of the following: Examination of Party

a. Real Property Sec.10. Examination of party whose property is attached and persons indebted to him or
b. Personal Property controlling his property; delivery of property to sheriff –
c. Stock or shares Who are the persons may be required to attend for examination on oath:
d. Debts, Credits and all other similar personal property 1. any person owing debts to the party whose property attached
e. Interest in property belonging to the estate of a decedent 2. any person having in his possession or under his control any creditor or other
f. Property in Custodia Legis personal property belonging to the adverse party
3. the party whose property is attached
Real Personal Stocks or Debts and Interest in Property in
Property Property shares Credits estate of custodial Before whom should they appear?
(bank decedent legis a. before the court in which the action is pending
deposits) b. before a commissioner appointed by the court
By filing By taking and By By leaving By leaving By filing a
with the safely keeping leaving with the with the copy of the purpose of appearance:
registry of it in his with the person administrator order of
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 a. purpose of giving information respecting the property concerned and the testimony
shall be under oath
After examination the court may (what?):
The court may order personal property capable of manual delivery belonging to adverse party,
in the possession of a third person who is require to attend before the court, TO BE
DELIVERED to the CLERK OF COURT or SHERIFF on such terms as may be just, having reference
to any lien thereon or claim against the same, to await judgment in the action.
Sale of attached property
I. Sold After levy and before entry of judgment (sec.11)
 What are the attached Properties that can be sold:
a. perishable ones
b. those that the interest of all parties to the action will be subserved by
the sale thereof
 when can it be sold:
b. after levy and before entry of judgment; and
c. upon hearing with notice to both parties
 who orders for the sale of the attached property
a. the court in which the action is pending
 how is it sold:
a. the court may order such property to be sold at PUBLIC AUCTION in such
manner as it may direct, and the proceeds of such sale to be deposited in
court to abide the judgment in the action.
II. After Entry of Judgment sec.15 (judgment has become final and executory) –
Situation:
Judgment is in favor of the attaching party and execution is issued thereon, the sheriff may
cause the judgment to be satisfied out of the property attached.
How judgment satisfied?
a. in case there has been a public auction before entry of judgment:
 By paying to the judgment oblige the proceeds of all sales of perishables or other
property sold in pursuance of the order of the court, or so much as shall be
necessary to satisfy the judgment
b. in case there is a remaining balance due
 by selling so much of the property, real or personal, as may be necessary to satisfy
the balance, if enough for that purpose remain in the sheriff’s hands, or in those of
the clerk of court
c. in case property is in the possession and control of third person
 by collecting from all persons having in possession credits belonging to the judgment
obligor, or owing debts to the latter at the time of the attachment of such credits or
debts, the amount of such credits and debts as determined y the court in the action,
and stated in the judgment and paying the proceeds of such collection over the
judgment oblige
Note: the sheriff shall forthwith make a return in writing to the court of his proceedings and
furnish parties with copies thereof.
Sec.16. Balance due collected upon an execution;
The sheriff must proceed to collect such balance as upon ordinary execution, if:
 any balance shall remain due after realizing upon all the property attached,
including the proceeds of any debts or credits collected, and applying the proceeds
to the satisfaction of the judgment, less the expenses of proceedings upon the
judgment.
excess delivered to judgment obligor -
The sheriff shall, upon reasonable demand, must return to the judgment obligor the
attached property remaining in his hands, and any proceeds of the sale of the property
attached not applied to the judgment whenever judgment shall have been paid.
Discharge of attachment – requires notice and hearing
Period to file a motion to discharge and corresponding grounds:
1. before or after levy or even after the release of the attached property upon the
following grounds (sec.13):
a) writ of attachment was improperly or irregularly issued or enforced
b) applicant’s bond is insufficient and defect is not cured
c) attachment is excessive and defect is not cured
Party who should file:
 the party whose property has been ordered attached
2. after a writ of attachment is enforced upon (sec.12):
a. making a cash deposit in an amount equal to that fixed by the court in the order
of attachment or equal to the value of the property as determined by the court.
b. filing a counter-bond in an amount equal to that fixed by the court in the order
of attachment, or equal to the value of the property as determined by the court.
Party who should file the motion:
 the party whose property has been attached, or
 the person appearing on his behalf
Before whom should the motion be filed:
 the motion shall be filed with the court in which the action is pending
I. Upon Counterbond – sec.12
Sec.12. discharge of attachment upon giving counter-bond
a. when to file a motion to discharge of attachment upon counterbond
 after a writ of attachment is enforced
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b. who may move for the discharge of attachment wholly or in part
 the party whose property has been attached, or
 the person appearing on his behalf
c. The court shall, after due notice and hearing, order the discharge of the attachment if
the movant makes a cash deposit, or files a counter-bond executed to the attaching
party with the clerk of the court where the application is made.
d. How much should the amount of the counter-bond
 In an amount equal to that fixed by the court in the order of attachment,
exclusive of cost
 If the attachment is sought to be discharged with respect to a particular
property, the counter-bon shall be equal to the value of that property as
determined by the court.
e. purpose of the cash deposit or the counter-bond
 shall secure the payment of any judgment that the attaching party may
recover in the action
f. Upon the discharged of an attachment, the property attached, or the proceeds of any
sale thereof, shall be delivered to the party making the deposit or giving the counter-
bond, or to the person appearing on his behalf.
g. When can the attaching party may apply for new order of attachment
 The counter-bound for any reason be found to be, or become insufficient
and the party furnishing the same fail to file an additional counter-bond
Case:
Insular Savings vs CA, 460 SCRA 122
Issue: Whether the denial of the motion to discharge attachment is proper.
The denial of the motion to discharge attachment is not proper. If a portion of a claim is
already secure, there is no justifiable reason why such portion should still be subject of
counter-bond – simple common sense, if not consideration of fair play, dictates that a part of
a possible judgment that has veritably been preemptively satisfied or secured need not be
covered by the counter-bond.
Unlike the former sec.12 of rule 57 of the Rules of Court where the value of the property
attached shall be the defining measure in the computation of the discharging counter-
attachment bond, the present less stringent section 12 of Rule 57 provides that the court shall
order the discharge of attachment if the movant makes a case deposit or files a counter-bond
in an amount equal to that fixed by the court in the order of attachment exclusive of costs.
Not being in the nature of a penal statute, the Rules of court cannot be given retroactive
effect.
The FORMER Sec.12 of Rule 57 provides:
Sec.12. Discharge of attachment upon giving counter-bond – at any time after an order of
attachment ahs been granted, the party whose property has been attached, … may upon
reasonable notice to the applicant, apply to the judge who granted the order or to the judge
of the court which the action is pending, for an order discharging the attachment wholly or in
part on the security given. The judge shall, after hearing, order the discharge of the
attachment if a cash deposit is made, or a counter-bond executed to the attaching creditor is
filed, on behalf of the adverse party, with the clerk or judge of the court where the application
is made 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. x x x . should such counter-bond for any reason be found to be, or become insufficient,
and the party furnishing the same fail to file an additional counter-bond, the attaching may
apply for a new order of attachment.
NEW Sec.12 of Rule 57 provides:
Sec.12. Discharge of attachment upon giving counter-bond – After a writ of attachment has
been enforced, the party whose property has been attached, or the person appearing on his
behalf, may move for the discharge of the attachment wholly or in part on the security given.
The court shall, after due notice and hearing, order the discharge of the attachment if the
movant makes a cash depost, or files a counter-bond executed to the attaching party with the
clerk of the court where the application is made, in an amount equal to that fixed by the
court in the order of attachment, exclusive of costs. But if the attachment is sought to be
discharged with respect to a particular property, the counter-bond shall be equal to the value
of that property as determined by the court. In either case, the cash deposit or the counter-
bond shall secure the payment of any judgment that the attaching party may recover in the
action. x x x .
GB Inc vs Sanchez 98 Phil 886
The merits of the main action are not traible in a motion to discharge an attachment;
otherwise an applicant for the dissolution could force a trial of the merits of the case on this
motion.
Facts:
Respondent Chuidian secured a loan from Juan Luna Subdivision, Inc. and promised, under an
“agreement to sell”, to transfer within 60 days to Juan Luna Subdivision, Inc. the land which he
bought from one Florence Shuter. Instead of conveying the land, respondent sold the same to
Elenita Hernandez for 25,000 in order to pay his wife’s gambling debt.
Now, petitioner filed a complaint against respondent Chuidian for the collection of his
indebtedness based on his “Agreement to Sell” with a prayer asking for the issuance ex parte
of a writ of preliminary attachment on the ground that:
a. Respondent converted to his own use the land which he bought in a fiduciary
capacity
b. Guilty of fraud in contracting his debt and incurring the obligations upon which the
action is brought
Subsequently, the court granted a ex parte writ of preliminary attachment.
Before the issues have been joined (respondent not having as yet filed his answer to the
complaint), respondent filed a motion to discharge attachment on the ground that the
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attachment was improperly issued. After hearing of the motion to discharge attachment,
respondent Judge issued an order granting respondent’s motion to discharge attachment.
Issue: Whether the respondent judge correct in granting the motion to discharge attachment.
Ruling:
The judge is not correct in granting the motion to discharge attachment. In the case at bar the
hearings of motion to discharge attachment were held before the issues have been joined
(respondent not having yet filed his answer to the complaint), and the order issued thereby
discharging the attachment would have the effect of deciding or prejudicing the main action.
The merits of the main action are not triable in a motion to discharge an attachment,
otherwise an applicant for the dissolution could force a trial of the merits of the case on this
motion.
Recovery upon the counter bond –
Sec.17. –
Situation: when the judgment has become executory
Corresponding responsibilities:
1. the surety or sureties on any counter-bond given to secure the payment of the judgment
shall:
 become charged on such counter-bond, and
 bound to pay the judgment oblige upon demand amount due under the judgment
When shall the amount of counter-bond be recovered from the surety:
1. after notice and summary hearing in the same action.
II. On Other Grounds –
Sec.13. Discharge of attachment on other grounds – requires notice and hearing
Period to file a motion to discharge:
1. before or after levy
2. or even after the release of the attached property
Where to file?
 to the court in which the action is pending
Who may file?
 the party whose property has been ordered attached
grounds for an order to set aside or discharge the attachment:
a. the attachment was improperly or irregularly issued or enforced and the defect is
not cured
b. the applicant’s bond is insufficient and the defect is not cured
c. attachment is excessive and the defect is not cured
 if the attachment is excessive, the discharge shall be limited to the excess
Note: there shall be due notice and hearing before the court shall order the setting aside or
the corresponding discharge of the attachment if it appears that it was improperly or
irregularly issued or enforced, or that the bond is insufficient, or that the attachment is
excessive, and the defect is not cured forthwith.
Can the attaching party file a counter-affidavit to oppose the discharge?
Yes. Under the rules, if the motion to discharge be made on affidavits, the attaching party may
oppose the motion by counter-affidavits or other evidence in addition to that on which the
attachment was made.
Third party Claim
Sec.14. Proceedings where property claimed by third person –
If the property attached is claimed by any person other than the party against whom
attachment had been issued or his agent, Such THIRD Person shall:
1. make an AFFIDAVIT
2. Serve such affidavit upon the sheriff while the latter has possession of the attached
property
3. serve a copy thereof upon the attaching party
the Affidavit shall contained:
a. title to the property or right to the possession thereof
b. grounds of such right or title
Upon receipt, the sheriff shall not be bound to KEEP the property under attachment, UNLESS:
 the attaching party or his agent, on demand of the sheriff, shall file a BOND to
indemnify the third-party claimant
Amount and purpose of the bond:
1. the bond must be approved by the court to indemnify the third party claimant
2. the bond should in a sum NOT LESS THAN the value of the property levied upon
In case of disagreement as to such value, the same shall be decided by the court issuing the
writ of attachment.
NOTE: No claim for damages for the taking or keeping of the property may be enforced
against the bond unless the action (for claim of damages) thereof is filed within 120 days
from the date of the filing of the bond.
Sheriff shall not be liable for damages for taking or keeping if:
1. if such bond is filed
 however, nothing shall prevent such claimant or any third person from vindicating
his claim to the property, or prevent the attaching party from claiming damages
against a third-party claimant who filed a frivolous or plainly spurious claim, in the
same or a separate action.
2. when the writ of attachment is in favor of the RP, or any duly officer representing it;
 in the above situation, the filing of such bond is not be required;
 and in case the sheriff is sued for damages as a result of attachment, HE SHALL be
represent by the Solicitor General, and if held liable therefore, the actual damages
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 adjudged by the court shall be paid by the National Treasure out of the funds to be
appropriated for the purpose.
Sec.15. Satisfaction of judgment out of property attached; return of sheriff – (see sale of
attached property)
Sec.16. Balance due collected upon an execution; excess delivered to judgment obligor; - (see
sale of attached property)
Sec.17. Recovery upon the counterbond – (see discharge of attachment)
DISPOSITION
a. disposition of money (sec.18)
Situation: the party against whom attachment is issued deposited money instead of
giving a counter-bond.
If judgment rendered in favor of the attaching party:
 the money deposited shall be applied under the direction of the court to the
satisfaction of the judgment rendered
 and after satisfying the judgment the balance shall be refunded to the depositor
or his assignee.
if judgment is in favor of the party against whom attachment is issued:
 the whole sum deposited must be refunded to him or his assignee
b. Sec.19. Disposition of attached property where judgment is for party against whom
attachment was issued –
Situation: judgment is rendered against the attaching party
Obligation of the sheriff:
 Shall deliver to the party against whom attachment issued all the proceeds of
sales and money collected or received by the sheriff, under the order of
attachment, and all property attached remaining in any such sheriff’s hands,
 And the order of attachment discharged
Sec.20. Claim for damages on account of improper, irregular or excess attachment –
When to file application for damages:
1. must be filed before the trial, or
2. must be filed before appeal is perfected; or
3. before the judgment becomes executory
On what grounds should it be filed:
An application for damages shall be filed on account of:
1. improper, irregular or excessive attachment
2. insufficiency and failed to cure the same
Judgment on such application shall not be rendered without:
1. setting forth the facts showing his right to damages and the amount thereof in the
application
2. notices to the attaching party and his surety or sureties
3. proper hearing
Compliance 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
is issued, when should he file a claim for it (note: applicable on the grounds of improper,
irregular, or excessive attachments):
 he must claim damages sustained during the pendency of appeal but before
judgment of the appellate court becomes executory by:
1. filing an application in the appellate court and
2. giving notice to the attaching party and his surety or sureties
The appellate court may allow the application to be heard and decided by the trial court.
For the grounds of insufficiency of bond or deposit given by the attaching party, the
following rule shall be observed:
 Nothing shall prevent the party against whom the attachment was issued from
recovering in the same action the damages awarded to him from any property of the
attaching party not exempt from execution should the bond or deposit given by the
latter be insufficient or fail to fully satisfy the award.
Bar Questions:
Bar 1981 –
1. Y is a stockholder of a local corporation. Y owns 20% of the shares of the said
corporation. Y defaults on a manufacturing contract with Z. Z sues for specific
performance and damages and, on the ground that Y is fleeing from the country to avoid
his creditors, seeks to attach 20% of a parcel of land that belongs to the corporation.
Can Z secure such an attachment granting that the averments of his petition are
sufficient? Reasons.
Suggested answer:
The attachment cannot be obtained. The property sought to be attached is actually the
proepryt of the corporation which is not the defendant in the case. The corporation has a
personality separate and distinct from that of its stockholders.
Under the rules, a plaintiff or any proper party may have the PROPERTY OF THE ADVERSE
PARTY attached as security for the satisfaction of any judgment that may be recovered
later.
Bar 1982 –
Edward file a complaint for accounting against Liza for accounting of the money received by
her as administratix of Edward’s hacienda. In his complaint, Edward prayed for preliminary
attachment, alleging that Liza was about to depart from the Philippines. Attached to the
complaint was an affidavit executed by Marilyn to the effect that Liza told her that she, Liza,
was planning to leave for Singapore in a few days. If you were the judge, would you grant the
prayer for preliminary attachment?
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Suggested answer:
Not grant the prayer for preliminary attachment. The application should show that the
defendant’s departure from the Philippines must be with the corresponding intent to defraud
the creditors. This fact was not alleged in the application for the issuance of the writ of
preliminary attachment.
Would grant the prayer for preliminary attachment because this would fall under property
embezzled by a person in a fiduciary capacity under sec.1(b) of rule 57. Here, intent to defraud
need not be shown because the act of Liza is already fraudulent.
Bar 1983 –
Daniel Chan owns a house and lot at Forbes Park, Makati, where his wife and children reside,
he is the chief executive officer of various family corporation where he owns 20% of the
respective capital stocks. These family corporations owe several banks the total sum of 2.5
billion, with Chan as a solidary co-debtor.
After chan has carefully manipulated the finances of the family corporations and diverted
their funds to his account in a swiss bank, he flees from the philippines and now resident at
127 Rue Duphine, Zurich, Switzerland. The banks concerned now retains the services of Atty.
Ramon Castillo for the purpose of filing a suit in the Philippines against Daniel Chan on his
obligations as a solidiary co-debtor on the loans of the family corporations. One of the
procedural problems facing Atty. Castillo is the method of effecting a valid service of summons
upon Daniel Chan, now residing in Switzerland, to enable the Philippine courts to acquire
jurisdiction over his person.
Describe the remedies and procedure, and the supporting grounds thereof that Atty. Castillo
should follow as would enable him to effect a valid service summons on Daniel Chan.
Suggested answer:
Atty. Castillo should file an action against Daniel Chan for collection of a sum of money with an
application for a writ of preliminary attachment if he has properties in the Philippines. The
writ of attachment is required in order to convert the action in personam into an action quasi
in rem. In this kind of action, jurisdiction over the person of the defendant is not required.
What is required is jurisdiction over the res which could be obtained by the attachment.
Summons by publication or other modes of exterritorial service of summons would then be
served upon him with leave of court following the procedure under Sec. 15 of Rule 14 of the
Rules of court.
Bar 1999 –
1. In a case, the property of an incompetent under guardianship was in custodial egis. Can it
be attached? Explain.
Suggested answer:
Yes. Property placed under custodia legis can be attached. Under the rules, (Sec.7, rule
57) if the property sought to be attached is in custodia legis,:
 A copy of the writ of attachment shall be filed with the proper court or quasi-
judicial agency, and
 Notice of the attachment served upon the custodian of such property
2. May damages be claimed by a party prejudiced by a wrongful attachment even if the
judgment is adverse to him? Exlpain.
Suggested answer:
Yes. Damages may be claimed even by the losing party, where the attachment was
improper, irregular or excessive. The claim for damages shall be heard with notice to the
adverse party and his surety or sureties. An improper, irregular or excessive attachment
is not validated by the fact that the attaching party prevailed in the main action.
Bar 1999; 1975 – Kinds of attachment
Attachment vs Garnishment vs levy on execution –
Attachment and garnishment are distinguished from each other as follows:
ATTACHMENT –
 is a provisional remedy that effects a levy on property of a party as security for the
satisfaction of any judgment that may be recovered,
 the implementation must be preceded by service of summons
GARNISHMENT –
 is a levy on debts due the judgment obligor or defendant and other credits, including
bank deposits, royalties and other personal property not capable of manual delivery
under a writ of execution or a writ of attachment.
 Kind of attachment in which plaintiff seeks to subject either property of the
defendant in the hands of a third person called the garnishee, to his claim or the
money which said third person owes the defendant
 Services of summons is not required to bind the garnishee
Levy on execution –
 Is a writ issued by the court after judgment by which the property of the judgment
obligor is taken into the custody of the court before the sale of the property on
execution for the satisfaction of a final judgment.
 It is the preliminary step to the sale on execution of the property of the judgment
debtor
Bar 2000 –
JK’s Real property is being attached by the sheriff in a civil action for damages against LM. JK
claims that he is not party to the case; that his property is not involved in the said case; and
that he is the sole or registered owner of the said property. Under the rules of court, what
must JK do to prevent the sheriff from attaching his property?
Suggested Answer:
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  He may avail of the remedy called terceria by making an affidavit of his title thereto
or his right to possession thereof, stating the grounds of such right or title. The
affidavit must be served upon the sheriff and the attaching party (sec.16, Rule 57)
Upon service of the affidavit upon him, the sheriff shall not be bound to keep the
property under attachment except if the attaching party files a bond approved by
the court. The sheriif shall not be liable for damages for the taking or keeping of the
property, if such bond shall be filed (sec.14, Rule 57)
 The third party claimant is not precluded under sec.14 of rule 57 from vindicating his
claim to the property in the same or in a separate action. Thus, he may file a
separate action to nullify the levy with damages resulting from the unlawful levy and
seizure. This action may be totally distinct action from the former case.
Bar 1991 –
Upon failure of X to pay the promissory note for 100,000 which he executed in favor of Y, the
latter filed the complaint for a sum of money with application for the issuance of a writ of
preliminary attachment alleging therein that X is about to dispose of his properties in fraud of
his creditors.
a. May the court issue the writ immediately upon filing of the complaint and before
the service of summons?
b. If service of summons is indispensable before the writ is issued, is hearing on the
application necessary?
c. If the writ is issued and X filed a motion to quash the attachment, may the motion
be granted ex parte?
Suggested Answer
a. The writ may be issued upon the filing of the complaint and even before the service
of summons upon the defendant (sec. 1 Rule 57)
b. A hearing on the application is not necessary. The application for the writ need not
be heard. It may be issued ex parte. The issuance of summons is not even
indispensable before the writ is issued.
c. The motion to quash may not be granted ex part. A hearing is necessary (sec.12,13,
rule 57)
Bar 1978
X filed a complaint in the CFI against Y for the recovery of a sum of money. X at the same time
also prayed for the issuance of an order of preliminary attachment against Y, and included in
his affidavit, among others, that Y was disposing of his properties with intent to defraud X. the
court immediately issued the writ of preliminary attachment ex parte. Y move to discharge the
attachment on the ground that it was irregularly issued, in that Y was not notified at all of such
application or about the time and place of the hearing thereof, in gross violation of the Rules
and his right to due process of law.
As counsel for X prepare an opposition of Y’s motion to discharge the attachment.
Suggested answer:
Y’s motion to discharge the attachment must be denied. A writ of preliminary attachment may
be issued at the commencement of the action and can be issued ex parte.
RULE 58 – PRELIMINARY INJUNCTION
I. Definition
Temporary restraining order (sec.5, Rule 58)
 Prior notice is not mandatory
 is issued upon a verified application showing great or irreparable injury would result
to the applicant before the matter can be heard on notice. Thus preserving the
status quo until the hearing of the application for preliminary injunction.
 It only has a limited life of 20 days from date of issue
 TRO is deemed automatically vacated if before the expiration of the 20 day period,
the application for PI is denied
 Shall expire on the 20th day automatically without any judicial declaration to that
effect.
 May be issued ex parte
Preliminary Injunction:
Preliminary injunction is an order granted at any stage of an action or proceeding prior to the
judgment or final order (not final and executory), requiring a party or a court, agency or a
person to refrain from a particular act or acts. It may also require the performance of a
particular act or acts, in which case it shall be known as a preliminary mandatory injunction
(sec.1, Rule 58).
(Limitless vs Potentials, April 24 2007)
Preliminary injunction is a provisional remedy that a party may resort to in order to preserve
and protect certain rights and interest during the pendency of an action; the status quo
should be existing ante litem motam, or at the time of the filing of the case – preliminary
injunction should not establish new relations between the parties, but merely maintain or re-
establish, the pre-existing relationship between them.
To be entitled to an injunctive writ, the petitioner has the burden to establish the following
requisites:
1. a right in esse or a clear and unmistakable right to be protected;
2. a violation of that right
3. that there is an urgent and permanent act and urgent necessity for the writ to
prevent serious damage.
Absence of a showing that the petitioners have an urgent and paramount need for a writ of
preliminary mandatory injunction to prevent irreparable damage, they are not entitled to such
writ (China Banking vs Co, 565 SCRA 600).
status quo – refers to the last actual, peaceful, and uncontested status that preceded the
actual controversy.
A preliminary injunction or TRO may be granted only when, among other things:
 the applicant files with the court, where the action is pending, a bond executed to
the party or person enjoined, in an amount to be fixed by the court, to the effect
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 that the applicant will pay such party or person all damages which he may sustain by
reason of the injunction or TRO if the court should finally decide that the applicant
was not entitled thereto.
China Banking vs Co, 565 SCRA 600
It is settled that the grant of a preliminary mandatory injunction rests on the sound discretion
of the court.
preliminary injunction is merely a provisional remedy, adjunct to the main case subject to the
latter's outcome. It is not a cause of action in itself
Final Injunction
An injunction is preliminary when it refers to the writ secured before the finality of the
judgment (sec.1 rule 58, RC).
It is final when it is issued as a judgment making the injunction permanent. It perpetually
restrains a person from the continuance or commission of an act and confirms the previous
preliminary injunction (sec.9, Rule 58, RC).
Preventive Injunction –
 Injunction is prohibitory when its purpose is to prevent a person from the
performance of a particular act.
 The act has not yet been performed
 The status quo is preserved and restored
Mandatory Injunction –
 It is mandatory when its purpose is to require a person to perform a particular act
 The act has already been performed and this act has violated the rights of another
 It does not preserve the status quo but restores it
China banking vs Co, Dec. 6, 2006 –
Since a preliminary mandatory injunction commands the performance of an act, it does not
preserve the status quo and is thus more cautiously regarded than a mere prohibitive
injunction.
Semirara Coal Corporation vs HGL Development Corporation, 510 SCRA 479 –
A lawful possessor is entitled to be respected in his possession and any disturbance of
possession is a ground for the issuance of a writ of preliminary mandatory injunction to
restore the possession.
Devesa vs Arbes, March 23, 1909 –
Injunctions or interdictos prohibitorios, for the issuance of which provision is made in the new
code of civil procedure, while they resemble the interdictal actions of the Spanish procedural
law in some respect, are wholly distinct therefrom and as a rule, the cirucumstances under
which, in accordance with the Spanish law, interdictos de adquirir, de retener, de recobrar, or
de despojo properly issued would not justify nor sustain the issuance of an injunction,
interdito prohibitorio, as defined and provided in the new code of civil procedure.
III. Origin -
An injunction is a special remedy contained in the new code of civil procedure and adopted
from American and English law of procedure, and the accepted American doctrine limiting its
use to cases where there is no other adequate remedy, and otherwise controlling the issue
thereof, must be deemed to limit its use in like manner in this jurisdiction (Devesa vs Arbes,
13 Phil 273).
Writs not available for recovery of property when title is not established
Injunctions, as a rule, will not be granted to take property out of the possession or control of
one party and place it into that of another whose title has not clearly been established.
IV. Purpose:
1. the objective of a writ of preliminary injunction is to preserve the status quo until
the merits of the case can be fully heard; status quo is the last actual, peaceable and
uncontested situation which precedes a controversy (preysler jr vs CA 494 SCRA
547).
2. the purpose of preliminary injunction is to prevent threatened or continuous
irremediable injury to some of the parties before their claims can be thoroughly
studied and adjudicated (limitless vs CA, 522 SCRA 70).
V. SCOPE –
Acts already performed cannot be prohibited except specifically stated in the order – if a writ
of preliminary injunction has been issued against a particular person, enjoining him, for
example, from performing any act whatever that may tend to close and obstruct an irrigation
ditch by preventing the passage of the water, when the said ditch was already closed, it
cannot be understood that the person, against whom the prohibitory order was issued,
willfully disregarded and disobeyed the said judicial writ by not removing the obstacle that
prevented the flow of the water, because this last operation is not covered by the writ of
injunction (mantile vs Cajucom, 19 Phil 563).

II. Classes – Injunction will not lie where the acts sought to be enjoined have already been accomplished
the new Code of Civil Procedure or consummated – a writ of preliminary injunction will not issue if the act sought to be
1. Injunction or interdictos prohibitorios enjoined is a fait accompli.

The Spanish procedural law VI. Distinguished from mandamus

1. interdictos de adquirir Mandamus is a special civil action seeking a judgment commanding a tribunal, board, officer
2. interdictos de retener or person to perform a ministerial duty required to be performed by law (sec.3, Rule 65, RC).
3. interdictos de recobrar
4. interedictos de despojo
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Mandatory injunction is directed to a party litigant, not to a tribunal and is issued to required
a party to perform a particular act to restore the status quo.
VII. Distinguished from prohibition
Prohibition is a special civil action seeking a judgment commanding a tribunal, corporation,
board, or officer to desist from further proceeding in the action because it has no jurisdiction,
is acting in excess of jurisdiction or has gravely abused its discretion amounting to lack of
jurisdiction (Sec.2, rule 65, RC)
Prohibitory injunction is a provisional remedy that is directed to a litigant, not a tribunal and
is issued to require said party to refrain from a particular act (sec.1 Rule 58, RC).
Feliciano vs Alipio 94 Phil 621 –
Action for declartory relief, considered as one for prohibition –
Although the ptitioen filed against public officers is for declaratory relief, yet if it prays also for
the issuance of a permanent injunction from carrying out the provisions of a Department
Circular on grounds of unconstitutionality, the same is equivalent to an action for prohibition
and the court should not dismiss the petition but should proceed with the case considering
the action as one for prohibition.
VIII. KINDS
IX. When is mandatory injunction issued (sec.3, Rule 58)
Mandatory injunction is issued when it is established:
a. that the applicant is entitled to the relief demanded, and the whole or part of such
relief consists of:
 requiring the performance of an act or acts for limited period or
perpetually
b. that the commission, continuance or non performance of the act or acts complained
during the litigation would probably work injustice to the applicant;
c. that a party, court, agency or a person is:
 doing, threatening, or is attempting to do, or
 procuring or suffering to be done
some act or acts probably in violation of the rights of the applicant respecting
the subject of the action or proceeding, and tending to render the judgment
ineffectual
application for preliminary injunction is denied or not resolved within such
period.
 The TRO may be extended provided there is a judicial declaration to that
effect
 The court has no authority to extend or renew the TRO on the same
ground for which it was issued
 If issued by the Court of Appeals, it shall be valid and effective for 60 days
from service on the party or person sought to be enjoined.
 If issued by the SC, effective until further orders.
2. if the matter is of extreme urgency and the applicant will suffer grave injustice and
irreparable injury
 may be issued ex parte by the executive judge of a multiple-sala court
 valid only for 72 hours from issuance but shall comply with the service of
summons and the documents to be served on the party sought to be
enjoined
 within the 72hrs the judge before whom the case is pending shall
summary hearing to determine whether the TRO shall be extended until
the application for Preliminary injunction can be heard.
 In no case shall the total period of effectivity of the TRO exceed 20 days,
including the original 72 hrs
The trial court, the CA, the SB, or the CTA that issued a writ of preliminary injunction against a
lower court, board, officer, or quasi-judicial agency shall decided the main case or petition
within 6 months from the issuance of the writ.
Kinds if TRO –
1. 20 day TRO
 Issued by the court to which the application for Preliminary injunction was
made
 May be issued ex parte showing by affidavits that great or irreparable injury
would result to the applicant before the matter can be heard on notice
 The 20 day period shall start from service on the party sought to be enjoined
 Extendible without need of any judicial declaration provided that the ground
for extension shall not be the same with the first because no court shall have
the authority to extend or renew the same on the same ground for which it was
issued
 On the 20th day the TRO shall expire; or it shall expire automatically if the
application for preliminary injunction is denied or not resolved within the 20
day period

2.
XI. When is a TRO issued (sec.5, Rule 57)
TRO may issue ex parte if by the facts shown by the affidavits or by the verified application
that:
1. a great or irreparable injury would result to the applicant before the matter can be
heard on notice
 under such ground, TRO issued is only effective for a period of 20 dyas
from issuance and the TRO shall be deemed automatically vacated if the
72 hrs TRO
 Issued by an EXECUTIVE judge of a multiple-sala court; or the PRESIDING judge
of a single-sala court
 Grounds for issuance: if the matter is of EXTREME URGENCY and the applicant
will suffer grave injustice and irreparable injury
 May also be issued ex parte
 Effectivity: The 72hr period shall commence from the issuance but shall
immediately comply with the service of summons and documents to be served

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  Extendible without need of judicial declaration but the extension shall not
exceed 20 days, including the original 72 hr; provided that the ground for the
extension shall not be the same ground for which it was issued
3. 60 days TRO
 Issued by the Court of Appeals or member thereof
 The 60 day TRO shall be effective from service on the party or person sought
to be enjoined
 Non-extendible; no judicial declaration that it has expired is necessary
4. indefinite TRO
 issued by the Supreme Court or member thereof
 shall be effective until further orders
 has the authority to issue TROs on cases involving
a. national government infrastructure projects (SC Admin Circular No.
11-2000)
Requisites for preliminary injunctive relief:
Petitioner must establish the following requisites to be entitled to a writ of preliminary
injunction:
1. the right sought to be protected is material and substantial
2. right of the complainant is clear and unmistakable
3. there is a violation of such right
4. there is an urgent and permanent necessity for the writ of to prevent serious
damage
XII. Irreparable injury; define
Term irreparable injury has a definite meaning in law. It does not have reference to the
amount of damages that may be caused but rather to the difficulty of measuring the
damages inflicted. If full compensation can be obtained by way of damages, equity will not
apply the remedy of injunction. The direct and inevitable result would be the stoppage of the
operations of respondents' radio stations, consequently, losing its listenership, and tarnishing
the image that it has built over time. It does not stretch one's imagination to see that the cost
of a destroyed image is significantly the loss of its good name and reputation. As aptly
appreciated by the appellate court, the value of a radio station's image and reputation are not
quantifiable in terms of monetary value.
XIII.Status quo
Grave abuse of discretion amounting to lack or in excess of jurisdiction is committed if the writ
of preliminary injunction is issued restoring the situation prior to the status quo, in effect, the
disposing the main issue without trial on the merits.
The status quo usually preserved by a preliminary injunction is the last actual, peaceable
and uncontested status which preceded the actual controversy. It is the state of affairs
which is existing at the time of the filing of the case (OWWA vs Chavez, 524 SCRA 451)
A preliminary writ of injunction is merely temporary, subject to the final disposition of the
principal action. the issuance thereof is within the discretion of the court and is generally not
interfered with except in cases of manifest abuse (Dungog vs CA, 408 SCRA 267)
XIV. Who may grant injunction
Sec.2, Rule 58. Who may grant preliminary injunction –
A preliminary injunction may be granted by:
1. the court where the action or proceeding is pending
2. it may be issued by the CA, or the SC if the action or proceeding is pending therein;
XV. Against whom is injunction issued –
1. Senate Blue Ribbon Committee vs Majaducan, 407 SCRA 356
Where the senate in conduct legislative inquiries in aid of legislation, and persons
were subpoenaed and invited thereto, the latter cannot go to the court of justice
because it has no authority to prohibit (issue a writ of injunction) the committee
from requiring that person from appearing and testifying before it; otherwise it will
be inconsistent with the doctrine of separation of powers as the same is an
encroachment to one’s prerogatives. Therefore, writ of injunction shall not issue
against such constitutional body.
2. Mabayo Farms vs CA, 386 SCRA 110
As an ancillary or preventive remedy, a writ of preliminary injunction may therefore
be resorted to by a party to protect or preserve his rights and for no other purpose
during the pendency of the principal action. Its object is to preserve the status quo
until the merits of the case can be heard. It is not a cause of action in itself but
merely a provisional remedy, an adjunct to a main suit. Thus, a person who is not a
party in the main suit, like private respondent in the instant case, cannot be bound
by an ancillary writ, such as the writ of preliminary injunction issued against the
defendants in Civil Case No. 6695. He cannot be affected by any proceeding to which
he is a stranger. Therefore writ injunction shall not issue against a person who is
not a party in the main action.
3. Southern Cross Cement vs PCMC, July 8, 2004
The court cannot grant a writ of preliminary injunction enjoining the collection of
taxes, a preemptory judicial act which is frowned upon, unless there is a statutory
basis for it. In that regard, Section 218 of the Tax Reform Act of 1997 prohibits any
court from granting an injunction to restrain the collection of any national internal
revenue tax, fee or charge imposed by the internal revenue code. Therefore, a writ
of attachment shall not issue to enjoin tax collection
4. Delta ventures vs Cabato, march 9, 2000
Cases involving labor dispute, the RTC being co-equal body of the NLRC, has no
jurisdiction to issue any restraining order or injunction to enjoin the execution of any
decision of the NLRC. Therefore, a writ of attachment shall not issue against labor
disputes.
5. Traders Royal bank vs IAC
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 no court has the power to interfere by injunction with the judgments or decrees of
a concurrent or coordinate jurisdiction having equal power to grant the injunctive
relief sought by injunction, except in cases where third-party claimant is involved, in
order to prevent one court from nullifying the judgment or process of another court
of the same rank or category, a power which devolves upon the proper appellate
court. The purpose of the rule is to avoid conflict of power between different courts
of coordinate jurisdiction. Therefore, a writ of injunction shall not issue against a
judgment of a court except in cases of third party claimant.
6. Executive Secretary vs CA, GR no. 131719
To be entitled to a preliminary injunction to enjoin the enforcement of a law
assailed to be unconstitutional, the party must establish that
1. it will suffer irreparable harm in the absence of injunctive relief and
2. must demonstrate that it is likely to succeed on the merits, or
3. that there are sufficiently serious questions going to the merits and the
balance of hardships tips decidedly in its favor
Before the plaintiff may be entitled to injunction against future enforcement, he is
burdened to show some substantial hardship.
Therefore, writ of injunction shall not issue to enjoin the enforcement of a law
unless it can be established with substantial hardship on the part of the plaintiff
that the law assailed is unconstitutional.
7. Bangko Sentral ng Pilipinas vs Antonio-Valenzuela – Oct. 2, 2009
As such, a writ of preliminary injunction may be issued only upon clear showing of
an actual existing right to be protected during the pendency of the principal action.
The twin requirements of a valid injunction are the existence of a right and its actual
or threatened violations. Thus, to be entitled to an injunctive writ, the right to be
protected and the violation against that right must be shown. Thus, the issuance of
the writ of preliminary injunction must have basis in and be in accordance with
law. All told, while the grant or denial of an injunction generally rests on the sound
discretion of the lower court, this Court may and should intervene in a clear case of
abuse. (submission of ROEs)
XVI. Injunction on Government Projects
a. SC Administrative Circular no. 11-2000
SEC. 3. Prohibition on the Issuance of Temporary Restraining Orders, Preliminary
Injunctions and Preliminary Mandatory Injunctions.- No court, except the Supreme
Court, shall issue any temporary restraining order, preliminary injunction or
preliminary mandatory injunction against the government, or any of its subdivisions,
officials or any person or entity, whether public or private, acting under the
government's direction, to restrain, prohibit or compel the following acts:
a. Acquisition, clearance and development of the right-of-way
and/or site or location of any national government project;
b. Bidding or awarding of contract/project of the national
government as defined under Section 2 hereof;
c. Commencement, prosecution, execution, implementation,
operation of any such contract or project;
d. Termination or rescission of any such contract/project; and
e. The undertaking or authorization of any other lawful activity
necessary for such contract/project. "
This prohibition shall apply in all cases, disputes or controversies instituted by a
private party, including but not limited to cases filed by bidders or those claiming to
have rights through such bidders involving such contract/project. EXCEPTION: This
prohibition shall not apply when the matter is of extreme urgency involving
constitutional issue, such that unless a temporary restraining order is issued, grave
injustice and irreparable injury will arise. The applicant shall file a bond, in an
amount to be fixed by the court, which bond shall accrue in favor of the government
if the court should finally decide that the applicant was not entitled to the relief
sought,
If after due hearing the court finds that the award of the contract is null and void,
the court may, if appropriate under the circumstances, award the contract to the
qualified and winning bidder or order a rebidding of the same, without prejudice to
any liability that the guilty party may incur under existing laws.
SEC. 4. Nullity of Writs and Orders.- Any temporary restraining order, preliminary
injunction or preliminary mandatory injunction issued in violation of Section 3
hereof is void and of no force and effect.
SEC. 5. Designation of Regional Trial Courts.- The Supreme Court may designate
regional trial courts to act as commissioners with the sole function of receiving facts
of the case involving acquisition clearance and development of right-of-way for
government infrastructure projects. The designated regional trial court shall within
thirty (30) days from the date of receipt of the referral, forward its findings of facts
to the Supreme Court for appropriate action.
Republic vs Nolasco, April 27, 2005
GR: Republic Act No. 8975 definitively enjoins all courts, except the Supreme Court, from
issuing any temporary restraining order, preliminary injunction, or preliminary mandatory
injunction against the government, or any of its subdivisions, officials or any person or entity
to restrain, prohibit or compel the bidding or awarding of a contract or project of the national
government, precisely the situation that obtains in this case with respect to the Agno River
Project.
EXCEPTION:
1. The only exception would be if the matter is of extreme urgency involving a
constitutional issue, such that unless the temporary restraining order is issued,
grave injustice and irreparable injury will arise. The TRO issued by the RTC failed to
take into consideration said law. Neither did it advert to any extreme urgency
involving a constitutional issue, as required by the statute. The law ordains that such
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 TRO is void, and the judge who issues such order should suffer the penalty of
suspension of at least sixty (60) days without pay.
2. Case of Hernandez vs NAPOCOR -
An injunctive relief may be issued by any other court who has jurisdiction over the
subject matter whenever national projects of the government shall be detrimental
to one’s right to life.
Proviso: Unquestionably, the power to issue injunctive writs against the implementation of
any government infrastructure project is exclusively lodged with this Court (SC), pursuant to
Section 3 of Rep. Act No. 8975. But while lower courts are proscribed thereunder from issuing
restraining orders and/or writs of preliminary injunction to stop such projects, the proscription
does not mean that such courts are likewise bereft of authority to take cognizance of the
issue/issues raised in the principal action, as long as such action and the relief sought are
within their jurisdiction.
Hernandez vs NAPOCOR, March 23, 2006
The prohibition (under RA 8975) is not meant to be a blanket prohibition as to disregard the
fundamental right to health, safety and well-being of a community guaranteed by the
fundamental law of the land. Therefore, an injunctive relief may be issued by any other court
who has jurisdiction over the subject matter whenever national government projects shall
be detrimental to one’s right to life.
Strong Arm of Equity = Preliminary injunction; It should only be extended in cases of
1. great injury where courts of law cannot afford an adequate or commensurate
remedy in damages; “in cases of extreme urgency;
2. where the right is very clear;
3. where considerations of relative inconvenience bear strongly in complainant’s favor;
4. where there is a willful and unlawful invasion of plaintiff’s right against his protest
and remonstrance, the injury being a continuing one, and
5. where the effect of the mandatory injunction is rather to reestablish and maintain a
preexisting continuing relation between the parties, recently and arbitrarily
interrupted by the defendant, than to establish a new relation.
XVII. Time to Grant Injunction
At any stage of an action or proceeding prior to the judgment or final order (sec.1 Rule 58)
XVIII.
XIX. SUFFICIENCY OF COMPLAINT, APPLICATION AND OTHER REQUISITES
A injunction or TRO may be granted only when:
1. the application for the same is VERIFIED
2. the application shows that the applicant is entitled to the relief sought
3. unless exempted by the court, the applicant shall execute a bond to the party
enjoined, in an amount fixed by the court. The filing of the bond is conditioned upon
to pay the party enjoined all damages that he may sustained by reason of the
injunction or the TRO if the court should finally decide that the applicant is not
entitled thereto.
4. Upon approval of the requisite bond, a writ of preliminary injunction shall be issued
When the application for a writ of preliminary injunction or TRO is included in a complaint or
any initiatory pleading:
a. If filed in a multiple sala:
1. The case shall be raffled only after notice to and in the presence of the adverse
party OR the person to be enjoined
2. The notice shall be preceded, or contemporaneously accompanied, by:
a. Service of summons upon the adverse party in the PHlLIPPINES
b. Together with the copy of the:
 Initiatory pleading
 The applicant’s affidavit
 The applicant’s bond
GR: No service of summons; no implementation
Ex:
1. Summons could not be served personally or by substituted service
despite diligent efforts
2. Adverse party is a resident of the Philippines temporarily absent
3. Defendant is a non-resident thereof
Application of TRO when shall be heard or acted upon –
The application for a TRO shall be acted upon only:
 after all parties are heard in a summary hearing
 the summary hearing shall commenced/conducted within 24 hrs after the sheriff’s
return service and/or the records are received by the branch selected by raffle and
to which the records shall be transmitted immediately.
Land Bank of the Philippines vs Continental Watchman 420 SCRA 624
The exercise of sound judicial discretion by the trial court in injunctive matters must not be
interfered with except when there is manifest abuse.
Republic vs Evangelista 466 SCRA 544
At the hearing for the issuance of a writ of preliminary injunction, mere prima facie evidence
is needed to establish the applicant’s rights or interests in the subject matter of the main
action – the applicant is required only to show that he has an ostensible right to the final relief
prayed for in his complaint.
XX. Injunction Bond (sec.4 & 7)
Sec.4. – a preliminary injunction or TRO shall not issue unless the applicant shall execute a
bond to the party or person enjoined, in an amount fixed by the court, to the effect that the
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applicant will pay to such party or person all damages which he may sustain by reason of the
injunction or TRO if the court should finally decide that the applicant was not entitled thereto. Subject of objection/dissolution: Preliminary Injunction or TRO
When may be denied If granted, when may be May be modified
Limitless potential vs CA (supra) denied
Issue: Is it necessary for an enjoined party who sustained damages by reason of the  upon showing of its  if it appears that the
injunction to prove malice or lack of good faith in the issuance thereof before he can recover insufficiency extent of the
damages against the injunction bond?  on the other grounds upon affidavits of the party or Preliminary Injunction
person enjoined or restraining order is
No. Malice or lack of good faith in the issuance of the injunction is not an element of  if it appears after hearing that although the applicant is TOO GREAT, it may be
recovery of the injunction bond. To require otherwise would make the filing of a bond a entitled to the injunction or restraining order, the issuance modified
useless formality. The dissolution of the injunction, even if the injunction was obtained in or continuance thereof, as the case may be, WOULD
good faith, amounts to the determination that the injunction is wrongfully obtained and a CAUSE IRREPARABLE DAMAGE TO THE PARTY OR PERSON
right of action on the injunction bond immediately accrues. ENJOINED WHILE THE APPLICANT can be fully
compensated for such damages as he may suffer,
The injunction bond is intended as a security for damages in case it is finally decided that the provided that the party or person enjoined files a bond in
injunction ought not to have been granted. Its principal purpose is to protect the enjoined the amount fixed by the court conditioned that he will pay
party against loss or damage by reason of the injunction, and the bond is usually condition all damages which the applicant may suffer by the denial
accordingly. or dissolution of the injunction or restraining order.

The damages sustained as a result of a wrongful obtained injunction may be recovered upon Sec.7. Service of copies of bonds; effect of disapproval –
the injunction bond which is required to be deposited with the court as provided in Sec.20, The party filing a bond shall forthwith serve a copy of such bond on the other party.
Rule 57 which is similarly applicable to preliminary injunction.
When injunction shall be dissolved:
Sec.6. Grounds for objection t o, or for motion of dissolution of, injunction or restraining order  applicant’s bond is found to be insufficient in amount
–  if the surety or sureties fails to justify
 a bond sufficient in amount with sufficient sureties approved after justification was
not filed

when injunction shall be restored or granted, as the case may be:

 if the bond of the adverse party is found to be insufficient in amount
 the surety or sureties thereon fail to justify a bond sufficient in amount with
sufficient sureties approved after justification is not filed forthwith

XXI. Objections to issuance (sec.6, Rule 58)

The application for injunction or restraining order may be denied upon:
1. showing of its insufficiency
2. on other grounds
3. if it appears after hearing that it would cause irreparable damage to the party or
person enjoined
4. the extent of the order is too great

XXIII. When is Final Injunction Issued

Sec.9. When final injunction granted – if after the trial of the action it appears that the
applicant is entitled to have the act or acts complained of permanently enjoined, the court
shall grant a final injunction perpetually
 restraining the party or person enjoined from the commission or
 continuance of the act or acts or confirming the preliminary mandatory injunction.

XXIV. Interim Rules on Intra-Corporate Controversies –

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SECTION 1. (a) Cases covered. - These Rules shall govern the procedure to be observed in civil
cases involving the following:
1. Devices or schemes employed by, or any act of, the board of directors,
business associates, officers or partners, amounting to fraud or
misrepresentation which may be detrimental to the interest of the
public and/or of the stockholders, partners, or members of any
corporation, partnership, or association;
2. Controversies arising out of intra-corporate, partnership, or association
relations, between and among stockholders, members, or associates;
and between, any or all of them and the corporation, partnership, or
association of which they are stockholders, members, or associates,
respectively;
3. Controversies in the election or appointment of directors, trustees,
officers, or managers of corporations, partnerships, or associations;
4. Derivative suits; and
5. Inspection of corporate books.
RULE 10
PROVISIONAL REMEDIES
SECTION 1. Provisional remedies. - A party may apply for any of the provisional remedies
provided in the Rules of Court as may be available for the purposes. However, no temporary
restraining order or status quo order shall be issued save in exceptional cases and only after
hearing the parties and the posting of a bond.
XXV. AM no. 07-11-08-SC
Special Rules of Court on Alternative Disputes
RULE 5: INTERIM MEASURES OF PROTECTION
Rule 5.1. Who may ask for interim measures of protection. - A party to an arbitration agreement
may petition the court for interim measures of protection.
Rule 5.2. When to petition. - A petition for an interim measure of protection may be made (a)
before arbitration is commenced, (b) after arbitration is commenced, but before the constitution
of the arbitral tribunal, or (c) after the constitution of the arbitral tribunal and at any time during
arbitral proceedings but, at this stage, only to the extent that the arbitral tribunal has no power
to act or is unable to act effectively.
Rule 5.3. Venue. - A petition for an interim measure of protection may be filed with the Regional
Trial Court, which has jurisdiction over any of the following places:
a. Where the principal place of business of any of the parties to arbitration is located;
b. Where any of the parties who are individuals resides;
c. Where any of the acts sought to be enjoined are being performed, threatened to be
performed or not being performed; or
d. Where the real property subject of arbitration, or a portion thereof is situated.
Rule 5.4. Grounds. - The following grounds, while not limiting the reasons for the court to grant
an interim measure of protection, indicate the nature of the reasons that the court shall consider
in granting the relief:
a. The need to prevent irreparable loss or injury;
b. The need to provide security for the performance of any obligation;
c. The need to produce or preserve evidence; or
d. The need to compel any other appropriate act or omission.
Rule 5.5. Contents of the petition. - The verified petition must state the following:
a. The fact that there is an arbitration agreement;
b. The fact that the arbitral tribunal has not been constituted, or if constituted, is
unable to act or would be unable to act effectively;
c. A detailed description of the appropriate relief sought;
d. The grounds relied on for the allowance of the petition
Apart from other submissions, the petitioner must attach to his petition an authentic copy of the
arbitration agreement.
Rule 5.6. Type of interim measure of protection that a court may grant.- The following, among
others, are the interim measures of protection that a court may grant:
a. Preliminary injunction directed against a party to arbitration;
b. Preliminary attachment against property or garnishment of funds in the custody of a
bank or a third person;
c. Appointment of a receiver;
d. Detention, preservation, delivery or inspection of property; or,
e. Assistance in the enforcement of an interim measure of protection granted by the
arbitral tribunal, which the latter cannot enforce effectively.
Rule 5.7. Dispensing with prior notice in certain cases. - Prior notice to the other party may be
dispensed with when the petitioner alleges in the petition that there is an urgent need to either
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(a) preserve property, (b) prevent the respondent from disposing of, or concealing, the property,
or (c) prevent the relief prayed for from becoming illusory because of prior notice, and the court
finds that the reason/s given by the petitioner are meritorious.
Rule 5.8. Comment/Opposition. - The comment/opposition must be filed within fifteen (15) days
from service of the petition. The opposition or comment should state the reasons why the
interim measure of protection should not be granted.
Rule 5.9. Court action. - After hearing the petition, the court shall balance the relative interests
of the parties and inconveniences that may be caused, and on that basis resolve the matter
within thirty (30) days from (a) submission of the opposition, or (b) upon lapse of the period to
file the same, or (c) from termination of the hearing that the court may set only if there is a need
for clarification or further argument.
If the other parties fail to file their opposition on or before the day of the hearing, the court shall
motu proprio render judgment only on the basis of the allegations in the petition that are
substantiated by supporting documents and limited to what is prayed for therein.
In cases where, based solely on the petition, the court finds that there is an urgent need to
either (a) preserve property, (b) prevent the respondent from disposing of, or concealing, the
property, or (c) prevent the relief prayed for from becoming illusory because of prior notice, it
shall issue an immediately executory temporary order of protection and require the petitioner,
within five (5) days from receipt of that order, to post a bond to answer for any damage that
respondent may suffer as a result of its order. The ex-parte temporary order of protection shall
be valid only for a period of twenty (20) days from the service on the party required to comply
with the order. Within that period, the court shall:
a. Furnish the respondent a copy of the petition and a notice requiring him to
comment thereon on or before the day the petition will be heard; and
b. Notify the parties that the petition shall be heard on a day specified in the notice,
which must not be beyond the twenty (20) day period of the effectivity of the ex-parte
order.
The respondent has the option of having the temporary order of protection lifted by posting an
appropriate counter-bond as determined by the court.
If the respondent requests the court for an extension of the period to file his opposition or
comment or to reset the hearing to a later date, and such request is granted, the court shall
extend the period of validity of the ex-parte temporary order of protection for no more than
twenty days from expiration of the original period.
After notice and hearing, the court may either grant or deny the petition for an interim measure
of protection. The order granting or denying any application for interim measure of protection in
aid of arbitration must indicate that it is issued without prejudice to subsequent grant,
modification, amendment, revision or revocation by an arbitral tribunal.
Rule 5.10. Relief against court action. - If respondent was given an opportunity to be heard on a
petition for an interim measure of protection, any order by the court shall be immediately
executory, but may be the subject of a motion for reconsideration and/or appeal or, if
warranted, a petition for certiorari.
Rule 5.11. Duty of the court to refer back. - The court shall not deny an application for assistance
in implementing or enforcing an interim measure of protection ordered by an arbitral tribunal on
any or all of the following grounds:
a. The arbitral tribunal granted the interim relief ex parte; or
b. The party opposing the application found new material evidence, which the arbitral
tribunal had not considered in granting in the application, and which, if considered,
may produce a different result; or
c. The measure of protection ordered by the arbitral tribunal amends, revokes,
modifies or is inconsistent with an earlier measure of protection issued by the court.
If it finds that there is sufficient merit in the opposition to the application based on letter (b)
above, the court shall refer the matter back to the arbitral tribunal for appropriate
determination.
Rule 5.12. Security. - The order granting an interim measure of protection may be conditioned
upon the provision of security, performance of an act, or omission thereof, specified in the
order.
The Court may not change or increase or decrease the security ordered by the arbitral tribunal.
Rule 5.13. Modification, amendment, revision or revocation of court’s previously issued interim
measure of protection. - Any court order granting or denying interim measure/s of protection is
issued without prejudice to subsequent grant, modification, amendment, revision or revocation
by the arbitral tribunal as may be warranted.
An interim measure of protection issued by the arbitral tribunal shall, upon its issuance be
deemed to have ipso jure modified, amended, revised or revoked an interim measure of
protection previously issued by the court to the extent that it is inconsistent with the subsequent
interim measure of protection issued by the arbitral tribunal.
Rule 5.14. Conflict or inconsistency between interim measure of protection issued by the court
and by the arbitral tribunal. - Any question involving a conflict or inconsistency between an
interim measure of protection issued by the court and by the arbitral tribunal shall be
immediately referred by the court to the arbitral tribunal which shall have the authority to
decide such question.
Rule 5.15. Court to defer action on petition for an interim measure of protection when informed
of constitution of the arbitral tribunal. - The court shall defer action on any pending petition for
an interim measure of protection filed by a party to an arbitration agreement arising from or in
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connection with a dispute thereunder upon being informed that an arbitral tribunal has been two (72) hours from issuance but shall immediately summon the parties fro conference and
constituted pursuant to such agreement. The court may act upon such petition only if it is immediately raffle the case in their presence. Thereafter, before the expiry of the seventy-two
established by the petitioner that the arbitral tribunal has no power to act on any such interim (72) hours, the Presiding Judge to whom the case is assigned shall conduct a summary hearing to
measure of protection or is unable to act thereon effectively. determine whether the TRO can be extended for another period until a hearing in the pending
application for preliminary injunction can be conducted. In no case shall the total period of the
Rule 5.16. Court assistance should arbitral tribunal be unable to effectively enforce interim TRO exceed twenty (20) days, including the original seventy-two (72) hours, for the TRO issued
measure of protection. - The court shall assist in the enforcement of an interim measure of by the Executive Judge.
protection issued by the arbitral tribunal which it is unable to effectively enforce.
4. With the exception of the provisions which necessarily involve multiple-sala stations, these
rules shall apply to single-sala stations especially with regard to immediate notice to all parties of
XXVII. SC Cir. 68-94 - all applications for TRO.
Sec. 1. No court in the Philippines shall have jurisdiction to issue any restraining order,
preliminary injunction, or preliminary mandatory injunction in any case, dispute, or controversy
involving
1. an infrastructure project, or
2. a mining, fishery, forest, or other natural resource development project of the
government, or
3. any public utility operated by the government, including among others public utilities
for the transport of the goods or commodities, stevedoring and arrastre contracts, to
prohibit any person or persons, entity or government officials from proceeding with, or
continuing the execution or implementation of any such project, or the operation of
such public utility, or pursuing any lawful activity necessary for such execution,
implementation or operation.

XXX. 20-95

ADMINISTRATIVE CIRCULAR NO. 20-95 September 12, 1995

TO: COURT OF APPEALS, SANDIGANBAYAN, COURT OF TAX APPEALS, REGIONAL TRIAL

COURTS, METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS, MUNICIPAL TRIAL
COURTS IN CITIES, MUNICIPAL CIRCUIT TRIAL COURTS, SHARI'A DISTRICT COURTS,
SHARI'A CIRCUIT COURTS AND ALL MEMBERS OF THE INTEGRATED BAR OF THE
PHILIPPINES

SUBJECT: RE: SPECIAL RULES FOR TEMPORARY RESTRAINING ORDERS AND

PRELIMINARY INJUNCTIONS.

1. Where an application for temporary restraining order (TRO) or writ of preliminary injunction is
included in a complaint or any initiatory pleading filed with the trial court, such compliant or
initiatory pleading shall be raffled only after notice to the adverse party and in the presence of
such party or counsel.

2. The application for a TRO shall be acted upon only after all parties are heard in a summary
hearing conducted within twenty-four (24) hours after the records are transmitted to the branch
selected by raffle. The records shall be transmitted immediately after raffle.

3. If the matter is of extreme urgency, such that unless a TRO is issued, grave injustice and
irreparable injury will arise, the Executive Judge shall issue the TRO effective only for seventy-
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 Rule 59
Receivership Receivership Replevin
The purpose is to preserve and take care the The purpose is to recover possession of
PERSONS THAT CAN BE APPOINTED AS RECEIVER
property disputed pending litigation property capable of manual delivery
1. Generally: Juridical person cannot be appointed as a receiver. Only natural person
wrongfully detained by the defendant
can be appointed as receiver by court order because the rules mandates that the
receiver, before entering upon his duties, shall be sworn to perform them faithfully
and obey the orders of the court (take an oath). Subject may either be personal or real Subject is only personal property
property
Exception: placement of banks or quasi-banks under receivership, the Monetary Board
shall Designate the Philippine Deposit Insurance Company (PDIC) whenever it finds The property is taken out from the defendant Property is recovered from the defendant
them pursuant to the provisions of the New Central Bank Act. and place under the administration and and direct a court officer to deliver the same
protection of a special officer appointed by to the right full owner or possessor to
the court restore him of the possession thereof
(Compañia General vs Gauzon, 20 Phil 261)
 An indifferent person There is only a mere deposit of the property There is a delivery of the property of
 Subject to the control of the court in litigation litigation
 Can exercise only those powers provided for by the rules
 Entitled to compensation as determined and fixed by the court
Po Pauco vs Siguenza, 52 Phil 241
A receiver is generally defined to be an indifferent person between the parties litigants,
appointed by the court and on behalf of all the parties, and not of the plaintiff or defendant Sheriff Receiver
only,: - Is a court officer of general character - Is a special officer
a. To receive and hold the thing or property in litigation, pending the suit
b. To receive the rents, issues, or profits of the land or thing in question - Not appointed for a certain judicial case - Appointed in relation to and within the
c. To hold possession and control of the property which is the subject-matter of the limits of his jurisdiction
litigation and - Who exercises and can exercise his - Whose duties are limited to his sphere of
d. To dispose of it in such manner as may be directed by the court functions within the limits of his action and do not extend further than
jurisdiction the case in which he was appointed
He is the arm and hand of the court, part of the machinery of the court, by which the rights of
the parties are protected. He is required not only to preserve the property, but to protect the
rights of all the parties interested.
- Funds in custody of a sheriff may be - Funds in custody of a receiver are not
within the reach of processes coming subject to any other judicial processes;
Generally a receiver has no authority to incur expense in the administration of his receivership,
from other judicial proceedings merely act as a depositary
without express permission of the court, except it be absolutely necessary to preserve the
- Those who have any claim to property or
property, and then only when, under special circumstances, he can not secure such authority
funds in the possession of a receiver,
from the court. He should administer the estate as economically as possible, to the end that the
must appear in the same proceeding in
interest of all the parties shall be conserved.
which said receiver discharges his duties,
and there, by motion or petition, allege
The amount of compensation of a receiver is fixed by the sound discretion of the court. The
and prove their claims.
court, in fixing the compensation of the receiver, should take into consideration the general
efficiency of the receiver in his administration of the property under his control.

Case: Po Pauco vs. Sigueza

G.R. NO. L-29295 ; October 22, 1928

Held: No. The sum mentioned is in the custody of a receiver and not of a sheriff.

Distinguish from replevin

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The sheriff is a court officer of a general character who is not appointed for certain judicial case;
the sheriff is an officer who exercises or can exercise his functions within the limits of his
jurisdiction. A receiver, on the other hand, is a special officer, appointed in relation to and within
a certain case or action, and whose duties are limited to his sphere of action, and do not extend
further than the case in which he was appointed.
For this reason, while the funds in the custody of a sheriff may be within the reach of processes
coming from other judicial proceeding, such is not the case with respect to those under the
custody of a depositary. From which it follows that those who, as in the discharges his duties,
and there, by motion or petition, allege and prove their claims.
Purpose
- (sec. 1, Rule 59) To protect and preserve the rights of the parties during the:
a) Pendency of the main action
b) Pendency of an appeal or as an aid in the execution of a judgment when the
writ of execution has been returned unsatisfied
- Receivership is aimed at preservation of and at making more secure, existing rights. It
cannot be used as an instrument for the destruction of those rights.
- Rule 59 presupposes that there is an action and that the property subject of the action
requires its preservation
Effect of the dismissal of main case
Berg vs Teus, 88 Phil 173 – The fact that the appointment of receiver, as the defendant
emphasizes, is an ancillary remedy is precisely one powerful reason why the case should not be
dismissed; dismissal of the main action would eliminate the only basis for the appointment of a
receiver and thus completely bar the door to any relief from mischiefs.
Granted only in extreme situations
 Vivares vs Reyes, 545 SCRA 80 – receivership is a harsh remedy to be granted only in
extreme situations. The power to appoint a receiver is a delicate one and should be
exercised with extreme caution and only under circumstances requiring summary relief or
where the court is satisfied that there is
a. imminent danger of loss,
b. the injury thereby cause be far greater than the injury sought to be averted.
The court should consider the consequences to all of the parties and the power should not
be exercised when it is likely to produce irreparable injustice or injury to private rights or
the facts demonstrate that the appointment will injure the interests of others whose rights
are entitled to as much consideration from the court as those of the complainant.
The appointment of a receiver, because of its drastic nature and of its character as a special
remedy under our Code of Civil Procedure, is a power which should be exercised with great
caution."
 Cannot be used an instrument for the destruction of the rights being preserve and taken
care of.
Where rights of a party are still to be determined; Propriety
Descallar vs CA, 224 SCRA 566 –
Ruling:
The Court of Appeals appear to have given no importance to the fact that the petitioner herein,
besides being the actual possessor of the disputed property, is also the registered owner
thereof. To elucidate, even if it were true that a former witness did not have the money to buy
those property, the land was titled to her name and not to the Austrian, who is also prohibited
to own lands in the Phils. There is no law which declares null and void a sale where the vendee
to whom the title of the thing sold is transferred or conveyed, paid the price with money
obtained from a third person. If that were so, a bank would be the owner of whatever is
purchased with funds borrowed from it by the vendee. Moreover, the property in question is
real property, hence, it is neither perishable or consummable. In any event, the private
respondent's rights and interests, may be adequately protected during the pendency of the case
by causing his adverse claim to be annotated on the petitioner's certificates of title.
Exhaustion of local remedies (important)
Bonaplata vs Amber, 2 Phil 395
Ruling: the Creditor is not bound. In the first place the appointment of a receiver is not proper.
As a general rule the appointment of a receiver is an equitable remedy and before such remedy
is resorted to, except in certain prescribed cases, the legal remedy must be exhausted. Hence,
B(the creditor) is entitled to a writ of mandamus to compel the issuance of execution on his
judgment.
Appointment (sec.1. Rule 59)
Sec.1. Appointment of receiver. – upon a verified application, one or more receivers of the
property subject of the action or proceedings may be appointed by the court where the action is
pending, or by the Court of Appeals or by the Supreme Court, or a member thereof.
Subject matter of receivership
Property subject of the action or proceedings; otherwise receivership would not lie.
[What: order granted by the court]
How: Upon a verified application
Who: one or more receivers of the property subject of the action or proceeding may be
appointed
Whom: - appointed by the court where the action is pending
- Court of Appeals,
- Supreme Court, or a member thereof
[why/ purpose: to protect the property which is the subject in the litigation.]
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 When may receivership issue (grounds)?
Receivership may issue in the following cases: (main case is still pending in court)
1. When it appears from the verified application, and such other proof as the court may
require:
a. That the party applying for the appointment of a receiver has an interest in the
property or fund
b. The property or fund is subject of the action or proceeding, and
c. That such property or fund is in danger of being lost, removed, or materially
injured unless a receiver be appointed to administer and preserve it
Commodities Storage & Ice Plant vs CA, 274 SCRA 439 –
The guiding principal is the prevention of imminent danger to the property. If an action by its
nature does not require such protection or preservation, said remedy cannot be applied for and
granted.
Petitioner ground for issuance of receivership: imminent danger, to life, health and peace of
mind of the inhabitants living near the ICE PLANT due to leakage.
The Supreme Court did not grant the remedy; because at the time the trial court issued the
order for receivership of the property, the problem had been remedied and there was no
imminent danger of another leakage. Whatever danger there was to the community and the
environment had already been contained.
Neither party to a litigation should be appointed as receiver –
The general rule is that neither party to a litigation should be appointed as receiver without the
consent of the other because a receiver should be a person indifferent to the parties and should
be impartial and disinterested. The receiver is not the representative of any of the parties but of
all of them to the end that their interests may be equally protected with the least possible
inconvenience and expense.
2. (there is a mortgage contract) When it appears in an action by the mortgagee for the
foreclosure of a mortgage:
a. That the property is in danger of being wasted or dissipated or materially injured,
and
b. That its value is probably insufficient to discharge the mortgage debt, or
c. That the parties have so stipulated in the contract of mortgage
3. After judgment
a. To preserve the property during the pendency of an appeal
b. To dispose of it according to the judgment
c. To aid execution when the execution has been returned unsatisfied or the
judgment obligor refuses to apply his property in satisfaction of the judgment
d. Otherwise to carry the judgment into effect
4. Whenever in other cases it appears that the appointment of a receiver is the most
convenient and feasible means of preserving, administering, or disposing of the property in
litigation.
During the pendency of an appeal
The appellate court may allow an application for the appointment of a receiver to be filed in and
decided by the court of origin and the receiver appointed to be subject to the control of said
court.
Sec.2. Bond on appointment of receiver –
Before issuing the order appointing a receiver the court shall
a. Require the applicant to file a bond executed to the party against whom the
application is presented, in an amount to be fixed by the court
Condition of the bond: the bond shall be filed upon the condition that the applicant shall pay all
damages that the adverse party may sustain by reason of the appointment of receiver in case
the applicant shall have procured such appointment without sufficient cause;
And the court may, in its discretion, at any time after the appointment, require an additional
bond as further security for such damages.
Jurisdiction
Harden vs Director of Prisons, GR no. L-2349
Ruling:
While a court cannot give its receiver authority to act in another state without the assistance of
the courts thereof (53 C. J., 390-391), yet it may act directly upon the parties before it with
respect to property beyond the territorial limits of its jurisdiction, and hold them in contempt if
they resist the court's orders with reference to its custody or disposition, Whether the property
was removed before or after the appointment of the receiver is likewise immaterial.
Grounds for appointment – receivership, when not proper -
“Property or fund which is subject to the action or proceeding”
Calo vs Roldan, 76 Phil 445 -
Ruling: No. the proper remedy is to apply for a preliminary prohibitory injunction. The remedy of
receivership will not lie because as the owner has more interest than persons in preserving and
administering it. Furthermore, the legal effect of the appointment is to take the real estate out
of the possession of the defendant before final adjudication of the rights of the parties. Hence,
would place the defendant economically disadvantage.
Ylarde vs Enriques, June 25, 1947
Ruling: No. Receivership will not lie. Because The land which is the subject matter of the suit
here is not in any danger of disappearing or being wasted. There is no pretense that it has any
permanent improvements or fixtures which produce income, rents or profits to be collected or
preserved. At the most a bond with sufficient sureties would be adequate to protect the
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plaintiffs from any possible injury consequent upon being deprived of the possession of the accounting of the harvest and to deposit the proceeds in case of sale thereof during the
property. pendency of the case would be to deprive them of their means of livelihood before the case is
decided on the merits.
Furthermore, plaintiff has no interest over the standing crops there being no sort of partnership
or formed between the plaintiff and defendant by a contract or operation of law. Their title to Attachment, preliminary injunction, receivership and replevin
the crops is contingent upon their success in proving their asserted title to the soil, which is still Are remedies to which parties litigant may resort for the preservation or protection of their
to be decided. And even if they should ultimately succeed in that, their rights to the products rights or interest, and for no other purpose, during the pendency of the principal action. If an
would still be dependent upon many factors yet undetermined. action, by its nature, does not require such protection or preservation, said remedies cannot be
applied for and granted.
Moreover, a receiver should not be appointed where the resulting injury therefrom would
probably greater than the injury ensuing from leaving the possession of the property Distinction –
disturbed. Otherwise, as receivership is a drastic, harsh, extreme remedy, the defendant shall be
divested with their means of livelihood. Attachment Preliminary Receivership Replevin
Injunction
When On grounds  Relief  When the Prov rem consist in
Rocha & Co vs Crossfield, 6 Phil 355 may under Sec.1 of demanded in applicant has an delivery, by order of
issue Rule 57 the plaintiff’s interest in the the court, of a
The case not being one in which a receiver could be appointed, the order making such complaint property and that personal property
appointment was void and was beyond the jurisdiction of the court, although that court had consist in such property by the defendant to
jurisdiction of the main action restraining which is subject the plaintiff, who
the to of the action or shall give a bond to
The case at bar does not fall within any of the provisions of this section. There is no allegation in commission litigation is in assure the return
the complaint, as has been before stated, that the plaintiff is the owner of any of the property or danger of being thereof or the
of Rocha & Co., nor is there any allegation that he has any lien thereon, nor are there any facts continuance lost, removed payment of
alleged in the complaint from which it could be inferred that he was owner of such property or of the acts materially injured damages to the
had any lien thereon. On the contrary, from the facts that are alleged in the complaint it would complained unless a receiver defendant in the
seem that his separation from the partnership of Carman & Co., left that partnership as a going for, either is appointed to plaintiff's action to
concern and did not dissolve it. The effect of the provisions of the articles of partnership which perpetually preserve it; or recover possession
are referred to in the complaint is that after the withdrawal of any partner the remaining or for a of the same
partners became the owners of all the assets of the partnership and he became a general limited  When the property fails, in
creditor of the partnership. period appointment of order to protect the
receiver is the plaintiff's right of
In the argument in this court it was claimed that this extraordinary remedy would not lie  It shall not most possession of said
because the plaintiff, Rocha & Co., had a right to appeal from the order appointing a receiver, issue when convenient and property, or
although that appeal could not be taken until a final judgment had been entered in the case. the feasible means prevent the
applicant’s of preserving it defendant from
Paranete vs Tan, Nov. 29, 1950 title has not damaging,
been clearly destroying or
RULING: Receivership is not proper. That order, in effect, made the clerk of court a sort of a established. disposing of the
receiver charged with the duty of receiving the proceeds of sale and the harvest of every year Status of Property in the property must be same during the
during the pendency of the case with the disadvantage that the clerk of court has not filed any the litigation in litigation. pendency of the
bond to guarantee the faithful discharge of his duties as depositary; and considering that in object cannot be Otherwise suit.
actions involving title to real property, the appointment of a receiver cannot be entertained attached. appointment of a
because its effect would be to take the property out of the possession of the defendant (dis- receiver will not
posses the defendant), except in extreme cases when there is clear proof of its necessity to save prosper
the plaintiff from grave and irremediable loss or damage, it is evident that the action of the
respondent judge is unwarranted and unfair to the defendants.

The question of ownership is herein involved and both parties seem to have documentary
evidence in support of their respective claims, and to order the defendants to render an
Page 26 of 96
Purpose: In order that To preserve the the object of Additional circumstance when the receiver may be discharged
defendant may status quo of appointing a receiver a. when the receiver’s bond is found to be insufficient in amount and failed to cure the
not dispose of the thing is to secure and same
the property subject of the preserve the b. when the court, muto proprio or upon motion by either party, shall determine that the
attached and action; in order property or thing in necessity of a receiver no longer exists.
thus secure the to preserve the controversy pending
satisfaction of rights of the the litigation.
any judgment plaintiff Cases:
that may be respecting the
recovered by subject of the Vivares vs Reyes, Feb. 13, 2008 –
the plaintiff action during
from the pendency of the Ruling: the receiver should be discharged upon posting of a counterbond. The rule states
defendant suit. that “application may be denied or the receiver discharged.” In statutory construction, the
word “may” has always been construed as permissive. If the intent is to make it mandatory
Oath and Bond of Receiver (sec.4, rule 59) or ministerial for the trial court to order the recall of the receiver upon the offer to post a
Before entering upon his duties, counterbond, the court should have used the word “shall.” Thus, the trial court has to
a. The receiver shall be sworn to perform his duty faithfully consider the posting of the counterbond in addition to other reasons presented by the
b. The receiver shall file a bond executed to such person and in such sum as the court offeror why the receivership has to be set aside.
may direct, to the effect that he will faithfully discharge his duties in the action or
proceeding and obey the orders of the court Furthermore, the appointment of a receiver shall not lie because a notice of lis penens has
been annotated on the titles of the disputed properties, thereby by affording adequate
Cases: protection thereto, thus, the property are no longer place in danger of being lost, removed
1. Citibank vs CA March 17, 1999 or materially injured. Once the annotation is made, any subsequent conveyance of the lot
Ruling: yes. The appellate court is correct. With respect to the appointment of a receiver, by the respondent would be subject to the outcome of the litigation since the fact that the
the lower court gravely abuse it discretion for not having complied with the requirement of properties are under custodial egis is made known to all and subdry by operation of law.
filing a bond and taking of oath by the receiver appointed. Under the rules, (see Sec.4, Rule Hence, there is no need for a receiver to look after the disputed properties.
59, above).
Platon vs Sandoval, 74 Phil 731
Denial of application or discharge of receiver (sec.3, Rule 59)
DENIED: Ruling: yes the receiver should b discharged. Under the rules, a receiver may be discharged
The application may be denied when: when the court, upon motion or motu prorprio, determines that the necessity for a receiver
1. The adverse party files a bond executed to the applicant no longer exist. Furthermore, the receiver, being an officer of the court and not the agent
2. Amount of bond is fixed by the court or representative of either party to the action, has no legal interest or standing to question
3. the bond is conditioned upon that such party shall pay the applicant(applicant for the the court's determination that the necessity for the continuation of the receivership has
appointment) all damages he may suffer by reason of the acts, omissions or other ceased to exist.
matters specified in the application as ground for such appointment
Martinez vs Grano, 49 Phil 214
Additional circumstance when application may be denied:
a. when applicant’s bond is found to be insufficient in amount and failed to cure the Held: There cannot be the slightest doubt of the power of the lower court to remove a receiver
same and terminate a receivership under section 180 of the Code of Civil Procedure; and in view of the
attitude of the appellant, the impropriety of his longer remaining in office is apparent.
DISCHARGED:
The receiver may be discharged when: But it is claimed by the appellant that he has made expenditures necessary to the care and
1. if it is shown that his appointment was obtained without sufficient cause conservation of the property over and above the proceeds obtained from the coconuts produced
2. when the adverse party files a bond executed to the applicant by the land comprised in the receivership; and it is contended that the lower court had no power
3. the amount of bond is fixed by the court to turn him out at least as long as the expenditures made by him have not been reimbursed. This
4. the bond is conditioned that such party will pay to the applicant all damages he may contention seems to us to come with bad grace from a receiver whose attitude about the
suffer by reason of the acts, omissions, or other matters specified in the applications as receivership property has been such as that exhibited by the appellant, and particularly in the
grounds for such appointment light of his refusal to render any account of the income from the property in his possession. The

Page 27 of 96
contents of the voluminous record which we have examined carefully and the history of the
proceedings afford much material for unfavorable comment upon the attitude of the appellant,
but inasmuch as the case turns in the end upon the efficiency of Judge Paredes' order declaring
the sale a nullity, any comment is unnecessary.
Powers of Receiver
The receiver shall have the power to:
1. bring and defend, in such capacity, actions in his own name
2. take and keep possession of the property in controversy
3. receive rents,
4. collect debts duet to himself as receiver or to the fund, property estate, person or
corporation of which he is the receiver
5. compound for and compromise the same
6. make transfer
7. pay outstanding debts
8. dived the money and other property that shall remain among the persons legally entitled
to receive the same
9. generally, do such acts respecting the property as the court may authorize
Note: funds in the hands of a receiver may be invested only by order of the court upon the
written consent of all the parties to the action.
Note: no action may filed by or against a receiver without leave of the court which appointed
him.
Actions against receivers; leave of court (sec.6)
No action may be filed by or against a receiver without leave of court which appointed him.
GR: leave of court/authority which appointed the receiver is required before an action may be
filed by or against a receiver.
Oredain vs BF Homes
Ruling.
Yes, it has the capacity to sue. . In addition, the seller, petitioner Orendain, is being sued in his
individual capacity for the unauthorized sale of the property in controversy. Hence, we find no
cogent reason to sustain petitioner’s manifestation that the resolution of the instant
controversy depends on the ratification by the SEC of the acts of its agent or the receiver
because the act of Orendain was allegedly not within the scope of his authority as receiver.
Furthermore, the determination of the validity of the sale to LSFSIPI will necessitate the
application of the provisions of the Civil Code on obligations and contracts, agency, and other
pertinent provisions.
Liability for refusal or neglect to deliver property to receiver (sec.7) –
A person who refuses or neglects, upon reasonable demand, to deliver to the receiver all the
properties within his power or control, subject of or involved in the action or proceeding, or in
case of disagreement, as determined and ordered by the court, may be:
1. Punished for contempt and
2. Shall be liable to the receiver for the properties refused or neglected to be
surrendered
3. Together with all damages that may have been sustained by the party or parties
entitled thereto as a consequence of such refusal or neglect
Termination of receivership
1. The court, motu proprio or upon motion of either party, shall determine that the necessity
for a receiver no longer exists
2. After due notice to all parties and hearing, it shall:
a. Settle the accounts of the receiver
b. Direct the delivery of the funds and other property in his possession to the person
adjudged to be entitled to receive them
c. Order the discharge of the receiver from further duty as such
Compensation of receiver
The court shall allow the receiver such reasonable compensation as the circumstances of the
case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires.
Case:
Traders Royal Bank vs IAC, June 17, 1997
Receiver’s compensation is to be charged against the defeated party or the prevailing
litigant may be made to share the expense, as justice requires.
Ruling:
The defeated party should be responsible for the compensation of the receiver. Under the
rules, the court shall allow the receiver such reasonable compensation as the circumstances
of the case warrant, to be taxed as costs against the defeated party, or apportioned, as
justice requires.
It is, therefore, clear that when the services of a receiver who has been properly appointed
terminates, his compensation is to be charged against the defeated party, or the prevailing
litigant may be made to share the expense, as justice requires. Consequently, the trial
court's order approving TRB's compensation to be charged solely against the funds under its
receivership is without legal justification; hence, it was correctly reversed by the Court of
Appeals.
Judgment to include recovery against sureties( sec.9) –
The amount, if any, to be awarded to any party upon any bond filed in accordance with the
provisions of this rule, shall be claimed, ascertained and granted under the same procedure
prescribed in Sec. 20, of rule 57.
Proceedings in Receivership and liquidation
Conservatorship not a pre-condition
Should the designation of a conservator a pre-condition to the designation of a receiver?
No. the designation of a conservator is not a precondition to the designation of a receiver.
Hence, a bank may be place under a receivership without the necessity of placing it first under
conservatorship.
Who shall appoint a receiver?
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- vested exclusively with the monetary Board
Sec.30 of the new central bank act –
Persons may be appointed as receiver of a bank or quasi bank:
a. not quasi-banks -
 Philippine Deposit Insurance Corporation (PDIC)
b. For quasi-banks
 PDIC, or
 Any person of recognized competence in banking or finance may be designed
as receiver
Grounds for receivership –
Whenever, upon report of the head of the supervising or examining department, the Monetary
Board finds that a bank or quasibank:
a. is unable to pay its liabilities as they become due in the ordinary course of business:
provided that this shall not included inability to pay caused by extraordinary demands
induced by financial panic in the banking community;
b. by the Bangko Sentral, to meet its liabilities
c. cannot continue in business without involving probable losses to its depositors or
creditors
d. has willfully violated a cease and desist order that has become final, involving acts or
transactions which amount to fraud or a dissipation of the assets of the institution
in which cases, the Monetary Board may summarily and without need for prior hearing forbid
the institution from doing business in the Philippines and designate PDIC as receiver of the
banking institution.
Duties and powers of the receiver in banking laws:
a. shall immediately gather and take charge of all the assets and liabilities of the
institution
b. administer the same for the benefit of its creditors
c. exercise the general powers of a receiver under the rules of court
d. shall not pay or commit any act that will involve the transfer or disposition of any
asset of the institution, except administrative expenditures
e. may place the funds of the institution in nonspeculative investments
f. the receiver shall determine as soon as possible, but not later than 90 days from take
over, whether the institution may be rehabilitated or otherwise place in such a
condition so that it may be permitted to resume business with safety to its depositors
and creditors and the general public: provided, that any determination for the
resumption of business of the institution shall be subject to prior approval of the
Monetary board.
When shall there be liquidation -
If the receiver determines that the institution cannot be rehabilitated or permitted to resume
business in accordance with the next preceding paragraph, the Monetary Board shall notify in
writing the board of directors of its findings and direct the receiver to proceed with the
liquidation of the institution.
Placement under Conservatorship (sec.29.New Central Bank Act)
Who appoints a conservator?
The designation of a conservator is vested exclusively with the Monetary Board.
What are the grounds for appointment of conservator –
Based on a report submitted by appropriate supervising or examining department, the Monetary
Board finds that a bank or a quasi-bank is in state of:
1. continuing inability, or
2. unwillingness to maintain a condition of liquidity deemed adequate to protect the
interest of depositors and creditors
Powers of the Conservator
1. take charge of the assets, liabilities and the management thereof
2. reorganize the management
3. collect all monies and debts due said institution, and
4. exercise all powers necessary to restore its viability
5. shall report and be responsible to the Monetary Board
6. shall have the power to overrule or revoke the actions of the previous management
and board of directors of the bank or quasi-bank
Problem:
The conservator of B bank revoked a contract previously entered into by the bank on
the ground that the lands subject of said contract presently command a much higher
price than when it was sold. Is the revocation valid?
Ans: No. while lands may currently command a much higher-price, a contract of sale
entered into by a bank cannot be revoked if at the time of transaction, the price
agreed upon was reasonable. To rule otherwise is to reward lawlessness and delays in
the fulfillment of binding contracts. Respect for perfected contracts and non-
impairment of obligations must be upheld under the rule of law and blind justice.
Qualifications of conservator
The conservator should be competent and knowledgeable in bank operations and management
Period of Conservatorship
The conservatorship shall not exceed 1 year
When shall conservatorship be terminated:
When the Monetary board:
1. shall be satisfied that the institution can continue to operate on its own and the
conservatorship is no longer necessary
2. should determine that the continuance in business of the institution would involve
probable loss to its depositors or creditors, in which case, the provision on receivership
and liquidation shall apply
Receivership; Conservatorship; and Liquidation under New Central Bank Act (RA no. 7653)
Page 29 of 96
Legal Basis: (Sec.29 – 30, NCBA)
Note: The Designation of conservator is not a precondition to the designation of a receiver.
PRINCIPAL CONSERVATORSHIP
DISTINCTION
Who appoints Appointment shall be vested exclusively with the Monetary Board
Who are Natural person competent and
appointed knowledgeable in bank
operations and management
Duration The conservatorship shall not
exceed 1 year
Grounds Based on the report submitted
by the appropriate supervising
or examining department, the
Monetary Board finds that a
bank or quasi-bank is:
a. In a state of continuing
inability, or
b. Unwillingness to maintain
a condition of liquidity
deemed adequate to
protect the interest of
depositors and creditors
RECEIVERSHIP
1. For banks not quasi-banks
 Philippine Deposit Insurance
Corporation (PDIC)
2. For qausi-banks
 PDIC, or
 Any person of recognized
competence in banking or
finance
The receiver shall ASAP, but not later
than 90 days from take over, whether
the institution:
1. May be Rehabilitated or
2. Can resume business with safety to
its depositors and creditors and
the General Public
If the receiver determines that the
institution cannot be rehabilitated or
permitted to resume business; the
Monetary Board shall notify the Board
of Directors and shall direct the receiver
to proceed with the liquidation of the
institution
Based on the report of the supervising
or examining department, the
Monetary Board finds that a bank or
quasi-bank:
a. Is unable to pay its liabilities when
due and demandable; provided
that this shall not include inability
to pay caused by extraordinary
demands induced by financial
panic in the banking community
b. By the bangko sentral, to meet its
liabilities
c. Cannot continue in business
without involving probable losses
to its depositors or creditors
d. Has willfully violated a cease and
desist order under sec.37 of NCBA
that has become final, involving
acts or transactions which amount
to fraud or a dissipation of the
assets of the institution
Duties and
powers 1. Shall take charge of the 1. Shall immediately gather and take
assets, liabilities and charge of all the assets and
management, liabilities of the institution
2. Administer the same
2. Reorganize the management 3. Exercise the general powers of a
receiver under the Revised Rules of
3. Collect all monies and debts Court
due said institution 4. Shall not pay or commit any act
that will involve the transfer or
4. Exercise all powers disposition of any asset of the
necessary to restore its institution, except administrative
viability expenditures
5. May deposit or place the funds of
5. Report and be responsible to the institution in nonspeculative
the Monetary Board investments
6. Determine whether the institution
6. Shall have the power to be rehabilitated or permitted to
overrule or revoke the resume business with safety to its
actions of the previous depositors and creditors and to the
management and board of general public
directors of the Bank or
Quasi-bank 7. When the institution is placed
under liquidation; the receiver
shall:
a. Convert the assets of the
institution to money to pay the
debts of such institution
b. Institute an action as may be
necessary to collect and
recover accounts and assets of
institution
c. defend any action against, the
institution
When shall it be When the Monetary Board is: IF when the receiver determines that:
terminated a. Satisfied that the a. The institution cannot be
institution can continue to rehabilitated, or
operate on its own and b. Permitted to resume business
the conservatorship is no
longer necessary The Monetary Board shall notify in
b. Based on the writing the Board of Directors of its
conservator’s reports, findings and direct the receiver to
determined that the proceed with the liquidation of the
continuance in business of institution.
the institution would
Page 30 of 96
 involve probable loss to
its depositors and
creditors. In which case
the institution shall be
placed under receivership
Effects when an banking institution place under receivership or liquidation:
a. The assets of an institution under receivership or liquidation shall be deemed in
custodia legis in the hands of the receiver and
b. shall, form the moment the institution was place under such receivership or
liquidation, be exempt from order of garnishment, levy, attachment or execution.
Liquidation Procedure:
When shall banks or quasi-banks be placed under liquidation?
when the receiver determines that the institution cannot be:
a. rehabilitated or
b. permitted to resume business
in which case the, the Monetary Board shall notify in writing the Board of Directors of its findings
and shall direct the receiver to proceed with the liquidation of the institution. The receiver shall:
1. file a petitioner for assistance in the liquidation of the institution with the RTC
2. upon acquiring jurisdiction, the court shall, upon motion by the receiver after due
notice, adjudicate disputed claims against the institution, assist the enforcement of
individual liabilities of the stockholders, directors and officers, and decide on the other
issues as may be material to implement the liquidation plan adopted.
3. the cost of the proceedings from the assets of the institution.
4. Convert the assets of the institution to money for the purpose of paying the debts of
such institution
5. Institutes such any actions as may be necessary to collect and recover accounts and
assets of, or defend any action against, the institution.
Interim Rules of Procedure for Intra-Corporate Controversies; Rule 9
Who has jurisdiction?
 The RTC
Venue:
All actions covered by the Interim rules of procedures for intra-corporate controversies shall be
commenced and tried in the RTC which has jurisdiction over the principal office of the
corporation, partnership, or association concerned. Where the principal office of the
corporation, partnership or association is registered in the SEC as Metro Manila, the action must
be filed in the City or Municipality where the head office is located.
Rule 9
Management committee
Sec.1. Creation of a management committee –
A party may apply for the appointment of a management committee for the corporation,
partnership or association, when there is imminent danger of:
1. Dissipation, loss wastage or destruction of assets or other properties;
2. Paralyzation of its business operations which may be prejudicial to the interest of the
minority stockholders, parties-litigants or the general public.
Sec.2. Receiver –
In the event the court finds the application to be sufficient in form and substance, the court shall
issue an order;
a. appointing a receiver of known probity, integrity and competence and without any
conflict of interest to immediately take over the corporation, partnership or
association, specifying such powers as it may deem appropriate under the
circumstances;
b. fixing the bond of the receiver
c. directing the receiver to make a report as the affairs of the entity under receivership
and on the other relevant matters within 60 days from the time he assumes office
d. prohibiting the incumbent management of the company, partnership, or association
from selling, encumbering, transferring, or disposing in any manner any of its
properties except payment in full of all administrative expenses incurred after the
issuance of the order
Sec.3. Receiver and management committee as officers of the court –
The receiver and the members of the management committee in the exercise of their powers
and performance of their duties are considered officers of the court and shall be under its
control and supervision.
Sec.9. immunity from suit –
The receiver and members of the management committee and the persons employed by them
shall not be subject to any action, claim or demand in connection with any act done or omitted
by them in good faith in the exercise of their functions and powers. All official acts and
transactions of the receiver or management committee duly approved or ratified by the court
shall render them immune from any suit in connection with such act or transaction.
Sec.12. Discharge of the management committee –
The management committee shall be discharged and dissolved under the following
circumstances;
1. whenever the court, on motion or motu proprio, has determined that the necessity for
the management committee no longer exist;
2. by agreement of the parties; and
3. upon termination of the proceedings
upon its discharged and dissolution, the management committee shall submit its final report and
render accounting of its management within such reasonable time as the court may allow.
Powers and function of management committee: key - IEREREDPPUIGBRMRAE
(1) To investigate the acts, conduct, properties, liabilities, and financial condition of the
corporation, association or partnership under management; I
Page 31 of 96
(2) To examine under oath the directors and offices of the entity and any other
witnesses that it may deem appropriate; E
(3) To report to the court any fact ascertained by it pertaining to the causes of the
problems, fraud, misconduct, mismanagement and irregularities committed by the
stockholders, directors, management or any other person; R
(4) To employ such person or persons such as lawyers, accountants, auditors,
appraisers and staff as are necessary in performing its functions and duties as
management committee; E
(5) To report to the court any material adverse change in the business of the
corporation, association or partnership under management; R
(6) To evaluate the existing assets and liabilities, earnings and operations of the
corporation, association or partnership under management; E
(7) To determine and recommended to the court the best way to salvage and protect
the interest of the creditors, stockholders and the general public, including the
rehabilitation of the corporation, association or partnership under management; D
(8) To prohibit and report to the court any encumbrance, transfer, or disposition of the
debtor's property outside of the ordinary course of business or what is allowed by the
court; P
(9) To prohibit and report to the court any payments made outside of the ordinary
course of business; P
(10) To have unlimited access to the employees, premises, books, records and financial
documents during business hours; U
(11) To inspect, copy, photocopy or photograph any document, paper, book, account
or letter, whether in the possession of the corporation, association or partnership or
other persons; I
(12) To gain entry into any property for the purposes of inspecting, measuring,
surveying, or photographing it or any designated relevant object or operation thereon;
G stockholders.
(13) To bring to the attention of the court any material change affecting the entity's
ability to meet its obligations; B
(14) To revoke resolutions passed by the Executive Committee or Board of
Directors/Trustees or any governing body of the entity under management and pass
resolution in substitution of the same to enable it to more effectively exercise its
powers and functions; R
(15) To modify, nullify or revoke transactions coming to its knowledge which it deems
detrimental or prejudicial to the interest of the entity under management; M
(16) To recommend the termination of the proceedings and the dissolution of the
entity if determines that the continuance in business of such entry is no longer feasible
or profitable or no longer works to the best interest of the stockholders, parties-
litigants, creditors or the general public; R
(17) To apply to the court for any order or directive that it may deem necessary or
desirable to aid it in the exercise of its powers and performance of its duties and
functions; and A
(18) To exercise such other powers as may, from time to time, be conferred upon it by
the court.
Rules of Procedure for Corporate Rehabilitation
What: Corporate Rehabilitation
Who: Obligor-Debtor
When: Filing of Petition for Corporate Rehabilitation
Where: Trial Court, Court of Appeals, or the Supreme Court
Principle: Petition for corporate rehabilitation only requires the consent of the directors or
stockholders in “consonance with the existing laws”. This is to avoid delay in the
implementation of the plan because of the refusal of the directors or stockholders to fully
cooperate in the plan.
Case: Chas Realty & Development Corp. vs. Talavera & Concepcion
G.R. No. 151925. February 6, 2003.
Ruling:
Rule 4, Section 2(k), of the Interim Rules on Corporate Rehabilitation provides:
"Sec. 2. Contents of the Petition. – The petition filed by the debtor must be verified and must set
forth with sufficient particularity all the following material facts: (a) the name and business of
the debtor; (b) the nature of the business of the debtor; (c) the history of the debtor; (d) the
cause of its inability to pay its debts; (e) all the pending actions or proceedings known to the
debtor and the courts or tribunals where they are pending; (f) threats or demands to enforce
claims or liens against the debtor; and (g) the manner by which the debtor may be rehabilitated
and how such rehabilitation may benefit the general body of creditors, employees, and
Nowhere in the aforequoted paragraph can it be inferred that an affirmative vote of
stockholders representing at least two-thirds (2/3) of the outstanding stock is invariably
necessary for the filing of a petition for rehabilitation regardless of the corporate action that the
plan envisions. Just to the contrary, it only requires in the filing of the petition that the corporate
actions therein proposed have been duly approved or consented to by the directors and
stockholders "in consonance with existing laws." The requirement is designed to avoid a
situation where a rehabilitation plan, after being developed and judicially sanctioned, cannot
ultimately be seen through because of the refusal of directors or stockholders to cooperate in
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the full implementation of the plan. In fine, a certification on the approval of stockholders is Therefore, in this case, it is necessary that the principal defendant spouses and the adverse
required but the question, whether such approval should be by a majority or by a two-thirds possessor Mr. Reyes, be impleaded for complete determination of the controversy. Otherwise,
(2/3) vote of the outstanding capital stock, would depend on the existing law vis-à-vis the BA Finance cannot recover the subject property through replevin even though he stand as a
corporate act or acts proposed to be done in the rehabilitation of the distressed corporation. mortgagee who has interest or titled thereto.

RULE 60 REPLEVIN ATTACHMENT

REPLEVIN To recover personal property capable of manual Is have the property put in the custody of
delivery from the defendant the court to secure the satisfaction of the
Definition; Replevin – Bar 1999 judgment that may be rendered in favor
Replevin is both a form of a principal remedy and of a provisional remedy. It may either refer to of the plaintiff at some future time
the: The property either belongs to the plaintiff or one The property does not belong to the
1. Action itself – to regain possession of personal chattels being wrongfully detained from over which the plaintiff has a right of possession plaintiff but to the defendant
the plaintiff by another
2. Provisional remedy – while the main action is pending, the plaintiff may ask the court Only extends to personal property capable of Extends to all kinds of property, real or
to allow him to have the possession of the thing and hold it pendent lite manual delivery personal or even incorporeal property
Property under custodia legis cannot be the object Can be availed of even if the property is in
The action of replevin as main action is primarily possessory in nature and generally determines of replevin custodial egis.
nothing more than the rights of possession (BA Finance Corp vs CA, July 5, 1996).
Must show that plaint has a title to personal Must show that the property is being
property and is wrongfully detained by the removed, concealed or disposed of
Nature of Replevin
defendant
Replevin is described as a mixed action, being partly in rem and partly in personam
1. In rem
 Insofar as the recovery of specific property is concerned
Sec.1. application – a party praying for the recovery of the possession of personal property may,
 The gist of the action is the right of the plaintiff to obtain possession of specific
at the commencement of the action or at any time before answer, apply for an order for the
personal property by reason of his being the owner or of his having a special interest
delivery of such property to him, in the manner hereinafter provided.
therein
 Generally, the person in possession of the property sought to be relevied is ordinary Who may apply for replevin?
the proper and only defendant, and the plaintiff is not require to join as defendants
 a party praying for recovery of possession of personal property
other persons claiming a right on the property but not in possession thereof.
when may he apply?
2. In Personam
 At the commencement of the action, or
 As regards to damages involved
 At any time before answer
BA Finance Corp vs CA - July 5, 1996
How to apply? Sec.2. affidavit and bond -
GR: when the right of the plaintiff to the possession of the specific property is so conceded or
1. Filing a verified affidavit
evident, the action need only be maintained against him who so possesses the property.
a. It can be of his own, or
b. That of some other person
Ex: in case the right of possession on the part of the plaintiff, or his authority to claim such
possession or that of his principal, is put to great doubt, it could become essential to have other
2. That such applicant or some other person must show in his affidavit that he personally who
persons involved and accordingly impleaded for a complete determination and resolution of the
knows the facts:
controversy.
a. That the applicant, particularly describing it, is:
i. The owner of the property claimed, or
Reasoning: because all the party concerned is an indispensable party. And an indispensable
ii. Is entitled to the possession thereof
party is whose interest will be affected by the court’s action in the litigation and without whom
no final determination of the case can be had. The party’s interest in the subject matter of the
b. That the property is wrongfully detained by the adverse party, alleging the cause of
suit and in the relief sought are so inextricably intertwined with the other partie’s that his legal
detention thereof according to the best of his knowledge, information and belief;
presence as a party to the proceeding is an absolute necessity. In his absence there cannot be a
resolution of the dispute of the parties before the court which is effective, complete or
c. That the property has not been:
equitable.
i. Distrained, or
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 ii. Taken for a tax assessment or fine pursuant to law 2. For the payment to the adverse party of such sum as he may recover from the
iii. Seized under a writ of execution or preliminary attachment applicant in the action
iv. Placed under custodial egis
v. Or if seized, that it is exempt from such seizure or custody Case:

d. And, the actual market value of the property 1. Citibank vs CA – March, 17, 1999

Case:
1. Servicewide Specialist vs CA – Gr no. 110048, Nov. 19, 1999
– in case the right of possession on the part of the plaintiff, or his authority to claim such
possession or that of his principal, is put to great doubt it could become essential to have
other persons involved and impleaded for a complete determination and resolution of the
controversy.
Ruling: the complaint for replevin should be dismissed. The debtor-mortgagor as well as the
adverse possessors should be impleaded in the complaint as they stand as an indispensable
party therein. Leticia Laus, being an indispensable party, should have been impleaded in the
complaint for replevin and damages. Without the presence of the indispensable parties to a
suit or proceeding, a judgment of a court cannot attain real finality.
HELD: When the petitioner failed to declare the actual value of the machineries and equipment
subject of the replevin suit in the affidavit, there was non-compliance with Section 2, Rule 60 of
the Revised Rules of Court.
Also When the petitioner filed a bond in the amount P400,000.00 which is twice the amount of
P200,000.00 as probable value declared in its complaint, there was non-compliance with Section
2, Rule 60, because the Rules of Court requires that bonds should be based on the actual value
and not on just probable value because it is intended to indemnify the defendant against any
loss that he may suffer by reason of its being compelled to surrender the possession of the
disputed property pending trial of the action, and the same may also be answerable for damages
if any when judgment is rendered in favor of the defendant or the party against whom a writ of
replevin was issued and such judgment includes the return of the property to him.
Petition DISMISSED.

GR: where the right of the plaintiff to the possession of the specified property is so
conceded or evident, the action need only be maintained against him who so possesses the
property.
Ex: in case the right of possession on the part of the plaintiff to claim such possession or
that of his principal, is put to great doubt, it could become essential to have other persons
involved and impleaded for a complete determination and resolution of the controversy.
2. Factoran vs CA – August 22, 2000
Property lawfully taken by virtue of legal process is deemed to be in custodia legis. 39
When a thing is in official custody of a judicial or executive officer in pursuance of his
execution of a legal writ, replevin will not lie to recover it. 40 Otherwise, there would be
interference with the possession before the function of law had been performed as to the
process under which the property was taken.

Indispensable vs not indispensable party Ruling: It was not proper.

Indispensable party
- One whose interest will be affect by
the court’s action in the litgation,
without whom no final determination
of the case can be had
Not indispensable party
- His interest in the controversy is distinct
and divisible from the interest of the
other parties and will not necessarily be
prejudiced by a judgment which does
complete justice to the parties in court
A writ of replevin does not just issue as a matter of course upon the applicant's filing of a
bond and affidavit. The mere filing of an affidavit cannot justify the issuance of a writ of
replevin.
Wrongful detention by the defendant of the properties sought in an action for replevin
must be satisfactorily established. If only a mechanistic averment thereof is offered, the
writ should not be issued

- - Merely complete relief between him an In the case at bar, the subject narra lumber and six-wheeler truck were confiscated by
dthose already parties to the action or will petitioner Secretary pursuant to Section 68-A of P.D. No. 705, as amended by Executive
simply avoid multiple litigation Order (E.O.) No. 277

The applicant must also give a bond, executed to the adverse party in double the value of
the property as state in the affidavit.
Purpose of the bond:
1. For the return of the property to the adverse party if such return be adjudged and
Issuance of the confiscation order by petitioner Secretary was a valid exercise of his
power under Sec. 68-A of P.D. No. 705. By virtue of said order, the narra lumber and six-
wheeler truck of private respondents were held in custodia legis and hence, beyond the
reach of replevin.
Property lawfully taken by virtue of legal process is deemed to be in custodia legis. 39 When
a thing is in official custody of a judicial or executive officer in pursuance of his execution of
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 a legal writ, replevin will not lie to recover it. 40 Otherwise, there would be interference
with the possession before the function of law had been performed as to the process
under which the property was taken. 41 So basic is this doctrine that it found inclusion in
the 1997 amendments introduced to the Rules of Civil Procedure. Thus, Sec. 2(c), Rule 60
of the 1997 Rules of Civil Procedure provides that:
Affidavit and bond. — Upon applying for such order the plaintiff must show
by his own affidavit or that of some other person who personally knows the
facts:
xxx xxx xxx
(c) That the property has not been distrained or taken for a tax assessment
or fine pursuant to law, or seized under a writ of execution, or preliminary
attachment or otherwise placed under custodia legis, or if so seized, that it is
exempt from such seizure or custody; . . .
Sec.3. Order –
Upon the filing of such affidavit and approval of the bond, the court shall issue an order and the
corresponding writ of replevin describing the personal property alleged to be wrongfully
detained and requiring the sheriff forthwith to take such property into his custody.
Case:
[G.R. No. 137705. August 22, 2000]
SERG’S PRODUCTS, INC., and SERGIO T. GOQUIOLAY, petitioners, vs. PCI LEASING AND
FINANCE, INC., respondent.
RULING: The Petition is not meritorious. Petitioners contend that the subject machines used in
their factory were not proper subjects of the Writ issued by the RTC, because they were in fact
real property. Serious policy considerations, they argue, militate against a contrary
characterization.
Rule 60 of the Rules of Court provides that writs of replevin are issued for the recovery of
personal property only. In that sense, petitioners are correct in arguing that the said machines
are real, not personal, property pursuant to Article 415 (5) of the Civil Code.
Be that as it may, we disagree with the submission of the petitioners that the said machines are
not proper subjects of the Writ of Seizure. The Court has held that contracting parties may
validly stipulate that a real property be considered as personal. After agreeing to such
stipulation, they are consequently estopped from claiming otherwise. Under the principle of
estoppel, a party to a contract is ordinarily precluded from denying the truth of any material fact
found therein.
In the present case, the Lease Agreement clearly provides that the machines in question are to
be considered as personal property. Specifically, Section 12.1 of the Agreement reads as
follows:1
“12.1 The PROPERTY is, and shall at all times be and remain, personal
property notwithstanding that the PROPERTY or any part thereof may now be, or
hereafter become, in any manner affixed or attached to or embedded in, or
permanently resting upon, real property or any building thereon, or attached in any
manner to what is permanent.”
Clearly then, petitioners are estopped from denying the characterization of the subject machines
as personal property. Under the circumstances, they are proper subjects of the Writ of Seizure.
It should be stressed, however, that our holding -- that the machines should be deemed personal
property pursuant to the Lease Agreement – is good only insofar as the contracting parties are
concerned. Hence, while the parties are bound by the Agreement, third persons acting in good
faith are not affected by its stipulation
Sec.4. Duty of the Sheriff –
The property is in the possession of the adverse party, or his agent, and retain it in his custody
Upon receiving such order, the sheriff shall:
1. Serve a copy of the order, the application, affidavit and bond on the adverse party
2. Forthwith take the property
The Property or any part thereof is concealed in a building
The sheriff shall:
1. Serve a copy of the order, the application, affidavit and bond on the adverse party
2. Demand its delivery
3. and if not delivered, he must cause the building or enclosure to be broken open and
take the property into his possession
After the sheriff has taken possession of the property:
1. he must keep it in a secure place
2. shall be responsible for its delivery to the party entitled thereto upon receiving his fees
and necessary expenses for taking and keeping the same
3. Return papers – (sec.8)The sheriff must file the order, with his proceedings indorsed
thereon, with the court within 10 days after taking the property mentioned therein.
Enforcement –
Fernandez vs The international Corporate Bank, Oct. 7, 1999 A writ of replevin issued by the
Metropolitan Trial Court of Pasay City may be served and enforced anywhere in the
Philippines. Moreover, the jurisdiction of a court is determined by the amount of the claim
alleged in the complaint, not by the value of the chattel seized in ancillary proceedings.
RULING:
Under the Resolution of the Supreme Court en banc, dated January 11, 1983, providing
for the interim rules and guidelines relative to the implementation of BP 129, a writ of replevin
like the one issued in the present case may be served anywhere in the Philippines.
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 Although the value of the vehicle seized pursuant to the Writ of Replevin may have
exceeded P200,000, that fact does not deprive the trial court of its jurisdiction over the case. The
jurisdiction of a court is determined by the amount of the claim alleged in the complaint, not by
the value of the chattel seized in ancillary proceedings.
Under Rule 60 of the Rules of Court, the defendant has a period of 5 days from January
7, 1997 to post a re-delivery bond, in order to secure the return of the subject vehicle and to
post a counter bond double the amount of the chattel. In this respect, defendants failed to
exercise his right and are not entitled to the redelivery of the subject vehicle.
Sec.5.Return of Property –
Can the adverse party demand for the return of the property taken? On what ground? When can
he require the return of the property taken? How is it done?
 Yes. The adverse party can demand for the return of the property taken but he cannot
immediately require the return of the property;
 On the ground of insufficiency of the applicant’s bond, adverse party can demand for
the return of the property taken;
 He may require the return thereof at any time before the delivery of the same to the
applicant; but the adverse party is required to object to the sufficiency of the bond
within 5 days after the taking of the property; otherwise the sheriff shall deliver the
same to the applicant.
 By filing with the court where the action is pending a bond executed to the applicant
and by serving a copy of such bond to the applicant
 The amount of the bond shall in double of the value of the property stated in
applicant’s affidavit
 Purpose of the bond: for the delivery thpereof to the applicant, if such delivery be
adjudged, and for the payment of such to him as may be recovered against the
adverse party
Sec.6. Disposition of the property by Sheriff-
When shall the sheriff deliver the property taken to the applicant?
If within 5 days after the taking of the property by the sheriff:
1. The adverse party does not object to the sufficiency of the bond;
2. If the adverse party so objects and the court affirms its approval of the applicant’s
bond or approve a new bond;
3. If the adverse party requires the return of the property but his bond is objected to and
found insufficient and he does not forthwith file an approved bond
Third party Complaint – Sec.7
How can a third party recover the personal property taken by the sheriff under a writ of
replevin?
If the property is still in the possession of the sheriff:
 By making an affidavit of his title thereto, or right to the possession thereof, stating the
grounds therefor, and
 Serve such affidavit upon the sheriff and a copy thereof upon the applicant
If the affidavit shall have been served on the sheriff and upon the applicant, what shall the
sheriff do?
 The sheriff shall not be bound to keep the property or
 Shall not deliver it to the applicant
What is the remedy of applicant in case a third party claim has been initiated?
 The applicant, on demand of said sheriff, shall file a bond approved by the court to
indemnify the third-party claimant in a sum not less than the value of the property
under replevin (in a sum not less than in double the value of the property)
 In case of disagreement as to such value, the court shall determine the same
Can an claim for damage be enforced against the bond filed the applicant?
 No claim for damages for the taking or keeping of the property may be enforced
against the bond unless the action therefor is filed within 120 days from the date of
the filing of the bond
If the applicant was the RP, should it file a bond in case of a third party claim?
 No. under the rules, when the writ of replevin is issued in favor of the RP, or any officer
duly representing it, the filing of such bond shall not be required, and in case the
sheriff is sued for damages as a result of the replevin, he shall be represented by the
SOL GEN, and if held liable therfor, the actual damages adjudged by the court shall be
paid by the National Treasury out of the funds to be appropriated for the purpose.
Noteworthy:
The sheriff shall not be liable for damages, for the taking or keeping of such property, to any
such third party claimant if such bond shall be filed.
Nothing shall prevent such claimant or any third person from vindicating his claim to the
property, or prevent the applicant from claiming damages against a third-party claimant who
filed a frivolous or plainly spurious claim, in the same or separate action.
Sec.9. Judgment –
After trial of issues, the court shall determine who has the right of possession to and the value of
the property and shall render judgment in the alternative for:
1. The delivery thereof to the party entitled to the same, plus damages as either party
may prove, with cost
2. For its value in case delivery cannot be made, plus damages as either party may prove,
with cost
Sec.10. Judgment to include recovery against sureties –
The amount, if any to be awarded to any party upon any bond filed in accordance with the
provisions of this rule, shall be claimed, ascertained, and granted under the same procedure as
prescribed in sec. 20 of Rule 57.
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Case:
1. Visayan Surety and Insurance Corporation vs CA – September 7, 2001 – the obligation
of a surety cannot be extended by implication beyond its specified limits. Since the
obligaiotn of the surety cannot be extended by implication, it follows that the surety
cannot be held liable to the intervenor when the relationship and obligation of the
surety is limited to the defendants specified in the contract of surety.
Ruling: The petition is meritorious.
An intervenor is a person, not originally impleaded in a proceeding, who has legal
interest in the matter in litigation, or in the success of either of the parties, or an
interest against both, or is so situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court or of an officer thereof. 14
May an intervenor be considered a party to a contract of surety which he did not sign
and which was executed by plaintiffs and defendants?
It is a basic principle in law that contracts can bind only the parties who had entered
into it; it cannot favor or prejudice a third person. 15 Contracts take effect between the
parties, their assigns, and heirs, except in cases where the rights and obligations arising
from the contract are not transmissible by their nature, or by stipulation or by
provision of law.16
A contract of surety is an agreement where a party called the surety guarantees the
performance by another party called the principal or obligor of an obligation or
undertaking in favor of a third person called the obligee. 17 Specifically, suretyship is a
contractual relation resulting from an agreement whereby one person, the surety,
engages to be answerable for the debt, default or miscarriage of another, known as
the principal.18
The obligation of a surety cannot be extended by implication beyond its specified
limits.19 "When a surety executes a bond, it does not guarantee that the plaintiff’s
cause of action is meritorious, and that it will be responsible for all the costs that may
be adjudicated against its principal in case the action fails. The extent of a surety’s
liability is determined only by the clause of the contract of suretyship." 20 A contract of
surety is not presumed; it cannot extend to more than what is stipulated.
Special Civil Actions
Preliminaries
Types of civil actions:
1. Ordinary civil action (OCA)
2. Special civil action (SCA)
Legal Basis:
Sec.3(a), Rule 1, Rules of Court – these rules shall govern the procedure to be observed in
actions, civil or criminal and special proceedings.
(a) A civil action is one by which a party sues another for the enforcement or protection
of a right, or the prevention or redress of a wrong.
A civil action may either be ordinary or special. Both are governed by the rules for
ordinary civil actions, subject to the specific rules prescribed for a special civil action.
Distinction:
Note: The fact that an action is subject to special rules other than those applicable to ordinary
civil actions is what makes a civil action special.
1. As to cause of action –
In ordinary civil action, the defendant must have performed an act or omission in violation of
the rights of another. The cause of action as defined and required of an OCA finds no application
to SCA.
Example:
 SCA of declaratory relief – is brought before there is any breach or violation of a deed, will,
contract, statute, executive order or regulation, or any other governmental regulation.
 Interpleader – the plaintiff may file a complaint even if he has sustained no actual
transgression of his rights. In fact the plaintiff in this SCA has no interest in the subject
matter of the action. This is not so in an OCA.
2. As to venue
OCA – venue is determined either by:
 Personal action – the residence of the parties, at the election of the plaintiff
 Real action – the location of the property
SCA – the above rule does not apply in SCA.
Example:
 Quo warranto – venue is:
 where the Supreme Court or the Court of Appeals sits without taking consideration of
residence of the parties
 Lodged with the RTC, here the RTC merely looks into the residence of the respondent,
not that of the petitioner.
3. As to Court’s jurisdiction-
OCA – jurisdiction is determined or depends upon the jurisdictional amount or nature of the
action involved as provided by BP 129, as amended. In which case, OCA may be initially filed in
the RTC or MTC.
SCA – there are special civil actions which can only be filed in a MTC like the actions for forcible
entry and unlawful detainer. There are also SCA which cannot be commenced in the MTC of
which are the petitions for certiorari, prohibition and mandamus.
SCA under the rules are the following:
1. Interpleader (Rule 62)
2. Declaratory Relief and Similar Remedies (Rule 63)
3. Review of Judgment and final orders or resolutions of the Commission on Elections and
the Commission on Audit (Rule 64)
4. Certiorari, Prohibition, and Mandamus (Rule 65)
5. Quo Warranto (Rule 66)
6. Expropriation (Rule 67)
7. Foreclosure of real estate mortgage (Rule 68)
8. Partition (Rule 69)
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 9. Forcible Entry and Unlawful Detainer (Rule 70) 3. Parents and their legitimate children and the legitimate and illegitimate children of the
10. Contempt (rule 71) latter;
4. Parents and their illegitimate children and the legitimate and illegitimate children of the
latter;
Initiated by filing of a PETITION Initiated by filing a Complaint 5. Legitimate brothers and sisters, whether of the full or half-blood
1. Declaratory Relief and other similar remedies 1. Interpleader (Rule 62) 6. (art.196) Brothers and sisters not legitimately related, whether full or half blood, are
(Rule 63) likewise bound to support each other EXCEPT only when the need for support of the
2. Review of judgment and final orders or 2. Expropriation (Rule 67) brother or sister, being of age, is due to a cause imputable to the claimant’s fault or
resoultions of COMELEC and COA (Rule 63) negligence
3. Certiorari, Prohibition and Mandamus 3. Foreclosure of real estate mortgage
Order in the liability for support (art.199) –
4. Quo Warranto 4. Partition
5. Contempt 5. Forcible entry and Unlawful detainer Whenever two or more persons are obliged to give support, the following persons shall be
called to the obligation in the order herein provided:
RULE 61 1. The Spouse;
SUPPORT PENDENTI LITE 2. The descendants in the nearest degree
3. The ascendants in the nearest degree; and
Definition – Support pendente lite is an amount of support provisionally fixed by the court in 4. The brothers and sisters
favor of the person or persons entitled thereto during the pendency of an action for support or
criminal action where civil liability includes support for the offspring provided that the civil aspect The order for support may be disregarded when:
thereof has not been waived, reserved or instituted prior to its filing.
a. When the father or mother of a child under the age of majority unjustly refuses to
Family Code support or fails to give support to the child when urgently needed by the latter, any
TITLE VIII third person may furnish support to the needy individual, with a right of reimbursement
SUPPORT from the person obliged to give a support (art207).

Support (art.194) When shall be the separate property of a person obliged to give support be answerable?
(art.197)
In keeping with the financial capacity of the family, Support comprises everything indispensable
for: GR: The separate property of a person obliged to give support shall be answerable when it is for
the support of:
a. Sustenance a. Legitimate ascendants;
b. Dwelling b. Descendants, whether legitimate or illegitimate; and
c. Clothing c. Brothers and sisters, whether legitimately or illegitimately related
d. Medical attendance
e. Education and EX: when the obligor (person obliged to give support) has no separate property. In which case the
f. Transportation absolute community or the conjugal partnership, if financially capable, shall advance the support.

Education of the person shall include his: Effect: the support given which was taken from the absolute community or the conjugal
a. Schooling or training for some profession, trade or vocation, partnership shall be deducted from the share of the spouse obliged upon the liquidation of the
b. Even beyond the age of majority absolute community or of the conjugal partnership

Transportation shall include: (art.198) When shall be the property of the absolute community or the conjugal partnership be
a. Expenses in going to and from school, or answerable for support? It shall be answerable for the support of the spouses and their
b. To and from place of work children during the proceedings for:

Who are obliged to support each other, under the law? (art.195) a. Legal separation
b. Annulment of marriage
1. The spouses; c. Declaration of nullity of marriage
2. Legitimate ascendants and descendants
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Effects of granting the petition:
1. After final judgment granting the petition, the obligation of mutual support between the
spouses ceases (applicable only in cases of annulment or nullity of marriage);
2. In case of legal separation, the court may order that the guilty spouse shall give support
to the innocent one, specifying the terms of such order
Art.200 –
When 2 or more persons obliged to give support; RULE –
GR: When 2 or more persons are obliged to give support –
 The payment of the same shall be divided between them in proportion to the resources
of each.
EX: the judge may order only one of them to furnish the support provisionally, without prejudice
to his right to claim from the other obligors the share due from them, :
a. In case of urgent need AND
b. By special circumstances
When 2 or more persons are recipient from one and the same person – RULE
When 2 or more persons are recipient at the same time claim support from one and the same
person legally obliged to give it, should the latter not have sufficient means to satisfy all claims,
the claims may be satisfied from the following in the order provided:
a. The spouse
b. The descendants in the nearest degree
c. The ascendants in the nearest degree, and
d. The brothers and sisters
Should the concurrent obligees be the spouse and a child (still a minor) subject to parental
authority, the child shall be preferred.
(art.203) when shall be the obligation to give support demandable and be paid?
 Demandable – from the time the person who has a right to receive the same needs it
for maintenance
 shall not be paid - except from the date of judicial or extrajudicial demand.
Payment shall be made within the first 5 days of each corresponding month. When the recipient
dies, his heirs shall not be obliged to return what he has received in advance.
Art.204. option of the person obliged to give support –
The person obliged to give support shall have the option to:
a. fulfill the obligation either by:
 paying the allowance fixed
 receiving
b. maintain in the family dwelling the person who has a right to receive support
 however, this alternative cannot be availed of in case there is MORAL or LEGAL OBSTACLE
thereto.
Art.205. – everything receive as a support or the right to receive a support is not subject to
attachment or execution.
GR: The right to receive support under this titled as well as any money or property obtained as
such support shall not be levied upon on attachment or execution.
NOTE: right to receive support is exempt from execution.
EX: art.208. – in case of contractual support or that given by will, the excess in amount beyond
that required for legal support shall be subject to levy on attachment or execution.
Furthermore, contractual support shall be subject to adjustment whenever modification is
necessary due to changes in circumstances manifestly beyond the contemplation of the parties.
Art.206. when support is given by a strange
GR: When, without the knowledge of the person obliged to give support, it is given by a stranger,
the latter shall have a right to claim the same from the former;
EX: unless it appears that he gave it without any intention of being reimbursed.
Art. 207.
When the person obliged to support another unjustly refuses or fails to give support when
urgently needed by the latter,
 any third person may furnish support to the needy individual
 with the right of reimbursement from the person obliged to give support
this article shall apply particularly when the father or mother of a child under the age of
majority unjustly refuses to support or fails to give support to the child when urgently
needed.
Art. 208.
In case of contractual support or that given by will, the excess in amount beyond that required for
legal support shall be subject to levy on attachment or execution.
Furthermore, contractual support shall be subject to adjustment whenever modification is
necessary due to changes in circumstances manifestly beyond the contemplation of the parties.
Section 1. Application
At the commencement of the property action or proceeding, or at any time prior to the
judgment or final order, a verified application for support pendente lite may be filed by any party
stating the grounds for the claim and the financial conditions of both parties, and accompanied by
affidavits, depositions or other authentic documents in support thereof.
Page 39 of 96
When to file?
 At the commencement of the proper action or proceeding; or
 At any time prior to the judgment or final order
Who may file?
Any party who has a right to receive support under the law.
How to file?
1. By filing a verified application for support pendente lite; the application shall state:
 The grounds for the claim
 The financial conditions of both parties
The application shall be accompanied by affidavits, depositions or other authentic documents in
support thereof
2. A copy of the application and all supporting documents shall be served upon the adverse party
3. The adverse party, upon service thereof, shall have 5 days to comment thereon, unless a
different period is fixed by the court upon his motion
4. The comment shall be VERIFIED and shall be accompanied by affidavits, depositions or other
authentic documents in support thereof.
5. The application shall be set for hearing and a hearing shall be conducted;
When shall be the application be set for hearing?
 After the comment is filed, or
 After the expiration of the period for its filing
6. The court then shall determine. If the application is granted, the court shall issue an order
where it shall fix the amount of money to be provisionally paid as support. If the application is
denied, the principal case, shall be tried and decided as early as possible.
When support pendent lite be availed of:
 In a main action for support; or
 In a criminal action where civil liability includes support for the offspring provided the civil
aspect thereof has not been waived, reserved, or instituted prior to its filing (Sec.6 Rule 61).
 repeated acts of conjugal infidelity on the part of the husband are proved, and he appears to
be a recurrent, if not an incurable offender against the sanctity of the marriage tie. This gives
the wife an undeniable right to relief (Villanueva vs Villanueva, 54 phil 92).
When support pendente lite will not be availed of?
1. When the right to support is put in issue in the pleadings or the fact from which the right to
support arises has not been established, the court cannot grant support pendente lite;
 the minor who alleges that he is the son of the defendant must first prove his civil status
as such son (Fransico vs Zandueta, 61 Phil 752).
 A woman alleging to be the wife of the defendant, brought an action for support. The
rules only grant the right to alimony to a wife. This status not appearing by a final
judgment, the court is without jurisdiction to make any order in the matter (Yangco vs
Phode, 1 Phil 404).
2. When the main action is for the Recovery of the possession of a property; it is not considered
as the proper action contemplated by the rules (coquia vs Baltazar, Dec. 29, 1949).
3. When there was no complete hearing of the application as the defendant was not given an
opportunity to overcome the application by presenting his defense; the case should be
remanded to the lower court for further reception of evidence (Mangoma vs Macadaeg,
Dec. 10,1951).
4. Arroyo vs. Vazquez de Arroyo (42 Phil. 54), where the charges of cruelty were found to be
unproved or insufficient
Ramos vs. CA, L-31897, June 30, 1972
If, before the rendition of judgment, the trial court may "provisionally" grant alimony
pendente lite, with more reason may an appellate court exercise a similar authority, after a full
dress trial and a decision of the trial court on the merits finding that the claim of filiation and
support has been adequately proven — in the case at bar, beyond doubt — even if such decision
were still pending appeal taken by the party adjudged to be bound to give such support.
“In view of the poverty of herein private respondents, "it would be a travesty of justice" to
refuse them support until the decision of the trial judge "is sustained on appeal."
Section 2. Comment
 Copy of the application and all supporting documents shall be served upon the adverse party
 The adverse party shall have 5 days to COMMENT thereon unless a different period is fixed
by the court upon his motion
 The COMMENT shall be VERIFIED and shall accompanied by:
a. affidavits
b. depositions or other authentic documents in support thereof
Section 3. Hearing
 The application shall be set for hearing not more than 3 days:
a. after the comment is filed, or
b. after the expiration of the period for its filing
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 The facts in issue shall be proved in the same manner as is provided for evidence on motion.  there is a criminal action where the civil liability includes support for the offspring as a
consequence of the crime AND
Section 4. Order  the civil aspect thereof has not been waived, reserved or instituted prior to its filing
 the court shall:
1. determine provisionally the pertinent facts Who may file an application in such instance?
2. render orders as justice and equity may require The application may be filed successively during the pendency of the case, by:

All having due regard to the: 1. the offended party

1. probable outcome of the case and 2. her parents
2. such other circumstances as may aid in the proper resolution of the question 3. grandparents or guardian
involved 4. the State

 if the application is granted: When should the application be filed?

1. the court shall fix the amount of money to be provisionally paid or such other forms of During the pendency of the criminal case.
support
2. Taking into account the Section 7. Restitution
a. necessities of the applicant
b. the resources or means of the adverse party, When person providing support pendente lite is found by judgment or final order of court that he
c. the terms of payment or mode of providing the support is not liable thereof;
 the court shall order the recipient thereof to return to the former the amounts already
 if the application is DENIED paid with legal interest from the dates of actual payment
1. the principal case shall be tried and decided as early as possible
 without prejudice to the right of the recipient to obtain reimbursement in a separate
Mangonon vs. CA, G.R. No. 125041, 06/30/06 action from the person legally obliged to give the support.

“Under this provision (Sec.4), a court may temporarily grant support pendente lite prior to the If the recipient failed to reimburse the amount:
rendition of judgment or final order. Because of its provisional nature, a court does not need to  the person who provided the same may likewise seek reimbursement thereof in a
delve fully into the merits of the case before it can settle an application for this relief. All that a separate action from the person legally obliged to give such support
court is tasked to do is determine the kind and amount of evidence which may suffice to enable it
to justly resolve the application. It is enough that the facts be established by affidavits or other Saavedra vs Ybanez Estrada, 56 Phil 33
documentary evidence appearing in the record.” An order pendente lite is in its very nature contingent, and the dismissal of the action
had the effect of abrogating the order.
Section 5. Enforcement of order RULE 62 – Interpleader

If the adverse party fails to comply with an order granting support Pendente lite –
a. the court shall, motu proprio, or upon motion, issue an order of execution against him,
without prejudice to his liability for contempt
When a person ordered to give support pendente lite refuses or fails to do so
 any third person who furnished that support to the applicant may, after due notice and
hearing in the same case, obtain a WRIT OF EXECUTION to enforce his right of
reimbursement against the person ordered to provide such support
Section 6. Support in criminal cases
The accused may be ordered to provide support pendente lite to the child born to the offended
party allegedly because of the crime when:
Interpleader, defined (Bar 1998) –
Interpleader is a form of action originally developed under equity jurisprudence. Under our
jurisdiction it is a special civil action. It allows a plaintiff to initiate a lawsuit in order to compel
two or more other parties to litigate a dispute. An interpleader action originates when the
plaintiff holds property on behalf of another, but does not know to whom the property should
be transferred. It is often used to resolve disputes arising under insurance contracts.
When Interpleader proper (sec.1, Rule 62)
A person (plaintiff), against whom two conflicting claims are made upon the same subject matter
and over which he claims no interest, or if he has interest at all, such interest is not disputed by
the claimants, may file a special civil action against the conflicting claimants to compel them to
interplead and litigate their several claims among themselves.
Requisites for interpleader:
1. There must be two or more claimants with conflicting interest to a property in the custody
or possession of the plaintiff
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2. The plaintiff in an action for interpleader has no interest/claim upon the subject matter of Petitioners respectively filed an action for forcible entry against respondent with the court. Both
the adverse claim, or if he has an interest at all, such interest is not disputed by the petitioners prayed that respondent should vacate the portion of their respective property which
claimiants. was encroached upon when they erected their building.
While the two cases were pending, respondent filed a complaint for interpleader alleging that
3. Subject matter of the adverse claims must be one and the same.
the X and Y has conflicting interest, since they all claimed to be entitled to the possession of the
lot in question and they (respondents) could not determine without hazard to themselves who
Purpose: of defendants was entitled to the possession.
 Afforded to protect a person not against double liability but against double vexation in
respect of one liability. Issue: Whether the action for interpleader will prosper?

Distinguish from Intervention – Ruling: The action for interpleader will not prosper. Petitioners did not have any conflicting
claims against respondent. Their respective claim was separate and distinct from each other. De
Interpleader Intervention Camilo only wanted the respondents to vacate that portion of her property which was
1. A special civil action, independent and 1. Accessory, ancillary and depends upon encroached upon by them when they erected their building. Petitioner claimed possession of
original the existence of the main action two different parcels of land of different areas, adjoining each other. They only wanted the
respondent to vacate that portion of their respective property which was encroached upon by
2. Commence by filing a complaint 2. Commenced by filing a motion to
them when they (respondentst) erected their building. Hence, absence of the requirements for
intervene action of interpleader, the compliant of interpleader may be dismissed for lack of cause of
3. Filed by a person who has no interest in 3. Filed by a person who has a legal interest action.
the subject matter of the action or if he in any of the following:
has an interest, the same is not disputed  Subject matter of litigation Wack-Wack Golf v. Lee Won
by the claimants.  Success of either of the parties G.R. No. L-23851, March 26, 1976
 Success of both of the parties The interpleader suit cannot prosper because the Petitioner had already been made
 He may be adversely affected by the independently liable in Civil Case No. 26044 and, therefore, its present application for
disposition or distribution of property in interpleader would in effect be a collateral attack upon the final judgment in the said civil case.
the judgment
4. Defendants are brought into the action only 4. If a complaint-in-intervention is filed, the Facts: Wack Wack Golf & Country Club Inc., operating under Philippine laws, filed a complaint to
compel Lee and Tan (claimants) to interplead and litigate their conflicting claims upon the
because they are impleaded as such in the defendants are already parties to the
ownership of its membership fee certificates 201. The complaint further alleged that Lee claims
complaint main action not because of the ownership of the subject matter by virtue of decision rendered in a civil case 26044 of the CFI
intervention but because of the original Manila and that Tan claims to be a lawful owner of its aforesaid membership fee certificate 201
suit. by virtue of membership fee certificate 201-serial no. 1199 issued to him. Defendants filed their
separate motion to dismissed the complaint on the ground that the complaint fails to state a
Viuda de Camilo vs. Aranio cause of action and bar by prescription.
GR No. L-15653, September 29, 1961
Issue: Whether or not the complaint to interplead will prosper?
Interpleader will not lie when 2 defendants has separate and distinct adverse claim. And there
being no conflicting claims against the respondent, a complaint of interpleader may be Ruling: The interpleader will not prosper. It has been held that an action of interpleader is too
dismissed for lack of cause of action. late when filed after judgment has been rendered against him in favor of one of the contending
parties, especially where he (plaintiff) he had prior notice of the conflicting claims prior to the
Facts: X and Y (petitioners) are in peaceful, open and adverse possession of two different parcels rendition of judgment and neglected the opportunity to implead the adverse claimants. Because
of foreshore lands of different areas, adjoining each other, situated in Malangas, Zamboanga del once judgment is obtained against him by one claimant he becomes liable to the latter.
Sur. X and Y built their respective commercial building on their respective land property.
However, a fire razed their building. Here comes A and B (respondents) who takes possession Moreover, a successful litigant cannot later be impleaded by his defeated adversary in an
and entered into the subject land. Respondents constructed a building of their own. The building interpleader suit and compelled to prove his claim anew against other adverse claimants, as that
was so built that the lands previously occupied by the petitioners (X and Y) were encroached would in effect be a collateral attack upon the judgment. The interpleader suit cannot prosper
upon. because the Petitioner had already been made independently liable in Civil Case No. 26044 and,
therefore, its present application for interpleader would in effect be a collateral attack upon the
final judgment in the said civil case.
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 of ownership can very well be threshed out in Civil Case No. 4037-V-93, the case for Nullification
Rizal Commercial Banking Corporation v. Metro Container Corporation of Extrajudicial foreclosure Sale and Damages filed by LEYCON against RCBC.
G.R. No. 127913, September 13, 2001
Sec.2 Order – Contents of the interpleader order –
The reason for the interpleader action ceased when the MeTC rendered judgment in Civil Case Upon filing of the complaint, the court shall issue an order:
No. 6202 whereby the court directed METROCAN to pay LEYCON whatever rentals due on the a. Requiring the conflicting claimants to interplead with one another
subject premises. While RCBC, not being a party to Civil Case No. 6202, could not be bound by b. If the interest of justice so requires, the order may direct that the subject matter be paid
the judgment therein, METROCAN is bound by the MeTC decision. or delivered to the court
Facts: METROCAN is the lessee of the property from LEYCON, lessor, which property is subject to
the contract of mortgage entered into between RCBC and LEYCON. Sec.3. Summons
Summons shall be served upon the conflicting claimants, together with a copy of the complaint
METROCAN filed the interpleader action (Civil Case No. 4398-V-94) because it was unsure which and order.
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 Sec.4. Motion to dismiss –
RCBC was making a demand by virtue of the consolidation of the title of the property in its name. When to file a motion to dismiss –
 Within the time for filing an answer
Prior to the action of interpleader, LEYCON filed an action for Unlawful Detainer against o Within 15 days after service of summons, unless a different period is fixed by the court
METROCAN docket as civil case no. 6202. In said civil case, the court dismissed the complaint for (Sec.1, Rule 11)
unlawful detainer in view of an amicable settlement they entered and ordered METROCAN to
pay LEYCON the rentals. Who may file a motion to dismiss the complaint of interpleader –
 Each conflicting claimant
Comes now METROCAN moving for the dismissal of the interpleader action (civil case no. 4398-
V-94) because there is no need to pursue such cause of action because it is already moot and On what grounds:
academic.  Ground of impropriety of interpleader action or
RCBC on the other hand wants to prove his claim in the interpleader action filed, thus,  On appropriate grounds specified in Rule 16
compelling METROCAN to pursue the interpleader case. 1. Court has no jurisdiction over the person of the defendant
2. Court has no jurisdiction over the subject matter of the claim
Issue: Whether or not the interpleader case should continue? 3. the venue is improperly laid
4. the plaintiff has no legal capacity to sue
Ruling: The interpleader case should no longer continue. the reason for the interpleader action 5. litis pendencia
ceased when the MeTC rendered judgment in Civil Case No. 6202 whereby the court directed 6. res judicata
METROCAN to pay LEYCON "whatever rentals due on the subject premises x x x." While RCBC, 7. pleading asserting the claim states no cause of action
not being a party to Civil Case No. 6202, could not be bound by the judgment therein, 8. the claim or demand has been waived, paid, abandoned, or otherwise extinguished
METROCAN is bound by the MeTC decision. When the decision in Civil Case No. 6202 became 9. claim on which the action is founded is unenforceable under the statute of frauds
final and executory, METROCAN has no other alternative left but to pay the rentals to LEYCON. 10. condition precedent for filing the claim has not been complied
Precisely because there was already a judicial fiat to METROCAN, there was no more reason to
continue with Civil Case No. 4398-V-94. 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 Effect of filing a motion to dismiss –
it to pursue such cause of action. The period to file the answer shall be tolled and if the motion is denied, the movant may file his
answer within the remaining period, but which shall not be less than 5 days in any event,
It should be remembered that an action of interpleader is afforded to protect a person not reckoned from notice of denial.
against double liability but against double vexation in respect of one liability. It requires, as an
indespensable requisite, that "conflicting claims upon the same subject matter are or may be Sec.5. Answer and other pleadings –
made against the plaintiff-in-interpleader who claims no interest whatever in the subject matter  each claimant shall file his answer within 15 days from service of summons upon him
or an interest which in whole or in part is not disputed by the claimants.” The decision in Civil  his answer shall also be served a copy upon each of the other claimants
Case No. 6202 resolved the conflicting claims insofar as payment of rentals was concerned.  other claimants whom upon copy of an answer of the other claimant may file their reply
thereto as provided by the rules
Petitioner is correct in saying that it is not bound by the decision in Civil Case No. 6202. It is not a
party thereto. However, it could not compel METROCAN to pursue Civil Case No. 4398-V-94.
RCBC has other avenues to prove its claim. Is not bereft of other legal remedies. In fact, he issue
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 if any claimant fails to plead within the time herein fixed, the court may, on motion, declare Finally, petitioners cannot recover possession of the property via a mere motion. They must file
him in default and thereafter render judgment barring him from any claim in respect to the the appropriate action in court against respondents to recover possession. While this remedy
subject matter. can delay their recovery, this Court cannot permit an abbreviated method without subverting
 The parties in an interpleader action may file counterclaims, cross-claims, third-party the rules and processes established for the orderly administration of justice.
complaints and responsive pleadings thereto, as provided by the rules.
Sec.7. Docket and other lawful fees –
Sec.6. Determination – The docket and other lawful fees paid by the party who filed a complaint of interpleader, as well
After the pleadings of the conflicting claimants have been filed, and pre-trial has been conducted as the costs and litigation expenses, shall constitute a lien or charge upon the subject matter of
in accordance with the Rules, the court shall proceed to determine, their respective rights and the action, unless the court shall order otherwise.
adjudicate their several claims.
Court with jurisdiction (BP 129, as amended)
Maglente vs Hon. Baltazar-Padilla Sec.19 and Sec. 33
GR. No. 148182, March 7,2007 The court with jurisdiction over an action for interpleader shall depend upon the following:
A writ of possession complements the writ of execution only when the right of possession or
ownership has been validly determined in a case directly relating to either. The interpleader case 1. RTC –
obviously did not delve into that issue, since the issue in the interpleader case is limited to who  Subject matter of the action is personal property, valued more than P300,000 outside
has a better right to purchase the property. Metro Manila and in Metro Manila, at more than P400,000
 Subject matter of the action REAL PROPERTY with an assessed value exceeding P20,000
Facts: Philippine Realty Corporation (PRC) owns a parcel of land. The same was leased to the outside Manila, and in Manila, exceeding P50,000
petitioner Maglente. In their leased contract, it provides that if PRC sell the property, petitioner
shall have a right of first refusal (given the first priority to buy it). When the leased contract was MTC has jurisdiction if otherwise:
about to expire, PRC sent letter offering to sell the property to petitioner. the latter response to Civil actions/personal property:
the letter, and intimated that she would exercise her right of first refusal. However, on a later  Outside MM – does not exceed P300,000
date, PRC receive an offer from respondent that they will buy the land.  in MM – Does not exceed P400,000

PRC filed an interpleader action with RTC against the claimants. The RTC ruled in favor of the Civil actions which involve titled to, or possession of, real property or any interest therein: Based
petitioner declaring that she had the right to purchase the land and order PRC to execute the on Assessed Value
corresponding the contract of sale in favor of the petitioner.  Outside MM – assessed value does not exceed P20,000
 In MM – assessed value does not exceed P50,000
At the rendition of said judgment, the respondents have been occupying the said property.
petitioner then filed for the issuance of writ of possession. However, respondents objected on Note: where the conflicting claims involve the right to receive a particular sum, the amount of
the ground that the trial court’s decision on the interpleader case merely resolved petitioners’ sum claimed determines jurisdiction.
right to purchase the leased property but did not declare them as the owners entitled to
possession. Bar Question (1997):
What courts have jurisdiction over the following cases filed in Metro Manila?
Issue: Whether petitioner is entitled to a writ of possession being adjudged in the interpleader
case as the rightful parties to purchase the said land. d. An action for interpleader to determine who between the defendants is entitled to
receive the amount of P190,000 from the plaintiff.
Ruling: No. petitioner are not entitled to a writ of possession. Petitioners’ argument that the trial
court’s writ of execution in the interpleader case carried with it the corollary right to a writ of Suggested Answer:
possession is without merit. A writ of possession complements the writ of execution only when The action shall be filed in the metropolitan court in Metro Manila. The amount of P190,000
the right of possession or ownership has been validly determined in a case directly relating to not being in excess
either. The interpleader case obviously did not delve into that issue. of 400,000 is within the jurisdiction of said court.

Furthermore, the rule is that the enforcement of a judgment may not vary or alter the tenor of
the judgment but must strictly conform to it. It should be in harmony with the judgment that
gives it life and not exceed it. We thus cannot fault the trial court for refusing to issue a writ of
possession to petitioners as its issuance would not be in conformity with the trial court’s
judgment in the interpleader case.
Rule 63 – Declaratory Relief
Declaratory relief refers to a judgment of a court which determines the rights of parties without
ordering anything be done or awarding damages. By seeking a declaratory judgment, the party

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making the request is seeking for an official declaration of the status of a matter in controversy. the interpretation and determination of the validity of the written instrument and the
Optimally, the resolution of the rights of the parties involved will prevent further litigation. For judicial declaration of the parties’ rights or duties thereunder.
example, a party to a contract may seek the legal interpretation of a contract to determine the
parties' rights, or an insured may seek a determination of insurance coverage under a policy. 2. Since the purpose of an action for declaratory relief is to secure an authoritative statement
of the rights and obligations of the parties under a statute, deed, or contract for their
Note: The court cannot award any affirmative relief in a petition for declaratory relief because guidance in the enforcement thereof, or compliance therewith, and not to settle issues
the petition merely seeks the construction of contract, will, deed, or statute to determine the arising from an alleged breach thereof, it may be entertained only before the breach or
rights of the parties. Corollary is the rule that such an action must be justified, as no other violation of the statute, deed, or contract to which it refers.
adequate relief or remedy is available under the circumstances.
3. Where the law or contract has already been contravened prior to the filing of an action for
Sec.1, Who may file petition declaratory relief, the courts can no longer assume jurisdiction over the action. In other
2 types of actions under Rule 63: words, a court has no more jurisdiction over an action for declaratory relief if its subject has
1. Petition for Declaratory relief already been infringed or transgressed before the institution of the action.
2. Petition for similar remedies
4. The special civil action of declaratory relief falls under the exclusive jurisdiction of the
DECLARATORY RELIEF SIMILAR REMEDIES Regional Trial Court.5 It is not among the actions within the original jurisdiction of the
Any person interested under a: Any person in an action: Supreme Court even if only questions of law are involved.
Who 1. Deed 1. For the reformation of an
may file 2. Will instrument (1359-139, NCC) Requisites for the petition –
3. Contract or other written 2. To quite title to real property or
instrument remove clouds therefrom (Art. 476- Requisites of an action for declaratory relief, as follows:
481, NCC) 1. the subject matter of the controversy must be a deed, will, contract or other written
Or whose rights are affected by a: 3. To consolidate ownership under instrument, statute, executive order or regulation, or ordinance;
4. Statute Art.1607 of the Civil Code, in a sale 2. the terms of said documents and the validity thereof are doubtful and require judicial
5. Executive order or regulation with a right to repurchase. construction;
6. Ordinance, or 3. there must have been no breach of the documents in question;
7. Any other governmental regulation 4. there must be an actual justiciable controversy or the "ripening seeds" of one between
Where Before breach or violation thereof, In the appropriate COURT: persons whose interests are adverse;
to file BRING an action in the appropriate Real Property: 5. the issue must be ripe for judicial determination; and
REGIONAL TRIAL COURT to determine 1. RTC if – 6. adequate relief is not available through other means or other forms of action or proceeding
any question of construction or validity The assessed value of the subject
arising, and for a declaration of his rights property per tax declaration exceeds Sec.2. Parties –
or duties, thereunder. P20,000, outside Metro Manila;
exceeds P50,000 in Metro Manila; All persons who have or claim any interest which would be affected by the declaration shall be
REASON: declaratory relief raises issues 2. MTC if otherwise. made parties; and no declaration shall, except as otherwise provide in these rules, prejudice the
which are not capable of pecuniary REASON: rights of persons not parties to the action.
estimation and must be filed with the It must be read in relation to BP 129, as
RTC. amended (RA 7691) Sec.3. Notice on Solicitor General –
In any action which involves the validity of:
Personal/amount of demand: 1. a statute,
1. RTC – if it exceeds P300,000, outside 2. executive order or regulation
MM; if it exceeds P400,000, in MM 3. or any other governmental regulation
2. MTC – if otherwise. The Solicitor General shall be notified by the party assailing the same and shall be entitled to be
heard upon such question.

Note: Sec.4. Local Government Ordinances –

1. An action for declaratory relief should be filed by a person interested under a deed, a will, a
contract or other written instrument, and whose rights are affected by a statute, an
executive order, a regulation or an ordinance. The relief sought under this remedy includes
In any action involving the validity of a local government ordinance, the corresponding
prosecutor or attorney of the local governmental unit 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.
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Sec.5. Court action discretionary –
Except falling under the 2nd paragraph of section 1 of this rule, the court, motuproprio or upon
motion, may refuse to exercise the power to declare the rights and to construe instruments in any
case where:
1. a decision would not terminate the uncertainty or controversy which gave rise to the
action
2. the declaration or construction is not necessary and proper under the circumstances
Sec.6. Conversion into ordinary action –
GR: action for declaratory relief shall be filed before a breach or violation of instrument
concerned.
Effect if filed after violation or breach:
 a court has no more jurisdiction over an action for declaratory relief if its subject has
already been infringed or transgressed before the institution of the action.
But If the action is institution before a breach or violation and before the final termination of the
case, a breach or violation of an instrument or a statute, executive order or regulation,
ordinance, or any other governmental regulation should take place,
 the action may thereupon be converted into an ordinary action, and the parties shall be
allowed to file such pleadings as may be necessary or proper
CASES:
Malana vs. Tappa,
G.R. No. 181303, September 17, 2009
The mandatory provision of the Judiciary Reorganization Act of 1980, as amended, uses the word
"shall" and explicitly requires the MTC to exercise exclusive original jurisdiction over all civil
actions which involve title to or possession of real property where the assessed value does not
exceed P20,000.00.
Facts: Petitioners filed before the RTC their Complaint for Reivindicacion, Quieting of Title, and
Damages against respondents. Petitioners alleged in their Complaint that they are the owners of
a parcel of land covered by Transfer Certificate of Title (TCT) No. T-127937 situated in
Tuguegarao City (subject property). Petitioners inherited the subject property from Anastacio
Danao (Anastacio), who died intestate. During the lifetime of Anastacio, he had allowed
Consuelo Pauig (Consuelo), who was married to Joaquin Boncad, to build on and occupy the
southern portion of the subject property. Anastacio and Consuelo agreed that the latter would
vacate the said land at any time that Anastacio and his heirs might need it.
Before respondents could file their answer, the RTC issued an Order dismissing petitioners’
Complaint on the ground of lack of jurisdiction. The RTC referred to Republic Act No.
7691, amending Batas Pambansa Blg. 129, otherwise known as the Judiciary Reorganization Act
of 1980, which vests the RTC with jurisdiction over real actions, where the assessed value of the
property involved exceeds P20,000.00. It found that the subject property had a value of less
than P20,000.00; hence, petitioners’ action to recover the same was outside the jurisdiction of
the RTC.
Issue: Did the RTC committed grave abuse of discretion in dismissing the complaint of the
petitioners motu proprio due to lack of jurisdiction?
Ruling: The RTC did not commit any grave abuse of discretion. Petitioners’ Complaint contained
sufficient allegations for an accion reivindicatoria. Jurisdiction over such an action would depend
on the value of the property involved. Given that the subject property herein is valued only at
P410.00, then the MTC, not the RTC, has jurisdiction over an action to recover the same. The
RTC, therefore, did not commit grave abuse of discretion in dismissing, without prejudice,
petitioners’ Complaint in Civil Case No. 6868 for lack of jurisdiction.
Moreover, although an action for the reformation of an instrument, to quiet title to real
property or remove clouds or to consolidate ownership under Article 1607 of the Civil Code
“may” be brought before the appropriate RTC, the use of the word "may" in a statute denotes
that the provision is merely permissive and indicates a mere possibility, an opportunity or an
option. In contrast, the mandatory provision of the Judiciary Reorganization Act of 1980, as
amended, uses the word "shall" and explicitly requires the MTC to exercise exclusive original
jurisdiction over all civil actions which involve title to or possession of real property where the
assessed value does not exceed P20,000.00.
Office of the Ombudsman vs. Ibay
G. R. No. 137538, September 3, 2001
In the present case, since there is no pending litigation yet before a court of competent authority,
but only an investigation by the Ombudsman on the so-called “scam”, any order for the opening
of the bank account for inspection is clearly premature and legally unjustified.
Facts: The petitioner conducted an investigation on the alleged scam on the Public-Estate
Authority – Amari Coastal Bay Development Corporation. The purpose of the investigation is to
determine whether there had been irregularity in issuing some checks which where deposited
to several financial institution. Private respondent Lourdes Marquez was required to produce
several documents for inspection and the inspection shall be done in camera wherein the bank
documents will be examine without bringing them outside the bank premises.
Private respondent failed to comply with the orders averring that under RA No. 1405, otherwise
known as the Bank Secrecy Law, she had the legal obligation not to divulge any information
relative to all bank deposits within the Philippines. The Office of the Ombudsman ordered
private respondent to show cause why she should not be cited for contempt. But instead of
complying with the order she filed a petition for declaratory relief with an application for TRO
and preliminary injunction before the RTC, presided by Hon. Ibay.
In this case, the controversy concerns the extent of the power of petitioner to examine bank
accounts under Section 15 (8) of R.A. 6770 vis-à-vis the duty of banks under Republic Act 1405
not to divulge any information relative to deposits of whatever nature. The interests of the
parties are adverse considering the antagonistic assertion of a legal right on one hand, that is the
power of Ombudsman to examine bank deposits, and on the other, the denial thereof
apparently by private respondent who refused to allow petitioner to inspect in camera certain
bank accounts. The party seeking relief, private respondent herein, asserts a legal interest in the
controversy.
Issue: Whether or not the issue invoked is ripe for judicial determination as litigation.
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Ruling: The issue invoked is ripe for judicial determination as litigation is inevitable. Note that
petitioner has threatened private respondent with “indirect contempt” and “obstruction”
charges should the latter not comply with its order.
Circumstances considered, the public respondent has jurisdiction to take cognizance of the
petition for declaratory relief. Nor can it be said that public respondent gravely abused its
discretion in doing so. Thus, the Supreme Court dismissed the petition for lack of merit.
In any event, the relief being sought by private respondent in her action for declaratory relief
before the RTC of Makati City has been squarely addressed by the decision in Marquez vs.
Desierto. In that case, it was ruled that before an in camera inspection of bank accounts may be
allowed, there must be a pending case before a court of competent jurisdiction. Further, the
account must be clearly identified, and the inspection limited to the subject matter of the
pending case before the court of competent jurisdiction. The bank personnel and the account
holder must be notified to be present during the inspection, and such inspection may cover only
the account identified in the pending case. In the present case, since there is no pending
litigation yet before a court of competent authority, but only an investigation by the
Ombudsman on the so-called “scam”, any order for the opening of the bank account for
inspection is clearly premature and legally unjustified.
Dela Llana vs Alba
GR No. L-57883, March 12, 1982
In 1981, BP 129, entitled “An Act Reorganizing the Judiciary, Appropriating Funds Therefor and
for Other Purposes”, was passed. De la Llana was assailing its validity because, first of all, he
would be one of the judges that would be removed because of the reorganization and second,
he said such law would contravene the constitutional provision which provides the security of
tenure of judges of the courts, He averred that only the SC can remove judges NOT Congress.
That is the fundamental issue raised in this proceeding, erroneously entitled Petition for
Declaratory Relief and/or for Prohibition considered by this Court as an action for prohibited
petition, seeking to enjoin respondent Minister of the Budget, respondent Chairman of the
Commission on Audit, and respondent Minister of Justice from taking any action implementing
Batas Pambansa Blg. 129.
ISSUE: Whether or not Judge De La Llana can be validly removed by the legislature by such
statute (BP 129).
HELD: The SC ruled the following way: “Moreover, this Court is empowered “to discipline judges
of inferior courts and, by a vote of at least eight members, order their dismissal.” Thus it
possesses the competence to remove judges. Under the Judiciary Act, it was the President who
was vested with such power. Removal is, of course, to be distinguished from termination by
virtue of the abolition of the office. There can be no tenure to a non-existent office. After the
abolition, there is in law no occupant. In case of removal, there is an office with an occupant who
would thereby lose his position. It is in that sense that from the standpoint of strict law, the
question of any impairment of security of tenure does not arise. Nonetheless, for the incumbents
of inferior courts abolished, the effect is one of separation. As to its effect, no distinction exists
between removal and the abolition of the office. Realistically, it is devoid of significance. He
ceases to be a member of the judiciary. In the implementation of the assailed legislation,
therefore, it would be in accordance with accepted principles of constitutional construction that
as far as incumbent justices and judges are concerned, this Court be consulted and that its view
be accorded the fullest consideration. No fear need be entertained that there is a failure to
accord respect to the basic principle that this Court does not render advisory opinions.
No question of law is involved. If such were the case, certainly this Court could not have its say
prior to the action taken by either of the two departments. Even then, it could do so but only by
way of deciding a case where the matter has been put in issue. Neither is there any intrusion into
who shall be appointed to the vacant positions created by the reorganization. That remains in the
hands of the Executive to whom it properly belongs. There is no departure therefore from the
tried and tested ways of judicial power. Rather what is sought to be achieved by this
liberal interpretation is to preclude any plausibility to the charge that in the exercise of the
conceded power of reorganizing the inferior courts, the power of removal of the present
incumbents vested in this Tribunal is ignored or disregarded. The challenged Act would thus be
free from any unconstitutional taint, even one not readily discernible except to those predisposed
to view it with distrust. Moreover, such a construction would be in accordance with the
basic principle that in the choice of alternatives between one which would save and another
which would invalidate a statute, the former is to be preferred.”
Almeda vs Bathala Marketing
GR No. 150806 – January 28, 2008
A party is not barred from instituting the petition for declaratory relief where there is no showing
that respondent committed an act constituting a breach of the subject contract of lease.
Facts: Petitioners advised respondent that the former shall assess and collect Value Added Tax
(VAT) on its monthly rentals. In response, respondent contended that VAT may not be imposed
as the rentals fixed in the contract of lease were supposed to include the VAT therein,
considering that their contract was executed on May 1, 1997 when the VAT law had long been in
effect.
On January 26, 1998, respondent received another letter from petitioners informing the former
that its monthly rental should be increased by 73% pursuant to condition No. 7 of the contract
and Article 1250 of the Civil Code. Respondent opposed petitioners’ demand and insisted that
there was no extraordinary inflation to warrant the application of Article 1250 in light of the
pronouncement of this Court in various cases.
Respondent refused to pay the VAT and adjusted rentals as demanded by petitioners but
continued to pay the stipulated amount set forth in their contract.
Issue: Is the respondent barred from instituting before the trial court the petition for declaratory
relief?
Ruling: After petitioners demanded payment of adjusted rentals and in the months that
followed, respondent complied with the terms and conditions set forth in their contract of lease
by paying the rentals stipulated therein. Respondent religiously fulfilled its obligations to
petitioners even during the pendency of the present suit. There is no showing that respondent
committed an act constituting a breach of the subject contract of lease. Thus, respondent is not
barred from instituting before the trial court the petition for declaratory relief.
Edades vs Edades, 99 Phil 675
Facts: Plaintiff Juan Edades brought this action before the Court of First Instance of Pangasinan
seeking a declaratory judgment on his hereditary rights in the property of his alleged father and
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incidentally the recognition of his status as an illegitimate son of Emigdio Edades. The Edades judgment (Sec.1,2&3, Rule 65 within 30
siblings and their father (who was still alive) filed a motion to dismiss on the ground that the Rule 64) days from notice
complaint did not state facts sufficient to constitute a cause of action. The motion to dismiss was of judgment
sustained by CFI Pangasinan, which held that an action for declaratory relief just for purpose of (Sec.1,2&3, Rule
clearing away doubt, uncertainty, or insecurity to the one’s status or rights would be improper. 64).
Juan Edades appealed.
Issue: Whether or not the present action seeking a declaratory judgment on his hereditary rights
in the property of his alleged father can be maintained. Sec.1. Scope –
This rule shall govern the review of judgment and final orders or resolutions of:
Ruling: Yes, but not as an action for declaratory relief. The case does not fall under the a. The Commission on Elections and
authorized causes for an action for declaratory relief. It does not concern a deed, will, contract b. The Commission on Audit
or other written instrument. It does not affect a statute or ordinance whose construction or
validity is questioned.

The case is neither predicated on a justiciable controversy, considering that the father is still Sec.2. Mode of Review –
alive and there are no successional rights yet to be resolved.
A judgment or final order resolution of the Commission on Election and the Commission on Audit
But the action is not merely aimed to determine the hereditary right of Juan. It has also the aim may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65, except
to establish his status as an illegitimate child. Since this is his right, the action can prosper. as hereinafter provided (within 30 not 60 days from notice)
Sec.3. Time to file petition –
Thus, the Supreme Court remanded the case to the trial court for further proceedings.
The petitioner shall be filed within 30 days from notice of the judgment, or final order or
Bar Exam (1998) resolution sought to be reviewed.
Q: A student files action for declaratory relief against his school to determine whether he
deserves to graduate with Latin honors. Is this action tenable? [3%] Effect of filing the petition (sec.8)
A: No. The action for declaratory relief is not tenable. Whether the student deserves to The filing of a petition for certiorari shall NOT STAY the execution of the judgment or final order
graduate with Latin honors does not fall within matters subject to declaratory relief, namely, a or resolution sought to be reviewed, unless the SC shall direct otherwise upon such terms as it
deed, will, contract or other written instrument, or a statute, executive order or regulation, may deem just.
ordinance, or any other governmental regulation. (Sec. 1 of Rule 63, 1997 Rules of Civil
Procedure) Effect of filing of motion for new trial or reconsideration
 The filing of a motion for new trial or reconsideration of said judgment or final order or
resolution, if allowed under the procedural rules of the Commission concerned, shall
Rule – 64 interrupt the 30-day period herein fixed.
Review of Judgments and Final Orders or Resolutions of the COMELEC and the COA  If the motion id denied, the aggrieved party may file the petition within the remaining
period, but which shall not be less than 5 days in any event, reckoned from notice of
Constitutional Commission/body: denial.
1. COA
2. COMELEC Sec.4. Docket and other lawful fees –
3. CSC Upon the filing of the petition, the petitioner shall pay to the clerk of court the docket and other
lawful fees and deposit the amount of P500.00 for cost.
COA COMELEC CSC
Sec.5. Form and contents of petition –
Mode of A judgment, A judgment, A judgment, final order or
The petition shall:
Review resolution or final resolution or final resolution of the CSC may
1. Be Verified
/Appeal order(en banc) of the order (en banc) be taken to the CA under
2. Be Filed in 18 legible copies
COA may be brought of the COMELEC Rule 43 of the rules within
3. name the aggrieved party as petitioner
by the aggrieved party may be brought 15 days from notice
4. join as respondents the Commission concerned and the person or persons interested
to the SC on certiorari by the aggrieved (Sec.1&3, Rule 43).
in sustaining the judgment, final order or resolution a quo
under Rule 65 within party to the SC on
5. state the facts with certainty
30 days from notice of certiorari under
6. present clearly the issues involved
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 7. set forth the grounds and brief arguments relied upon for review
8. pray for judgment annulling or modifying the questioned judgment
9. state the specific material dates showing that it was filed within the period fixed
herein,
10. contain a sworn certification against forum shopping
Note: findings of fact of the Commission supported by substantial evidence shall be final and no-
reviewable (except under Rule 65).
The petition shall be accompanied by:
1. a clearly legible duplicate original or certified true copy of the judgment, final order or
resolution subject thereof,
2. together with certified true copies of such material portions of the record as are
reffered to therein and other documents relevant and pertinent thereto
3. proof of service of a copy thereof on the Commission concerned and on the adverse
party, and of the timely payment of docket and other lawful fees.
REMEMBER: 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 the petition sufficient in form and substance:
 it 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.
When may the SC dismiss the petition?
1. When the petition is not sufficient in form and in substance; dismissed outright
2. It the petition was filed manifestly for delay
3. When the question raised are too unsubstantial to warrant further proceedings
Sec.7. Comments of Respondents -
The comments of the respondent shall:
1. Be filed in 18 legible copies
2. The original shall be accompanied by certified true copies of material portion of the
records referred together with other support documents
3. The requisite number of documents attached to the original and a copy thereof shall
be served on the petitioner
Note: 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 the judgment or final order or
resolution sought to be reviewed, unless the Supreme Court shall direct otherwise upon such
terms as may deem just.
To prevent the execution of judgment:
a. The petitioner may availed of the remedy under Rule 65 and may obtain TRO or a writ of
preliminary injunction
Sec.9. Submission for decision -
GR: When shall the case be deemed submitted for decision?
1. Upon the filing of the comments on the petitioner
2. Or upon the filing of such other pleadings or papers as may be required or allowed by
the SC
3. Or upon the expiration of the period to do so
Ex: unless the court sets the case for oral argument, or requires the parties to submit
memoranda.
Limkaichong vs Comelec – April 1,2009
Facts: Petitioner – Jocelyn Limkaichong was aspiring to become a member of the House of
Representative filed her COC with COMELEC for May 2007 Election.
The private repondent filed a petition for her disqualification on the ground that she lacked the
citizenship requirement because there was a substantial and procedural defect in her father’s
naturalization proceeding as the OSG, at that time, was not furnished copy of the material order
of the trial court thereby depriving the OSG of its participation in all stages of the proceedings
whose appearance for the STATE is necessary. Lacking the participation of this indispensable
party, the proceeding is null and void; hence no right could arise therefrom.
Petitioner claimed that she is a natural-born Filipino citizen. Her Chinese-Father was naturalized
to Philippine Citizenship in accordance with law. She was born to a naturalized-Filipino Father
and a Natural-born Mother whose Philippine citizenship was reacquired when her Father was
legally naturalized. Further she avers that the petition should be dismissed because it was in a
nature of collateral attack of her and her father’s citizenship in contravention to the well-
established rule that attack on one’s citizenship may be made through a direct action for its
nullity.
After the casting, counting and canvassing of votes, the petitioner emerged as the winner. The
private respondent later on filed a motion to suspend the proclamation of the petitioner as the
winning candidate.
May 17, 2007 - The COMELEC 2nd division granted the petition for disqualification and directed
the PBOC to strike out her name from the list eligible candidates and suspend her proclamation.
May 18, 2007 – COMELEC en banc issued resolution no. Resolution No. 8062 adopting the
policy-guidelines of not suspending the proclamation of winning candidates with pending
disqualification cases.
May 20, 2007 – Petitioner filed a motion for reconsideration and a motion to lift the order
suspending her proclamation.
May 22, 2007 – Petitioner filed another motion for lifting the order suspending her proclamation
pursuant to Resolution No. 8062
May 25, 2007 – the PBOC reconvened and proclaimed petitioner as the winner in compliance
with Resolution No. 8602.
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On May 30, 2007 – The private respondent filed with the COMELEC 1st division a petition to
nullify and annul the proclamation of petitioner, stating among others that the proclamation of
petitioner violated the May 17, 2007 declaration of the COMELEC 2nd division suspending her
proclamation.
COMELEC 1st division dismissed the petition filed by the private respondent on the ground that
her disqualification case were not yet final and the COMELEC now is divested with its jurisdiction
over the matter because of her proclamation.
General Rule: Well established doctrine of the courts provides that the rules of procedures are
used to help secure, not override, substantial justice. But the doctrine does not warrant wanton
disregard of the Rules of Courts, otherwise no orderly administration of justice can be
maintained.
Exception: procedural rules may be set aside when:
1. It is a procedural defect to correct a patent injustice

June 29, 2007 – COMELEC en banc denied the petitioner’s motion for reconsideration of the
resolution of the COMELEC’s 2nd division in the disqualification case.

August 1, 2007 – petitioner filed a petition for certiorari under rule 65 in relation to Rule 64
within 30 days from notice praying for the annulment of the resolution of the COMELEC 2 nd
division, and the resolution of the COMELEC en Banc in the disqualification case for having been
issued with grave abuse of discretion amounting to lack amounting to lack of jurisdiction. She
averred that since she was already proclaimed on May 25, 2007, had assumed office, and had
started to perform the function as the Representative of the first district of Negros Oriental, the
COMELEC has lost its jurisdiction and it is now the HRET which has jurisdiction over the issue
involving her qualifications for the office.

Issue: Whether or not the remedy of petition for certiorari under rules 65 in relation to rule 64
was proper?

Ruling: Yes. The filing of petition for certiorari under Rule 65 in relation to rule 64 was proper.
The petitioner’s proclamation was valid. When she timely filed her motion for reconsideration
and lifting the order suspending her proclamation on May 20, 2007, it effectively suspends the
execution of the May 17, 2007 resolution of the COMELEC 2nd division. Thus, there is no
impediment to proclaimed her as the winner.

Section 2, Rule 19 of the COMELEC Rules of Procedure provides:

Sec. 2. Period for Filing Motions for Reconsideration. – A motion to reconsider a decision,
resolution, order or ruling of a Division shall be filed within five (5) days from the
promulgation thereof. Such motion, if not pro forma, suspends the execution for
implementation of the decision, resolution, order and ruling.

Furthermore, it has long been established that once a winning candidate has been proclaimed,
taken his oath, assumed office as a member of the House of Representative, the jurisdiction of
the COMELEC over cases relating to his qualification ends, and the jurisdiction of the House of
Representatives Electoral Tribunal Begins. And mere allegation as to the invalidity of her
proclamation does not divest the Electoral Tribunal of its Jurisdiction.
Unless there is patent nullity of the proclamation as it was held in the case of Codilla vs De
Venecia, 393 SCRA 639.

Rule 65
Certiorari, Prohibition and Mandamus

Note:

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 Certiorari Prohibition Mandamus When The rules provides:
Definition  A writ from the higher  The act of prohibiting or the  An order Defeated Certiorari/Prohibition : “and there is No appeal or any other plain, speedy
court to a lower one condition of being issued by a adequate remedy in the ordinary course of law”
requesting a transcript prohibited superior Mandamus : “and there is no other plain, speedy and adequate re
of proceedings for court in the ordinary course of law (exhaustion of administr
review  An order of a superior court ordering a remedy)”
forbidding/inhibiting an public
 A common law writ inferior court to determine official or Take note of the difference.
issued by a superior to a matter outside its body or
one of inferior jurisdiction lower The special civil action of certiorari and prohibition is defeated not by the
jurisdiction court to existence but by the adequacy of a remedy by appeal. When other remedy is
demanding the record perform a available or sufficient to afford redress, the special civil action under the rules
of a particular case for specified will not prosper. This is in view of the doctrine of exhaustion of local remedies
review duty. in relation also with the hierarchy of courts regarding jurisdiction.

 2 types of certiorari Mandamus may lie even if the remedy by appeal is adequate, provided that
1. Petition for review local remedies have been exhausted. Otherwise, it will not prosper.
on certiorari under
rule 45 Note: the Special civil action of petition for certiorari or prohibition may
2. Petition on accordingly be granted where the remedy by appeal is not plain, speedy or
certiorari under rule adequate.
65

Purpose Designed to correct To keep the lower court within Commands a GR: when there is a remedy of appeal certiorari will not lie.
errors of jurisdiction not the limits of its jurisdiction in tribunal, Ex: certiorari is allowed when the appeal does not appear to be plain, speedy and adequate
errors of judgment order to maintain the corporation, remedy in the ordinary course of law and will not promptly relieve a party from the
administration of justice in board, or injurious effects of the order complained of.
Modifying or annulling a orderly channels. person to do
proceeding. the act Hierarchy of courts –
Commanding the respondent required to Under the constitution, the Supreme Court has original jurisdiction to issue writs of certiorari,
to desist from further be done mandamus, prohibition, quo warranto, habeas corpus and injunction. But this is not exclusive.
proceeding in the action or when it or he Meaning it is shared by the SC with the RTC and the CA.
matter specified in the unlawfully Hierarchy of courts principle is an established policy which requires courts of superior
petition. neglects an rank/level are not allowed, except when there are special and important reasons, to take
act which the cognizance cases over which are shared by courts of inferior level . there is an ordained
law sequence of recourse to courts vested with concurrent jurisdiction, beginning from the lowest,
specifically on to the next highest, and ultimately to the highest.
enjoins or
unlawfully The purpose of which is to unclog court dockets and to prevent inordinate demand upon the
excludes court’s time and attention which are better devoted to those matters within its exclusive
another from jurisdiction.
the use and
enjoyment of Interlocutory Orders – (David vs Revira, 420 SCRA 90)
a right or
office to GENERAL RULE: Being an interlocutory order, an order denying demurer to evidence is not
which such appealable. Neither can it be the subject of a petition for certiorari.
other is
entitled

Page 51 of 96
REMEDY: after such denial, the petitioners should present their evidence and if the decision of Distinguished From each other
the trial judge would be adverse to them, they could raise on appeal the same issues raised in Certiorari Prohibition Mandamus
the demurer.
When any: When the proceedings of When any:
1. Tribunal any: 1. tribunal
EXCEPTION: when the denial of demurer (interlocutory order) is tainted with grave abuse of
2. Board or 1. tribunal 2. corporation
discretion amounting to lack or excess of jurisdiction. A petition on certiorari under rule 65
may be filed with the appropriate tribunal. 3. Officer 2. corporation 3. board
3. board 4. officer
4. officer 5. person
5. person
 unlawfully neglects the
 Exercising judicial or  Whether exercising performance of an act
 quasi-judicial judicial, which the law
functions  quasi-judicial or specifically enjoins as a
 ministerial functions duty resulting from an
office, trust, or station
 unlawfully excludes
another from the use
and enjoyment of a right
or office to which such
other is entitled
Has acted: Are:
 without its or his  without of its or his
jurisdiction jurisdiction
 in excess of its or his  in excess of its or his
jurisdiction jurisdiction
 with grave abuse of  with grave abuse of
discretion discretion
all amounting to lack or all amounting to lack or
excess of jurisdiction excess of jurisdiction
And: And:
There is no appeal, nor any plain, speedy, and adequate There is no other plain,
remedy in the ordinary course of law speedy, and adequate
remedy in the ordinary
course of law
Praying that: Praying that: Praying that:
Judgment be rendered Judgment be rendered Judgment be rendered
annulling or modifying the commanding the commanding the
proceedings of such tribunal, respondent to desist from respondent, immediately or
board or officer, and granting further proceedings in the at some other time to be
such incidental reliefs as law action or matter specified specified by the court, to
and justice may require. therein, or otherwise do the act required to be
granting such incidental done to protect the rights
reliefs as law and justice of the petitioner, and to
may require pay the damages sustained
by the petitioner by reason
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 of the wrongful acts of the 6. Land Registration Authority
respondent. 7. Social Security Commission
The petition shall likewise be accompanied by: The petition shall contain: 8. Civil Aeronautics Board
1. a certified true copy of the judgment, final order or 1. a sworn 9. Bureau of Patents, Trademarks and Technology Transfer
resolution subject thereof certification of 10. National Electrification Administration
2. copies of all pleadings and documents relevant and non-forum 11. Energy Regulatory Board
pertinent thereto shopping 12. National Telecommunication Commission
3. and a sworn certification of non-forum shopping 13. Department of Agrarian Reform under RA no. 6657
14. Government Service Insurance System
Material Data Rule:
15. Employees Compensation Commission
3 material dates must be stated in the petition:
1. date when the judgment or final order, or resolution is RECEIVED 16. Agricultural Inventions Board
2. date when motion for new trial or motion for reconsideration when one is filed 17. Insurance Commission
3. date when notice of the denial thereof was RECEIVED 18. Philippine Atomic Energy Commission
19. Board of Investments
Purpose: determine the timeliness of the petition 20. Construction Industry Arbitration Commission
21. Voluntary arbitrators authorized by law
Note: the perfection of an appeal in the manner and within the period prescribed by law is
jurisdictional and failure to perfect an appeal renders the judgment final and executory Sec.2. Petition for Prohibition –
(Mabuhay vs NLRC , 288 SCRA 1)
When the proceedings of any Tribunal, Corporation, Board, Officer or Person whether exercising
Sec.1. – Petition for certiorari – judicial, quasi-judicial function or ministerial functions, are without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or in excess of jurisdiction, and
When any tribunal, board, or officer exercising judicial or quasi-judicial function has acted there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of the
without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack law, a person aggrieved thereby may file a verified petition in a proper court, alleging the facts
or in excess of jurisdiction, and there is no appeal, nor any plain, speedy and adequate remedy in with certainty and praying that judgment be rendered commanding the respondent to desist
the ordinary course of law, a person aggrieved thereby may file a verified petition in a proper from further proceeding in he action or matters specified therein, or, otherwise grant such
court, alleging the facts with certainty and praying that judgment be rendered annulling or incidental reliefs as the law and justice may require.
modifying the proceedings of such tribunal, board or officer and granting such incidental reliefs
as law and justice may require. Sec.3. Petition for Mandamus –

Decision of the following are subject of Certiorari under Rule 65 – When any tribunal, corporation, board, officer or person unlawfully neglects to perform an act
which the law specifically enjoins as a duty resulting from an office, trust, or station or unlawfully
1. NLRC excludes another from the use and enjoyment of a right or office to which such other is entitled,
2. DOJ (justice secretary) rulings – affirming or reversing the resolution of the and there is no plain, speedy, and adequate remedy in the ordinary course of law, the person
investigating prosecutor is final and executor. The remedy is to file a petition for aggrieved thereby may file a verified petition in a proper court, alleging the facts with certainty
certiorari under rule 65 to the CA not a petition for review under rule 43 (alcaraz vs and praying that judgment be rendered commanding the respondent, immediately or at some
other time to be specified by the court, to do the act required to be done to protect the rights of
Gonzalez, September 20, 2006).
the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts
3. Tribunal, board, officer exercising judicial or quasi-judicial functions of the respondent.
Sec.4 When and Where to File the petition –
Decision of the following quasi-judicial body is subject to RULE 43 not RULE 65 (sec.1, rule 43) –
The petition shall be filed NOT LATER THAN 60 days from notice of judgment, final orders or
1. Court of Tax Appeals resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is
2. Civil Service Commission required or not, the petition shall be filed NOT LATER THAN 60 days from the notice of the denial
3. Central Board of Assessment Appeals of the motion.
4. Securities and Exchange Commission
5. Office of the President
Page 53 of 96
The petition shall be filed with the RTC exercising jurisdiction over the territorial area as defined
by the SC, If the petition relates to an act or omission of a:
1. Municipal trial court
2. Corporation
3. Board
4. Officer, or
5. Person
It may also be filed with the COURT OF APPEALS or with the SANDIGANBAYAN, whether or not
the same is in aid of the court’s appellate jurisdiction. The rule used to be that the petition may
be filed with the SANDIGANBAYAN if it is in aid of its appellate jurisdiction but not the petition
may be filed in the SB whether or not the same is in aids of its appellate jurisdiction (AM no.
07-7-12-SC).
IN election cases involving an act or omission of a MUNICIPAL or REGIONAL trial court, the
petition shall be filed exclusively with the COMELEC, in aids of its appellate jurisdiction.
Cases:
Laguna Metts Corporation vs Caalam, July 27, 2009 –
Private respondent filed a complaint for illegal dismissal with the Labor Arbiter. The labor arbiter
decided in favor of private respondent. Petitioner LMC appeal the decision of the labor arbiter to
the NLRC which reversed the appealed decision. Private Respondent timely filed a motion for
reconsideration but was denied. The notice of denial was received on May 6, 2008. Counsel for
private respondent filed with the CA a 15-day period motion for extension of time to file a
petition for certiorari under Rule 65. The CA granted the motion and respondent was given a non-
extendible 15-day period within which to file the petition for certiorari. The petitioner LMC
assailed the resolution of the CA contending that extensions of time to file a petition for certiorari
is no longer allowed under the rules. Is the petitioner correct?
Ans: Yes. The rule used to be that the grant of an extension of time to file a petition for certiorari
under rule 65 was left to the discretion of the court because the rules provide that no extension of
time for filing a petition for certiorari shall be granted except for compelling reason and in no
case exceeds 15-days.
but the rules have been amended, (AM no. 07-7-12-SC) which deleted that provision. The filing of
motion to extend the time to file a petition for certiorari is no longer allowed under the new rules
to avoid unreasonable delay that would violate the constitutional rights of the parties to speedy
disposition of their case.
Lapid vs Laurea –
Spouses Lapid filed complaint for damages against respondents before the RTC. the complaint
alleged that the malicious imputations against their son tarnished their good name and
reputation. It further avers that their son was summarily dismissed from the school without them
being diligently informed. Petitioner filed a motion to declare the respondent as in default which
motion was denied by the court. a motion for reconsideration of such denial was filed but was
denied. a petition for certiorari was filed without indicating the date when the motion for
reconsideration was filed. The CA dismissed the motion. Is the dismissal correct?
ANS: Yes. There are three materials dates that must be stated in a petition for certiorari under
rule 65.
1. Date when notice of judgment, final order or resolutions have been received
2. Date when motion for reconsideration or new trial was filed
3. Date when notice of denial thereof was received
Failure to comply with the requirements shall be a sufficient ground for the dismissal of the
petition. The requirement is for determining the timeliness of the petition.
Parties
a. Person Aggrieved
Concepcion Jr vs COMELEC – 591 SCRA 420 –
Petitioner concepcion is an incumbent Barangay Captain of FORBES PARK, Makati City and at
the same time the National Chairman of NAMFREL. NAMFREL filed a petition for accreditation to
conduct operation quick with the COMELEC. Petitioner was one of the signatories of the petition.
COMELEC in its en banc resolution conditionally grants the petition. The condition provides that
petitioner must be removed from his position and membership of NAMFREL and shall be
disqualified to be a part of the in citizens’ arm in view of the passage of Resolution no. 7798
pursuant to EO no. 94, which provides:
Sec. 3. Prohibition on barangay officials. – No barangay official shall be appointed as member
of the Board of Election Inspectors or as official watcher of each duly registered major political
party or any socio-civic, religious, professional or any similar organization of which they may be
members.
NAMFREL did not question the COMELEC’s RULING.
Aggrieved thereby, petitioner assailed COMELEC’s en banc resolution by filing a petition for
certiorari under rule 65. Would the petition prosper?
ANS: No. the petition for certiorari under rule 65 is misused. Petitioner has no personality to file
a petition for certiorari because he was not a party to, and the direct party, NAMFREL, did not
question the assailed petition. He is not the party-in-interest who can directly assail the
COMELEC’s resolution in an original RULE 65 before this Court.
Under sec.1, Rule 65, an aggrieved party is one who was a party to the original proceedings that
gave rise to the original action for certiorari under Rule 65. The petition for certiorari under rule
65 is not available to any person who feels injured by the decision of a tribunal, board or officer
exercising judicial or quasi-judicial functions.
Page 54 of 96
It would have been another matter if NAMFREL had filed the present petition with the petitioner party in a petition for certiorari. The omission is fatal and a sufficient ground for the rejection of
as intervenor. the petition.

b. Private Respondent and Public Respondent The petitioner did not also obtained the consent of the Office of the Solicitor General (OSG) or at
The petitioner shall join, as private respondent with such public respondents, the person the very least furnished a copy of the petition to the OSG. The OSG is mandated under the
interested in sustaining the proceedings in the court when the petition filed relates to the acts or administrative code (Sec.35,Chapter 12,Title III of
omissions of a:
(the following are the public respondents) Book IV, EO no. 292) to represent the Government in the Supreme Court and the Court of
 judge Appeals in all criminal proceedings.
 Court
Sec.6 Order to Comment –
 Quasi-judicial agency
 Tribunal Petition for mandamus; Petition for prohibition –
 Corporation
 Board, officer or person The court shall issue an order requiring the respondent to comment on the petition within 10
days from receipt of a copy thereof if the petition is sufficient in form and substance to justify
Duty of private respondent Duty of public respondent the process.
 To appear and defend both in his own In the court where the petition is pending:
Such order shall be served on the respondent in such manner as the court may direct, together
behalf and in behalf of the public  Shall not appear in or file or
with a copy of the petition and any annexes thereto.
respondent affected by the comment to the petition or any
proceedings pleading therein, unless otherwise Petition for certiorari –
 Cost awarded in such proceedings in specifically directed by the court
favor of the petitioner shall be against where the petition is pending Before giving due course thereto, the court MAY require the respondents to file their comment
the private respondent only to, and not a motion to dismiss, the petition. Thereafter, the court may require the filing of a
If the case is elevated to a higher court by reply and such other responsive or other pleadings as it may deem necessary and proper.
either party:
 The public respondent shall be Sec.7 Expediting proceedings; injunctive relief –
included therein as nominal parties
The court in which the petition is filed may issue:
 The public respondent shall not
a. Orders expediting the proceedings
appear or participate in the
b. It may also grant a temporary restraining order or a writ of preliminary injunction for the
proceedings therein, unless
preservation of the rights of the parties pending such proceedings
specifically directed by the court
Effect of filing a petition for mandamus/prohibition
c. Indispensable party The petition shall not interrupt the course of the principal case, unless a temporary restraining
order or a writ of preliminary injunction has been issued, enjoining the public respondent from
Golangco vs Fung, 598 SCRA 637 further proceeding with the case.

A complaint for the crime of libel was filed against respondent before the RTC. During trial, the
prosecution failed to present their witnesses despite the request for a subpoena testifecandum.
The RTC then issued an order terminating the prosecution’s presentation of evidence. The
petitioner assailed the order in the CA by filing a petition for certiorari under rule 65 on the
ground of grave abuse of discretion. The petition did not join the PEOPLE of the PHILIPPINES and
did not obtain the consent of the OSG. Will the petition for certiorari prosper?
ANS: No. it will not prosper. The petitioner did not join the People of the Philippines as a party in
his action for certiorari. The People of the Philippines in criminal proceedings are indispensable
Effect of filing a petition for certiorari
The public respondent shall proceed with the principal case within 10 days from filing of a
petition for certiorari with a higher court or tribunal, absent a temporary restraining order or a
preliminary injunction, or upon its expiration. Failure of the public respondent to proceed with
the principal case may be a ground for administrative charge.
Sec.8. Proceedings after comment is filed –
After the comment or other pleadings required by the court are filed, or the time for the filing
thereof has expired, the court may:
Page 55 of 96
 a. Hear the case or
b. Require the parties to submit memoranda
If, after such hearing or filing of memoranda or upon the expiration of the period for filing, the
court finds that the allegations of the petition are true, it shall render judgment for such relief to
which the petitioner is entitled.
When may the court dismiss the petition?
If it finds that the petition:
1. Is patently without merit
2. Prosecuted manifestly for delay
3. The questions raised therein are too unsubstantial to require consideration
In such event, the court may award in favor of the respondent TREBLE COST solidary against the
petitioner and counsel, in addition subjecting counsel to administrative sanctions.
The court may imposed motu proprio, based on res ipsa loquitor, other disciplinary sanctions or
measures on erring lawyers for patently dilatory and unmeritorious petitions for certiorari.
Sec.9. Service and enforcement of order of judgment –
A certified copy of the judgment shall be served upon the court, quasi-judicial agency, tribunal,
corporation, board, officer or 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 rule 39.
DOJ rulings –
Alcaraz vs Gonzalez Sep. 20, 2006 –
A complaint for attempted homicide was filed against alcaraz in the prosecutor office. After the
prosecution conducted an inquest an information was filed with the METC. On motion of alcaraz,
MeTC order the city prosecutor to conduct a preliminary investigation. The city prosecutor finds
probable cause and retain the information. Alcaraz filed a motion for reconsideration and was
denied. from the order of the denial, he filed a petition for review with the DOJ. The Secretary of
Justice issued a resolution granting the petition and ordered the withdrawal of the information.
Gonzales filed a motion for reconsideration which was denied by the DOJ. Aggrieved to the
decision of the DOJ, he filed a petition for review under RULE 43 before the CA seeking reversal of
the DOJ’s Resolution. The CA granted the petition. Alcaraz filed a motion for reconsideration but
was denied.
Was the CA correct to grant the petition?
Ans: NO. the CA was not correct to grant the petition. The petition for review under rule 43 was
not the proper remedy for the respondent. He should have instead filed a petition for certiorari
under rule 65 in appealing his case before the CA. the decision/resolution of the Secretary of
Justice in affirming, modifying, or reversing the resolution of the investigating prosecutor is final
and executory. The legislature has not provided an adequate remedy by appeal in such case.
Thus, the petition for certiorari is available.
Cases:
CERTIORARI –DEFINITION
Triplex Enterprises Inc. vs PNB Republic Bank
Facts: Petitioner sought to annul the sale of two parcels of land situated in Tagaytay City by PNB-
Republic Bank to Solid Builders, Inc. and to compel PNB-Republic Bank to award instead the sale
to it as the highest bidder. Petitioner's claim was rejected by PNB-Republic Bank due to the sale
of the properties to Solid Builders, Inc.
Petitioner moved for the reconsideration of the court a quo's refusal to admit its evidence but it
was denied in an order dated February 26, 1999. The order disallowed the presentation and
admission in evidence of any testimony referring to the December 7, 1994 opinion of the OGCC.
The prohibition was based on the ground that the testimony was in violation of the rule on
privileged communication between attorney and client, i.e., the OGCC and PNB-Republic Bank.
Aggrieved, petitioner filed a petition for certiorari with the Court of Appeals. However, the
appellate court dismissed the petition. Petitioner moved for reconsideration but the same was
denied. Hence, this petition.
Issue: Petitioner claims that the Court of Appeals erred when it ruled that the trial court did not
commit grave abuse of discretion in disallowing the presentation and admission in evidence of
Roque's testimony.
RULING: The petition has no merit.
Certiorari as a special civil action is proper when any tribunal, board or officer exercising
judicial or quasi-judicial functions has acted without or in excess of its jurisdiction, or with
grave abuse of discretion, and there is no appeal nor any plain, speedy and adequate remedy
at law. The writ may be issued only where it is convincingly proved that the lower court
committed grave abuse of discretion, or an act too patent and gross as to amount to an evasion
of a duty, or to a virtual refusal to perform the duty enjoined or act in contemplation of law, or
that the trial court exercised its power in an arbitrary and despotic manner by reason of passion
or
personal hostility.
While certiorari may be maintained as an appropriate remedy to assail an interlocutory order in
cases where the tribunal has issued an order without or in excess of jurisdiction or with grave
abuse of discretion, it does not lie to correct every controversial interlocutory ruling.
Here, petitioner assails the order of the trial court disallowing the admission in evidence of the
testimony of Roque on the opinion of the OGCC. By that fact alone, no grave abuse of discretion
could be imputed to the trial court. Furthermore, the said order was not an error of jurisdiction.
Even assuming that it was erroneous, the mistake was an error in judgment not correctable by
the writ of certiorari. WHEREFORE, the petition is hereby DENIED.
PROHIBITION -DEFINITION
David vs Rivera
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Facts: Claiming to be the owner of an eighteen thousand (18,000)- square meter portion
(hereafter, "subject land") of Lot No. 38-B,1 a five (5)-hectare lot situated at MacArthur Highway,
Dau, Mabalacat, Pampanga, herein respondent Agustin Rivera filed on May 10, 1994 a Complaint
2 for "Maintenance of Peaceful Possession with Prayer for Restraining Order and Preliminary
Injunction" before the Provincial Adjudication Board (PARAB) of San Fernando, Pampanga
against petitioners heirs of Spouses Cristino and Consolacion David. The respondent averred that
the petitioners had been harassing him for the purpose of making him vacate the subject land
although it had already been given to him sometime in 1957 by the parents of the petitioners as
"disturbance compensation", in consideration of his renunciation of his tenurial rights over the
original eighteen (18)-hectare farmholding.
For their part, the petitioners filed a Complaint for ejectment before the Municipal Circuit Trial
Court (MCTC) of Mabalacat and Magalang, Pampanga. They alleged that the respondent was
occupying the subject land without paying rentals therefor. The petitioners also averred that
they need the subject land for their personal use but the respondent refused to vacate it despite
repeated demands.
On September 28, 1995, the MCTC rendered its Decision ordering the respondent to vacate the
subject land. The court found that there was a dearth of evidence supportive of the respondent‘s
claim that the land is agricultural or that it is devoted to agricultural production. Further, it ruled
that the petitioners as the registered owners have a better right to possession of the subject
land.
Without appealing the MCTC Decision but within the period to appeal, the respondent filed
before the Regional Trial Court (RTC) of Angeles City a Petition for prohibition with preliminary
injunction and/or temporary restraining order, seeking the nullification of the MCTC Decision.
The thrust of the petition was that the MCTC had no jurisdiction as the issue before it was
agrarian in nature.
On February 25, 1998, the RTC issued an Order14 denying the motion to dismiss. The court ruled
that the motion, which was filed after the presentation of the plaintiff‘s evidence, partakes of a
demurrer to evidence which under Section 1, Rule 33 of the Rules of Court, 15 may be granted
only upon a showing that the plaintiff has shown no right to the relief prayed for. Noting that
"the evidence presented by the petitioner establishes an issue which is addressed to [the] court
for resolution. . . whether or not the respondent court
had jurisdiction over the subject matter of the case filed before it", the RTC ruled that the denial
of the motion to dismiss is proper. The petitioners moved for reconsideration16 but was denied
in an Order17 dated June 23, 1998.
ISSUE: whether the denial of the motion to dismiss by way of demurrer to evidence was afflicted
with grave abuse of discretion.
RULING: The SC upheld the CA’s Decision.
With the facts doubtlessly presenting a question of jurisdiction, it follows that the respondent
has availed of the proper, speedy and adequate remedy which is the special civil action of
prohibition. It is a settled rule that 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.
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. Also noteworthy is the fact
that the petition for prohibition was filed within the reglementary period to appeal; hence, it
cannot be claimed that the same was used as substitute for a lost appeal.
It should be pointed out that the petitioners elevated to the appellate court the Order of the RTC
denying their motion to dismiss by way of demurrer to evidence. A demurrer to evidence is an
objection by one party to the adequacy of the evidence of his adversary to make out a case.
Otherwise stated, the party demurring challenges the sufficiency of the whole evidence to
sustain a verdict. In this case, the trial court ruled that respondent‘s evidence in support of his
application for a writ of prohibition was sufficient to require the presentation of petitioners‘
contravening proof. The RTC did not commit grave abuse of discretion in so ruling. The Court of
Appeals is therefore correct in upholding the lower court‘s denial of the petitioners‘ motion to
dismiss.
Esquivel vs Ombudsman
FACTS: In their respective complaint affidavits, filed before the Philippine National Police –
Criminal Investigation and Detection Group (PNP-CIDG), Third Regional Office, Camp Olivas, San
Fernando, Pampanga, Eduardo and Catacutan charged herein petitioners Antonio Prospero
Esquivel, municipal mayor of Jaen and his brother, Mark Anthony "Eboy" Esquivel, barangay
captain of barangay Apo, Jaen, with alleged illegal arrest, arbitrary detention, maltreatment,
attempted murder, and grave threats. Also included in the charges were SPO1 Reynaldo Espiritu,
SPO2 Nestor Villa Almayda, and LTO Officer Aurelio Diaz. PO2 Eduardo and SPO1 Catacutan
likewise accused P/S
Insp. Bienvenido C. Padua and SPO3 Inocencio P. Bautista of the Jaen Municipal Police Force of
dereliction of duty.
The initial investigation conducted by the PNP-CIDG showed that at about 12:30 p.m. of March
14, 1998, PO2 Eduardo was about to eat lunch at his parents‘ house at Sta. Monica Village,
Dampulan, Jaen, Nueva Ecija, when petitioners arrived. SPO1 Espiritu, SPO2 Almayda, LTO
Officer Diaz, and several unidentified persons accompanied them. Without further ado,
petitioners disarmed PO2 Eduardo of his Cal. 45 service pistol, which was covered by a
Memorandum Receipt and COMELEC Gun Ban Exemption. They then forced him to board
petitioners’ vehicle and brought him to the Municipal Hall.
Petitioners argue that the Ombudsman committed grave abuse of discretion when he failed to
consider the exculpatory evidence in their favor, namely, the admission of PO2 Eduardo that he
was in good physical condition when he left the police station in Jaen, Nueva Ecija. With such
admission, PO2 Duardo is now estopped from claiming that he was injured since it is conclusive
evidence against him and need not be proven in any other proceeding. Public respondents,
represented by the Office of the Ombudsman through the OSP, counter that petitioners raise a
factual issue which is not a proper subject of a certiorari action. They further postulate that this
is the very same defense advanced by petitioners in the charges against them and being
evidentiary in nature, its resolution can only be threshed out in a full-blown trial.
Page 57 of 96
ISSUE: WON Sandiganbayan has jurisdiction over the offenses and committed grave abuse of
discretion.
HELD: Being an extraordinary remedy, prohibition cannot be resorted to when the ordinary and
usual remedies provided by law are adequate and available.40 Prohibition is granted only where
no other remedy is available or sufficient to afford redress. That the petitioners have another
and complete remedy at law, through an appeal or otherwise, is generally held sufficient reason
for denying the issuance of the writ. In this case, petitioners were not devoid of a remedy in the
ordinary course of law. They could have filed a motion to quash the information at the first
instance but they did not. They have only themselves to blame for this procedural lapse as they
have not shown any adequate excuse for their failure to do so. Petitioners did make a belated
oral motion for time
to file a motion to quash the information, during their much delayed arraignment,42 but its
denial is not a proper subject for certiorari or prohibition as said denial is merely an interlocutory
order.
A writ of prohibition will not be issued against an inferior court unless the attention of the
court whose proceedings are sought to be stayed has been called to the alleged lack or excess
of jurisdiction. The foundation of this rule is the respect and consideration due to the lower
court and the expediency of preventing unnecessary litigation; it cannot be presumed that the
lower court would not properly rule on a jurisdictional objection if it were properly presented to
it. The records show that petitioners only raised the issue
of the alleged lack of jurisdiction by the Sandiganbayan before this Court.
MANDAMUS –DEFINITION
Militante vs. Court of Appeals
ISSUE: WON Carangdang can be compelled to effect the directive/ memorandum of relocation/
resettlement subjecting the said 24 squatter families from unlawfully occupying petitioner‘s
subject property without declaring PD 1315 as void and unconstitutional.
RULING:
In the case at bar, petitioner does not pray that respondent Carangdang should be ordered to
desist from relocating the squatters. What petitioner challenges is
respondent Carangdang's refusal to implement the demolition clearance issued by her
administrative superiors. The remedy for a refusal to discharge a legal duty is mandamus, not
prohibition.
Second. The petitioner is not also entitled to a writ of mandamus. Mandamus is a writ
commanding a tribunal, corporation, board, or person to do the act required to be done when
it or he unlawfully neglects the performance of an act which the law specifically enjoins as a
duty resulting from an office, trust or station, or unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled, there being no other plain,
speedy, and adequate remedy in the ordinary course of law.
It is incumbent upon petitioner to show that he has a well-defined, clear and certain right to
warrant the grant of the writ of mandamus. He failed to discharge this burden. The records
show that there is no direct order from the NHA General Manager addressed to respondent
Carangdang to evict the squatters and demolish their shanties on the subject property. The NHA
demolition clearance issued by General Tobias on January 21, 1982 was addressed to Mayor
Asistio, the mayor of Caloocan City. The clearance's revalidation by NHA General Manager
Monico Jacob was likewise addressed
to Mayor Asistio.

FACTS: Petitioner Pilo Militante is the registered owner of three (3) contiguous parcels of land DISTINGUISHED FROM EACH OTHER:
with an aggregate area of 1,590 square meters in Balintawak, Caloocan City. The three parcels
are covered by TCT Nos. 53066-A, 53067 and 53068, all derived from TCT No. 71357 issued by Pamana vs Court of Appeals (Certiorari vs Prohibition)
the Register of Deeds of Caloocan City. Twenty-four (24) squatter families live in these lots. In
1975, President Marcos issued Presidential Decree (P.D.) No. 13152 expropriating forty (40) Certiorari Prohibition
hectares of land in Bagong Barrio, Caloocan City. Against whom directed only against a directed against a tribunal,
directed? tribunal, board or officer corporation, board, officer or
The NHA called the squatters for a dialogue "to look into the possibility of amicably settling the exercising judicial or quasi- person exercising judicial, quasi-
eviction problem and/or to find out why a clearance should be issued or not for the judicial functions. judicial or ministerial functions
removal/demolition of all the illegal structures in the said property." The squatters did not
attend the meeting. In view of their failure to attend, Joaquin Castano, Acting Division Manager, It is not available as a
Resettlement Division, NHA, wrote a memorandum to the Department Manager, Resettlement remedy for the correction of
Department, NHA, recommending the issuance of a demolition clearance. Respondent acts performed by a sheriff
Annabelle Carangdang, NHA Project Manager in Bagong Barrio, refused to implement the during the execution
clearance to eject the squatters on petitioner's land. At the conference of February 13, 1991, process, which acts are
Carangdang claimed that petitioner‘s land had already been declared expropriated by P.D. 1315. neither judicial nor quasi-
Petitioner then filed with the respondent Court of Appeals a "Petition for Prohibition and judicial but
Mandamus with Declaration as Inexistent and Unconstitutional Presidential Decree No. 1315" are purely ministerial
against the NHA and Carangdang. functions.
As to purpose aimed at "annulling or "commanding the respondent to
modifying" a proceeding desist from further proceedings
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 in the action or matter specified where there is no appeal or any plain, appealable.
in the petition". speedy or adequate
remedy.
Enriquez vs Macadaeg (Prohibition vs Mandamus) As to the period of A petition for certiorari should be filed Ordinary appeals
filing not later than sixty days from the notice should be filed
Prohibition Mandamus of judgment, order, or resolution. within fifteen days
Case Type a case where a judge is a case where a tribunal from the notice of
proceeding in defiance of the "unlawfully neglects the If a motion for new trial or motion for judgment or final
Rules of Court by refusing to performance of an act which the reconsideration was timely filed, the order appealed
dismiss an action which would law specifically enjoins as a duty period shall be counted from the denial from.
not be maintained in his court. resulting from an office" or of the motion. Where a record
The remedy in such case is "unlawfully excludes another on appeal is
prohibition. from the use and enjoyment of a required, the
right." appellant must file
a notice of appeal
Madrigal Transport vs Lapanday Holdings Corps and a record on
(Certiorari vs Appeal) appeal within
thirty days from
Certiorari Appeal the said notice of
Purpose Certiorari is a remedy designed for the Where the error is judgment or final
correction of errors of jurisdiction, not not one of order.
errors of judgment. jurisdiction, but of
an error of law or A petition for
fact -- a mistake of review should be
judgment -- filed and served
appeal is the within
remedy. fifteen days from
As to the manner of Over a certiorari, the higher court uses Over an appeal, the notice of
filing its original jurisdiction in accordance the CA exercises denial of the
with its power of control and its appellate decision, or of the
supervision over the proceedings of jurisdiction and petitioner‘s timely
lower courts. power of review. filed motion for
Petition for certiorari is an original and new trial or
independent action that was not part of An appeal is thus motion for
the trial that had resulted in the a continuation of reconsideration.
rendition of the judgment or order the original suit.
complained of. In an appeal by
Parties In contrast, the parties to a petition for The parties to an certiorari, the
certiorari are the aggrieved party (who appeal are the petition should be
thereby becomes the petitioner) against original parties to filed also within
the lower court or quasi-judicial agency, the action. fifteen days from
and the prevailing parties (the public the notice of
and the private respondents, judgment or final
respectively). order, or of the
As to the Subject Since the issue is jurisdiction, an original Only judgments or denial of the
Matter action for certiorari may be directed final orders and petitioner‘s
against an interlocutory order of the those that the motion for new
lower court prior to an appeal from the Rules of Court so trial or motion for
judgment; or declare are reconsideration.

Page 59 of 96
 Prohibition distinguished from Injunction
Prohibition Quo Warranto
The writ of prohibition, even when A quo warranto proceeding is the
directed against persons acting as proper legal remedy to determine
judges or other judicial officers, the right or title to the contested
cannot be treated as a substitute for public office and to oust the holder
quo warranto or be rightfully called from its enjoyment. It is brought
upon to perform any of the against the person who is alleged to
functions of the writ. If there is a have usurped, intruded into, or
court, judge or officer de facto, the unlawfully held or exercised the
title to the office and the right to act public office, and may be
cannot be questioned by prohibition. commenced by the Solicitor General
If an intruder takes possession of a or a public prosecutor, as the case
judicial office, the person may be, or by any person claiming to
dispossessed cannot obtain relief be entitled to the public office or
through a writ of prohibition position usurped or unlawfully held
commanding the alleged intruder to or exercised by another.
cease from performing judicial acts,
since in its very nature prohibition is
an improper remedy by which to
determine the title to an office.
As to the need for a A motion for reconsideration is Such motion is not Prohibition Injunction
Motion for generally required prior to the filing of a required before Prohibition is a special civil action Preliminary injunction is an order
Reconsideration petition for certiorari, in order to afford appealing a seeking a judgment commanding a granted at any stage of an action
the tribunal an opportunity to correct judgment or final tribunal, corporation, board, or or proceeding prior to the
the alleged errors. Note also that this order. officer to desist from further judgment or final order (not final
motion is a plain and adequate remedy proceeding in the action because it and executory), requiring a party
expressly available under the law. has no jurisdiction, is acting in or a court, agency or a person to
excess of jurisdiction or has refrain from a particular act or
Aquino vs Court of Appeals (Certiorari under Rule 65 and 45 distinguished) gravely abused its discretion acts. It may also require the
amounting to lack of jurisdiction performance of a particular act or
Rule 65 - Certiorari Rule 45 - Certiorari (Sec.2, Rule 65, Rules of Court). acts, in which case it shall be
In a petition for certiorari under A party desiring to appeal by known as a preliminary mandatory
Rule 65, only jurisdictional issues certiorari from a judgment or injunction (sec.1, Rule 58).
may be raised, as when a court or final order or resolution of the
tribunal has acted "without or in Court of Appeals, the
excess of jurisdiction, or with Sandiganbayan, the Regional Trial Topacio vs Ong (Prohibition vs Quo Warranto)
grave abuse of discretion Court or other courts whenever
amounting to lack or excess of authorized by law, may file with
jurisdiction." The extraordinary the Supreme Court a verified
writ of certiorari cannot legally petition for review on certiorari.
be used for any other purpose. The petition shall raise only
questions of law which must be
In a special civil action for distinctly set forth.
certiorari, the Court cannot
correct errors of fact which the
lower court or tribunal may have
committed.

Page 60 of 96
Morabe vs Brown (Mandamus distinguished from Injunction)
Mandamus
The action of the petitioner is not an
action of injunction but one of
mandamus, because it seeks the
performance of a legal duty, the
reinstatement of Pablo S. Afuang.
The writ known as preliminary
mandatory injunction is also
amandamus, though merely
provisional in character.
T For certiorari to lie, it must be
Mandamus distinguished from Quo Warranto
Mandamus
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."
Jurisdiction and Exercise of Jurisdiction Distinguished
Herrera vs Barretto
Jurisdiction
Jurisdiction is the authority to hear
and determine a cause —
the right to act in a case. Since it is
the power to hear and determine,
it does not depend either upon the
regularity of the exercise of that
power or upon the rightfulness of
the decisions made.
The authority to decide a cause at
all, and not the decision rendered
therein, is what makes up
jurisdiction.
Error of Jurisdiction and Error of Judgment Distinguished
Microsoft Corp. vs Best Deal Computer Center Corporation
Error of Jurisdiction
Injunction
An injunction, is available only
against acts about to be committed
or actually being committed, and
not against past acts; that
injunction is preventive in nature
only.
Quo Warranto
A quo warranto proceeding is the
proper legal remedy to determine
the right or title to the contested
public office and to oust the
holder from its enjoyment.
Exercise of Jurisdiction
Where there is jurisdiction of the
person and subject matter, as we
have said before, the decision of
all other questions arising in the
case is but an exercise of that
jurisdiction.
Error of Judgment
shown that the tribunal, board or
officer exercising judicial functions
acted without or in excess of
jurisdiction or with grave abuse of
discretion amounting to lack or
excess of jurisdiction, and that
there is no appeal nor any plain,
speedy and adequate remedy in
the ordinary course of law for the
purpose of amending or nullifying
the proceeding.
The sole office of the writ of
certiorari is the correction of errors
of jurisdiction including the
commission of grave abuse of
discretion amounting to lack of
jurisdiction, and does not include
correction of public respondent's
evaluation of the evidence and
factual findings thereon.
-error committed in the exercise
of jurisdiction.
The petition for certiorari must be
based on jurisdictional grounds
because as long as the respondent
acted with jurisdiction, any error
committed by him or it in the
exercise thereof will amount to
nothing more than an error of
judgment which may be reviewed
or corrected only by appeal. Even
an abuse of discretion is not
sufficient by itself to justify the
issuance of a writ of certiorari.
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Conclusiveness of court’s findings as to its jurisdiction
Campos vs Wislizenus –
The general rule is that, where the jurisdiction of the court depends upon the existence of facts,
and the court judicially considers and adjudicates the question of its jurisdiction, and decides
that the fact exist which are necessary to give it jurisdiction of the case, the finding is conclusive
and cannot be controverted in a collateral proceeding.
The rule applies to a case where the proper service of notice on the candidates voted for was
challenged and the court determined upon the facts presented, after hearing the allegations of
the parties and their arguments based thereon, that service had not been made as required by
law. Such a determination involves a mixed question of law and fact; and it is a rule, as stated in
the case cited, that, where the jurisdiction of the court depends upon the determination of a
question of fact and that question has been determined by the court after a hearing, that
determination is conclusive and cannot be attacked collaterally. In the case before us evidence
as to the fact of service was introduced by the petitioner and the sufficiency of that evidence
was challenged by the respondent. The petitioner did not take advantage of the opportunity
given him by the challenge to present other and further evidence in relation to the service but
stood squarely upon the facts already presented and accepted a decision of the court thereon.
Under such circumstances there was nothing left for the court to do except to decide the
question upon the facts as they were. The court did so; and although to say so is unnecessary to
a decision of this case, we are of the opinion that its finding on the facts as they existed of record
at the time was well founded.
ABAD SANTOS VS PROVINCE OF TARLAC (DEFINITION) – the terms are mostly defined in the
case of Madrigal Transport Inc. vs Lapanday Holdings Corporation
WITHOUT JURISDICTION
- means that the court acted with absolute lack of authority.
LACK OF JURISDICTION
- An act of a court or tribunal may only be considered as in grave abuse of discretion when it is
performed in a capricious or whimsical exercise of judgment which is equivalent to lack of
jurisdiction.
EXCESS OF JURISDICTION
- when the court transcends its power or acts without any statutory authority.
GRAVE ABUSE OF DISCRETION
- implies such capricious and whimsical exercise of judgment as to be equivalent to lack or excess
of jurisdiction; in other words, power is exercised in an arbitrary or despotic manner by reason of
passion, prejudice, or personal hostility; and such exercise is so patent or so gross as to amount
to an evasion of a positive duty or to a virtual refusal either to perform the duty enjoined or to
act at all in contemplation of law.
EFFECT OF ERRONEOUS EXERCISE OF JURISDICTION
Napa vs Weissenhagen
The writ of certiorari in so far as it was a method by which mere errors of an inferior court could
be corrected no longer exists. Its place is now taken by the appeal. So long as the inferior court
maintains jurisdiction, its errors can be corrected only by that method (APPEAL). The writ in
this country has been confined to the correction of defects of jurisdiction solely and cannot be
legally used for any other purpose.
If the judgment of the justice's court was void, it was nevertheless appealable, although the
losing party might have been able to rid himself of it by other means. Having been appealed, it
stands upon substantially the same footing in the appellate court, so far as the appeal itself is
concerned, as any other judgment of a justice's court and the jurisdiction of the appellate court
in that appeal is as full and complete as it is any other.
PLAIN, SPEEDY AND ADEQUATE REMEDY
San Pedro vs Hon. Aspala
A "plain" and "adequate remedy" is a motion for reconsideration of the assailed order or
resolution, the filing of which is an indispensable condition to the filing of a special civil action for
certiorari. This is to give the lower court the opportunity to correct itself.
If petitioner had an adequate remedy, namely, a petition for review on certiorari under Rule
45 of the Rules of Court, a special civil action for certiorari was, therefore, not the correct
remedy. (CAMUTIN VS SPOUSES POTENTE)
There are, of course, exceptions to the foregoing rule, to wit (SIM VS NLRC):
(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 proceeding 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.
PROHIBITION AGAINST ACCOMPLISHED ACTS
Alcantara vs Ermita
Facts: On October 13, 2005, lawyers Samson S. Alcantara, Ed Vincent S. Albano, and Rene B.
Gorospe, herein petitioners, filed with this Court the instant petition for prohibition in their
capacity as Filipino citizens and taxpayers. They alleged that under Article XVII of the
Constitution, President Macapagal- Arroyo has no authority to participate in the process to
Page 62 of 96
amend or revise the Constitution. Likewise, she has no power to create a Consultative
Commission to study and propose amendments and allocate public funds for its operations.
RULING: From the foregoing, it is evident that the writ of prohibition is one which commands the
person to whom it is directed not to do something which he is about to do. If the thing is already
done, it is obvious that the writ of prohibition cannot undo it, for that would require an
affirmative act, and the only effect of a writ of prohibition is to suspend all action, and to prevent
any further proceeding in the prohibited direction.[4] In other words, prohibition is a preventive
remedy to restrain future action. Prohibition, as a rule, does not lie to restrain an act that is
already afait accompli. The Consultative Commission has been dissolved. Consequently, we find
no more reason to resolve the constitutional issues raised by petitioners.
MINISTERIAL ACTS
Pefianco vs Moral
In fine, the trial court's Order of 23 April 1997 denying petitioner's motion to dismiss is not a
mere error of judgment as the Court of Appeals held, but a grave abuse of discretion amounting
to lack or excess of jurisdiction because, to capsulize, the Order is a patent nullity for failure to
comply with the provisions of the rules requiring that a resolution on a motion to dismiss should
clearly and distinctly state the reasons therefor; and, respondent is clearly not entitled to the
writ of mandamus as she did not appeal the DECS resolution dismissing her from service, and
there is no law or rule which imposes a ministerial duty on petitioner to furnish respondent with
a copy of the investigation report, hence her petition clearly lacked a cause of action. In such
instance, while the trial court's order is merely interlocutory and nonappealable, certiorari is the
proper remedy to annul the same since it is rendered with grave abuse of discretion.
PIMENTEL VS EXECUTIVE SECRETARY
It should be emphasized that under our Constitution, the power to ratify is vested in the
President, subject to the concurrence of the Senate. The role of the Senate, however, is limited
only to giving or withholding its consent, or concurrence, to the ratification. Hence, it is within
the authority of the President to refuse to submit a treaty to the Senate or, having secured its
consent for its ratification, refuse to ratify it.Although the refusal of a state to ratify a treaty
which has been signed in its behalf is a serious step that should not be taken lightly, such
decision is within the competence of the President alone, which cannot be encroached by this
Court via a writ of mandamus. This Court has no jurisdiction over actions seeking to enjoin the
President in the performance of his official duties. The Court, therefore, cannot issue the writ of
mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the executive
branch of the government to transmit the signed text of Rome Statute to the Senate.
MANDAMUS TO DIRECT EXERCISE OF A JUDGMENT IN A PARTICULAR WAY
HIPOS SR. VS. JUDGE BAY
There is indeed an exception to the rule that matters involving judgment and discretion are
beyond the reach of a writ of mandamus, for such writ may be issued to compel action in those
matters, when refused. However, mandamus is never available 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 other words, while a judge refusing to act on a Motion to
Withdraw Informations can be compelled by mandamus to act on the same, he cannot be
compelled to act in a certain way, i.e., to grant or deny such Motion. In the case at bar, Judge
Bay did not refuse to act on the Motion to Withdraw Informations; he had already acted on it by
denying the same. Accordingly, mandamus is not available anymore. If petitioners believed that
Judge Bay committed grave abuse of discretion in the issuance of such Order denying the Motion
to Withdraw Informations, the proper remedy of petitioners should have been to file a Petition
for Certiorari against the assailed Order of Judge Bay.
COMELEC v. Judge Quijano-Padilla, G. R. No. 151992, September 18, 2002
PHOTOKINA filed with the Regional Trial Court, Branch 215, Quezon City a petition for
mandamus, prohibition and damages (with prayer for temporary restraining order, preliminary
prohibitory injunction and preliminary mandatory injunction) against the COMELEC and all its
Commissioners,[14] docketed as Special Civil Action No. Q- 01- 45405. PHOTOKINA alleged three
causes of action: first, the deliberate refusal of the COMELEC and its Commissioners to
formalize the contract rendered nugatory the perfected contract between them; second, in
announcing that the VRIS Project has been junked and that he has plans to re-engineer the
COMELEC’s entire modernization program, Chairman Benipayo committed grave abuse of
discretion; and third, the COMELEC’s failure to perform its duty under the contract has caused
PHOTOKINA to incur damages since it has spent substantial time and resources in the
preparation of the bid and the draft contract.
PHOTOKINA, though the winning bidder, cannot compel the COMELEC to formalize the contract.
Since PHOTOKINA’s bid is beyond the amount appropriated by Congress for the VRIS Project, the
proposed contract is not binding upon the COMELEC and is considered void; and that in issuing
the questioned preliminary writs of mandatory and prohibitory injunction and in not dismissing
Special Civil Action No. Q-01-45405, respondent judge acted with grave abuse of discretion.
Petitioners cannot be compelled by a writ of mandamus to discharge a duty that involves the
exercise of judgment and discretion, especially where disbursement of public funds is concerned.
No rule of law is better settled than that mandamus does not lie to enforce the performance of
contractual obligations.[34] As early as 1924, Justice Street, in Quiogue vs. Romualdez,[35]
already set forth the justification of this rule, thus:
“Upon the facts above stated we are of the opinion that the writ of mandamus is not the
appropriate, or even an admissible remedy. It is manifest that whatever rights the petitioner
may have, upon the facts stated, are derived from her contract with the city; and no rule of law
is better settled than that mandamus never lies to enforce the performance of private contracts.
x x x The petitioner’s remedy, if any she has, is by an original action in the Court of First
Instance to compel the city to pay the agreed price or to pay damages for the breach of contract.
Metropolitan Manila Development Authority, et al. v. Concerned Residents of Manila Bay, G.R.
Nos. 171947-48, December 18, 2008
Cleaning or Rehabilitation of Manila Bay Can be Compelled by Mandamus.
Page 63 of 96
Petitioners maintain that the MMDA’s duty to take measures and maintain adequate solid waste
and liquid disposal systems necessarily involves policy evaluation and the exercise of judgment
on the part of the agency concerned. They argue that the MMDA, in carrying out its mandate,
has to make decisions, including choosing where a landfill should be located by undertaking
feasibility studies and cost estimates, all of which entail the exercise of discretion.
Respondents, on the other hand, counter that the statutory command is clear and that
petitioners’ duty to comply with and act according to the clear mandate of the law does not
require the exercise of discretion. According to respondents, petitioners, the MMDA in
particular, are without discretion, for example, to choose which bodies of water they are to
clean up, or which discharge or spill they are to contain. By the same token, respondents
maintain that petitioners are bereft of discretion on whether or not to alleviate the problem of
solid and liquid waste disposal; in other words, it is the MMDA’s ministerial duty to attend to
such services.
The Supreme Court agreed with the respondents.
First off, the petitioners’ obligation to perform their duties as defined by law, on one hand, and
how they are to carry out such duties, on the other, are two different concepts.
The cleanup and/or restoration of the Manila Bay is only an aspect and the initial stage of the
long-term solution. The preservation of the water quality of the bay after the rehabilitation
process is as important as the cleaning phase. It is imperative then that the wastes and
contaminants found in the rivers, inland bays, and other bodies of water be stopped from
reaching the Manila Bay. Otherwise, any cleanup effort would just be a futile, cosmetic exercise,
for, in no time at all, the Manila Bay water quality would again deteriorate below the ideal
minimum standards set by PD 1152, RA 9275, and other relevant laws. It thus behooves the
Court to put the heads of the petitioner-department-agencies and the bureaus and offices under
them on continuing notice about, and to enjoin them to perform, their mandates and duties
towards cleaning up the Manila Bay and preserving the quality of its water to the ideal level.
Under what other judicial discipline describes as “continuing mandamus,”[36] the Court may,
under extraordinary circumstances, issue directives with the end in view of ensuring that its
decision would not be set to naught by administrative inaction or indifference. In India, the
doctrine of continuing mandamus was used to enforce directives of the court to clean up the
length of the Ganges River from industrial and municipal pollution.
The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM, PCG, PNP
Maritime Group, DILG, and also of MWSS, LWUA, and PPA, in line with the principle of
“continuing mandamus,” shall, from finality of this Decision, each submit to the Court a quarterly
progressive report of the activities undertaken in accordance with this Decision.
Manalo v. PAIC Savings Bank, G.R. No. 146531, March 18, 2005
This is a case involving a writ of mandamus compelling respondent bank (1) to allow him to
redeem and/or repurchase the subject lots for P18,000,000.00; and (2) to release to him TCT No.
6076. On June 29, 1997, when Angsico sold the lot to Manalo, Angsico was not the owner of the
subject property simply because at the time he (Angsico) purchased the same property from
Vargas and/or S. Villanueva on December 23, 1992, said sellers were no longer the lawful owners
of the property.
As correctly pointed out by the appellees, after the expiration of the one (1) year redemption
period and no redemption was made on December 5, 1985, PAIC Bank ipso facto became the
legal owner in fee simple of the subject lot and its improvements, being the highest bidder in the
auction sale and the vendee in the Sheriff’s Certificate of Sale duly registered a year before and
which entitles it to the issuance of a new certificate of title in his name.
Mandamus is not the proper recourse to enforce petitioner’s alleged right of redemption. To
begin with, mandamus applies as a remedy only where petitioner’s right is founded clearly in law
and not when it is doubtful.[3] 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.
On December 4, 1985 or when respondent Vargas failed to exercise her right of redemption
within the one (1) year redemption period, respondent bank ipso facto became the absolute
owner of the lots. Surprisingly, however, on December 23, 1992, she sold the property for
P18,000,500.00 to Angsico, who eventually transferred his rights to petitioner. Not only that, on
August 24, 1994, respondent Vargas still leased to petitioner a portion of the subject lots.
Verily, when respondent bank became the owner of the lots on December 4, 1985, respondent
Vargas could no longer legally transfer, cede and convey the property to petitioner.
Moreover, mandamus cannot be availed of as a remedy to enforce the performance of
contractual obligations.
CLEAR AND DEFINED RIGHT:
UP Board of Regents v. Court of Appeals
Private respondent herein is a citizen of India and a holder of a Philippine visitor’s visa. She
enrolled in a doctoral program in anthropology of the University of the Philippines. After
completing her units of course work required in her doctoral program, she left the country to
work in Rome. After two years, she returned to the Philippines to work on her dissertation. Upon
her presentation of her dissertation for approval to the panel, Dr. Medina, a dean’s
representative to the panel, noticed that some portions of her work were lifted from other
works without the proper acknowledgement. Nonetheless, she was allowed to defend her
dissertation. She passed her oral defense, which was approved by four of the five panelists with
the condition that she shall incorporate certain amendments to the final copy of her
dissertation. However, in her final submission of the copy of her dissertation, she failed to
incorporate the necessary revisions. With this development, Dr. Medina formally charged her
with plagiarism and recommended that the doctorate granted upon her be withdrawn. After an
investigation, the College of Social Sciences and Philosophy (CSSP) College Assembly
recommended the withdrawal of her doctorate degree, which was approved by the U.P. Board
of Regents. Private respondent filed a petition for mandamus with prayer for a writ of
preliminary injunction and damages against petitioners herein, alleging that they had unlawfully
Page 64 of 96
withdrawn her degree without justification. The trial court dismissed her petition. However, on
appeal, the Court of Appeals reversed the lower court’s decision. Hence, this petition.
The narration of facts showed that various committees were formed to investigate the charges
that private respondent committed plagiarism. In all investigations held, she was heard in her
defense. Where it was shown that the conferment of an honor or distinction was obtained
through fraud, a university has the right to withdraw the honor or distinction it has conferred.
Under the U.P. Charter, the Board of Regents is the highest governing body of the U.P. In the
case at bar, the Board of Regents’ decision to withdraw private respondent’s doctorate degree
was based on records, including her admission that she committed the offense. The Supreme
Court reversed the decision of the Court of Appeals and the petition for mandamus was
dismissed.
1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; MANDAMUS, DEFINED; NOT AVAILABLE TO
RESTRAIN THE EXERCISE OF ACADEMIC FREEDOM; CASE AT BAR. - Mandamus is a writ
commanding a tribunal, corporation, board or person to do the act required to be done when it
or he unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station, or unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled, there being no other plain, speedy,
and adequate remedy in the ordinary course of law. In University of the Philippines Board of
Regents vs. Ligot-Telan, 227 SCRA 342 (1993), this Court ruled that the writ was not available to
restrain U.P. from the exercise of its academic freedom. In that case, a student who was found
guilty of dishonesty and ordered suspended for one year by the Board of Regents, filed a petition
for mandamus and obtained from the lower court a temporary restraining order stopping U.P.
from carrying out the order of suspension. In setting aside the TRO and ordering the lower court
to dismiss the student’s petition, this Court said: [T]he lower court gravely abused its discretion
in issuing the writ of preliminary injunction of May 29, 1993. The issuance of the said writ was
based on the lower court’s finding that the implementation of the disciplinary sanction of
suspension on Nadal “would work injustice to the petitioner as it would delay him in finishing his
course, and consequently, in getting a decent and good paying job.” Sadly, such a ruling
considers only the situation of Nadal without taking into account the circumstances, clearly of
his own making, which led him into such a predicament. More importantly, it has completely
disregarded the overriding issue of academic freedom which provides more than ample
justification for the imposition of a disciplinary sanction upon an erring student of an institution
of higher learning. From the foregoing arguments, it is clear that the lower court should have
restrained itself from assuming jurisdiction over the petition filed by the Nadal. Mandamus is
never issued in doubtful cases, a showing of a clear and certain right on the part of the petitioner
being required. It is of no avail against an official or government agency whose duty requires the
exercise of discretion or judgment.
WHEN AND WHERE FILED (SECTION 4, A.M. NO. 07-7-12-SC):
Laguna Metts Corporation v. Caalam, et al.
Facts:
Private respondents Aries C. Caalam and Geraldine Esguerra filed a labor case against petitioner
Laguna Metts Corporation (LMC).The labor arbiter decided in favor of private respondents. On
appeal, the NLRC reversed the decision of the labor arbiter. Private respondents’ motion for
reconsideration was denied.
Counsel for respondents filed a motion for extension of time to file petition for certiorari under
Rule 65 of the Rules of Court; a 15-day extension period was prayed for. In a resolution dated
August 7, 2008, the CA granted the motion and gave private respondents a non-extendible
period of 15 days within which to file their petition for certiorari. LMC moved for the
reconsideration of the said resolution claiming that extensions of time to file a petition for
certiorari are no longer allowed under Section 4, Rule 65 of the Rules of Court, as amended by
A.M. No. 07-7-12-SC. This was denied by the CA.
Aggrieved, LMC now assails the resolutions dated August 7, 2008 and October 22, 2008 of the
Court of Appeals in this petition for certiorari under Rule 65 of the Rules of Court.
Issue: Whether or not CA committed grave abuse of discretion when it granted private
respondents’ motion for extension of time to file petition for certiorari.
Held:
Section 4 of Rule 65 prescribes a period of 60 days within which to file a petition for certiorari.
The 60-day period is deemed reasonable and sufficient time for a party to mull over and to
prepare a petition asserting grave abuse of discretion by a lower court. The period was
specifically set to avoid any unreasonable delay that would violate the constitutional rights of
the parties to a speedy disposition of their case.
While the proper courts previously had discretion to extend the period for filing a petition for
certiorari beyond the 60-day period, the amendments to Rule 65 under A.M. No. 07-7-12-SC
disallowed extensions of time to file a petition for certiorari with the deletion of the paragraph
that previously permitted such extensions.
If the Court intended to retain the authority of the proper courts to grant extensions under
Section 4 of Rule 65, the paragraph providing for such authority would have been preserved. The
removal of the said paragraph under the amendment by A.M. No. 07-7-12-SC of Section 4, Rule
65 simply meant that there can no longer be any extension of the 60-day period within which to
file a petition for certiorari.
The rationale for the amendments under A.M. No. 07-7-12-SC is essentially to prevent the use
(or abuse) of the petition for certiorari under Rule 65 to delay a case or even defeat the ends of
justice. Deleting the paragraph allowing extensions to file petition on compelling grounds did
away with the filing of such motions. As the Rule now stands, petitions for certiorari must be
filed strictly within 60 days from notice of judgment or from the order denying a motion for
reconsideration.
In granting the private respondents’ motion for extension of time to file petition for certiorari,
the Court of Appeals disregarded A.M. No. 07-7-12-SC. The action amounted to a modification, if
not outright reversal, by the Court of Appeals of A.M. No. 07-7-12-SC. In so doing, the Court of
Appeals arrogated to itself a power it did not possess, a power that only this Court may
exercise.For this reason, the challenged resolutions dated August 7, 2008 and October 22, 2008
were invalid as they were rendered by the Court of Appeals in excess of its jurisdiction.
WHEN AND WHERE FILED (SECTION 4, A.M. NO. 07-7-12-SC):
Lapid v. Laurea
Page 65 of 96
Facts:
Spouses Ramon Isidro P. Lapid and Gladys B. Lapid are the parents of seven-year-old Christopher
B. Lapid, who was a Grade 1 pupil of the respondent school, St. Therese of the Child Jesus.
Private respondents Esperanza N. Prim, Norilyn A. Cruz, Flordeliza C. Santos and Macario B.
Binondo are its directress, teacher-in-charge, guidance counselor and principal, respectively.
Petitioners filed a complaint for damages against the private respondents before the RTC.
Petitioners averred that their son was summarily dismissed from school sans notice and hearing.
Petitioners denied any knowledge of the alleged letters of complaint filed by the parents whose
children were allegedly offended by Christopher. As a result of the strained relations between
the Lapids and the school management, Christopher was transferred to a different school
immediately thereafter. According to petitioners, the school’s malicious imputation against their
son tarnished their good name and reputation.
Eventually, petitioners filed a motion to declare respondent school as in default, which motion
was denied by the trial court. With the denial of their motion for reconsideration, petitioners
filed a petition for certiorari with the Court of Appeals, which was dismissed for failure to
indicate the particular date of filing the motion for reconsideration with the RTC. On motion for
reconsideration, petitioners still failed to indicate said date thus, it was likewise denied. Hence
this petition.
Issue: WON the CA erred in dismissing the petition for certiorari filed by petitioners on the
ground of formal and procedural deficiency, i.e., the petitioners’ failure to state a material date
in their petition for certiorari
Ruling:
After a careful consideration of the submissions of the parties, particularly their respective
memoranda, we are constrained to agree with the ruling of the respondent appellate court
which dismissed the instant petition for certiorari. We find no reversible error in the assailed
resolutions of the Court of Appeals because in filing a special civil action for certiorari without
indicating the requisite material date thereon, petitioners violated basic tenets of remedial law,
particularly Rule 65 of the Rules of Court.
There are three material dates that must be stated in a petition for certiorari brought under Rule
65. First, the date when notice of the judgment or final order or resolution was received; second,
the date when a motion for new trial or for reconsideration was filed; and third, the date when
notice of the denial thereof was received. In the case before us, the petition filed with the CA
failed to indicate the second date, particularly the date of filing of their motion for
reconsideration. As explicitly stated in the aforementioned Rule, failure to comply with any of
the requirements shall be sufficient ground for the dismissal of the petition.
The rationale for this strict provision of the Rules of Court is not difficult to appreciate. As stated
in Santos vs. Court of Appeals, the requirement is for purpose of determining the timeliness of
the petition, thus:
The requirement of setting forth the three (3) dates in a petition for certiorari under Rule 65 is
for the purpose of determining its timeliness. Such a petition is required to be filed not later than
sixty (60) days from notice of the judgment, order or Resolution sought to be assailed. Therefore,
that the petition for certiorari was filed forty-one (41) days from receipt of the denial of the
motion for reconsideration is hardly relevant. The Court of Appeals was not in any position to
determine when this period commenced to run and whether the motion for reconsideration
itself was filed on time since the material dates were not stated.
All told, no reversible error can be ascribed to the Court of Appeals for dismissing the petition for
certiorari and later denying the petitioners’ motion for reconsideration.
Petition denied.
PERSON AGGRIEVED: Concepcion, Jr. v. COMELEC
Facts:
The National Citizen’s Movement for Free Elections (NAMFREL) filed a petition for Accreditation
to Conduct the Operation Quick Count with the COMELEC. The petitioner was the incumbent
Punong Barangay of Barangay Forbes Park, Makati City, was one of the signatories of the
NAMFREL petition in his capacity as the National Chairman of NAMFREL.
On the same date when the petition was filed, COMELEC promulgated Resolution No. 7798
wherein it prohibited among others “the appointment of barangay officials which includes the
Punong Barangay, Barangay Kagawad, Barangay Secretary, Barangay Treasurer, and Barangay
Tanod, as Chairman/person and/or Member of the BEIs or as official watcher of any candidate,
duly registered major political party, or any similar organization, or any socio-civic, religious,
professional [sic], in the May 14, 2007 National and Local Elections. The prohibition extends to
barangay officials, employees and tanods, who are members of accredited citizen’s arms.”
The COMELEC ruled on NAMFREL’s petition, conditionally granting in the following tenor: “…
There is, however, one important condition that must be fulfilled by the petitioner before its
accreditation as citizen’s arm could legally take effect. Accordingly, Mr. Jose S. Concepcion, Jr.,
the National Chairman of NAMFREL, must first be removed both as a member and overall
Chairman of said organization…. This is explicitly provided for in COMELEC Resolution No. 7798.”
Also, it further subjected NAMFREL from enjoining and encouraged by the Commission to re-
organize.
Thereafter, NAMFREL filed a manifestation and request for re-examination which contain therein
among others its re-organization and new set of officers. COMELEC denied the request for re-
examination. NAMFREL did not question the ruling.
Instead of direct reaction to NAMFREL, petitioner Concepcion filed this petition for certiorari
raising issues with respect to Resolution No. 7798.
Issue: Whether or not the resolution is valid?
Ruling:
The first defect lies in the petitioner’s personality to file a petition for certiorari to address the
adjudicatory resolution of the COMELEC in which he was not a party to, and where the direct
party, NAMFREL, does not even question the assailed resolution.
Section 1, Rule 65 essentially provides that a person aggrieved by any act of a tribunal, board or
officer exercising judicial or quasi-judicial functions rendered without or in excess of jurisdiction
or with grave abuse of discretion amounting to lack or excess of jurisdiction may file a petition
for certiorari.
Page 66 of 96
An aggrieved party under Section 1, Rule 65 is one who was a party to the original proceedings
that gave rise to the original action for certiorari under Rule 65.
In Tang v. Court of Appeals where we said:
Although Section 1 of Rule 65 provides that the special civil action of certiorari may be
availed of by a "person aggrieved" by the orders or decisions of a tribunal, the term
"person aggrieved" is not to be construed to mean that any person who feels injured
by the lower court’s order or decision can question the said court’s disposition via
certiorari. To sanction a contrary interpretation would open the floodgates to
numerous and endless litigations which would undeniably lead to the clogging of court
dockets and, more importantly, the harassment of the party who prevailed in the
lower court.
In a situation wherein the order or decision being questioned underwent adversarial
proceedings before a trial court, the "person aggrieved" referred to under Section 1 of
Rule 65 who can avail of the special civil action of certiorari pertains to one who was a
party in the proceedings before the lower court. The correctness of this interpretation
can be gleaned from the fact that a special civil action for certiorari may be dismissed
motu proprio if the party elevating the case failed to file a motion for reconsideration
of the questioned order or decision before the lower court. Obviously, only one who
was a party in the case before the lower court can file a motion for reconsideration
since a stranger to the litigation would not have the legal standing to interfere in the
orders or decisions of the said court. In relation to this, if a non-party in the
proceedings before the lower court has no standing to file a motion for
reconsideration, logic would lead us to the conclusion that he would likewise have no
standing to question the said order or decision before the appellate court via
certiorari. (emphasis supplied)
In Development Bank of the Philippines v. Commission on Audit - a case that involves a certiorari
petition, under Rule 64 in relation with Rule 65, of a ruling of the Commission on Audit (a
constitutional commission like COMELEC):
The novel theory advanced by the OSG would necessarily require persons not parties
to the present case – the DBP employees who are members of the Plan or the trustees
of the Fund – to avail of certiorari under Rule 65. The petition for certiorari under Rule
65, however, is not available to any person who feels injured by the decision of a
tribunal, board or officer exercising judicial or quasi-judicial functions. The "person
aggrieved" under Section 1 of Rule 65 who can avail of the special civil action of
certiorari pertains only to one who was a party in the proceedings before the court a
quo, or in this case, before the COA. To hold otherwise would open the courts to
numerous and endless litigations. Since DBP was the sole party in the proceedings
before the COA, DBP is the proper party to avail of the remedy of certiorari.
The real party in interest who stands to benefit or suffer from the judgment in the suit must
prosecute or defend an action. We have held that "interest" means material interest, an interest
in issue that the decision will affect, as distinguished from mere interest in the question
involved, or a mere incidental interest.
INDISPENSIBLE PARTY:
Golangco v. Fung
FACTS:
In a Criminal Case a prosecution for libel initiated by the petitioner as the complainant against
the respondent, was commenced in 1995. Allegedly, the respondent had issued an office
memorandum dated May 10, 1995 maliciously imputing against the petitioner the commission
of bribery and had sent copies of the memorandum to the petitioner’s superiors in the Philippine
Overseas Employment Administration (POEA) and to other public officers and personalities not
connected with the POEA, causing damage and prejudice to the petitioner.
After almost 6 years, the Prosecution had presented only two witnesses in Criminal Case No. 95-
145703. On February 16, 2001, the Prosecution requested that a subpoena ad testificandum be
issued to and served on Atty. Oscar Ramos, Resident Ombudsman of the POEA, to compel him to
testify in the criminal case on February 20, 2001. The RTC did not granted the request. The same
was affirmed by the Court of Appeals.
ISSUE: Whether the Court of Appeals correctly ruled on the petition for certiorari of the
petitioner.
RULING:
The petitioner did not join the People of the Philippines as a party in his action for certiorari in
the Court of Appeals. He thereby ignored that the People of the Philippines were indispensable
parties due to his objective being to set aside the trial court’s order dated May 23, 2001 that
concerned the public aspect of Criminal Case No. 95-145703. The omission was fatal and already
enough cause for the summary rejection of his petition for certiorari.
We find that the trial judge did not act capriciously, arbitrarily or whimsically in issuing the
assailed order. Thus, the Court of Appeals properly dismissed the petition for certiorari. The
petitioner now needs to be reminded that certiorari is an extraordinary remedy to correct a
grave abuse of discretion amounting to lack or excess of jurisdiction when an appeal, or any
plain, speedy and adequate remedy in the ordinary course of law is not available. In this regard,
grave abuse of discretion implies a capricious and whimsical exercise of judgment that is
equivalent to lack of jurisdiction whenever the power is exercised in an arbitrary or despotic
manner by reason of passion, prejudice or personal aversion amounting to an evasion of a
positive duty or to a virtual refusal to perform the duty enjoined, or to act at all in contemplation
of law.
Settled rule that certiorari does not lie to review an interlocutory order, but only a final
judgment or order that terminates the proceedings. Certiorari will be refused where there has
been no final judgment or order and the proceeding for which the writ is sought is still pending
and undetermined in the lower court.
As long as the trial court acted within its jurisdiction, its alleged error committed in the exercise
of its jurisdiction amounted to nothing more than an error of judgment that was reviewable by a
timely appeal, not by a special civil action of certiorari.
DOJ RULINGS:
Page 67 of 96

Alcaraz v. Gonzalez
FACTS:
August 11, 2000, 61-year-old Ramon C. Gonzalez was driving his Nissan Cefiro car with plate no.
UPW-298 along the right outermost lane of the South-Luzon Expressway. He was on his way to
Makati City and had just passed the Sucat toll gate. Atty. Arnel C. Alcaraz, a Customs Collector of
the Bureau of Customs, Batangas Port, was driving his Nissan Infiniti car with plate no. CNH-338.
He was in the middle lane of the South-Luzon Expressway, between the Sucat and Bicutan
Interchange, on his way to Manila from Batangas City, armed with a .38 caliber pistol and had
with him Mission Order No. 699-2000, to expire on August 21, 2000.
Alcaraz intended to use the Skyway, he signaled, and proceeded to the right-most lane which
was reserved for vehicles taking the Skyway. Gonzalez, who was on the right-most lane, was
forced to swerve his car to the right to avoid colliding with Alcaraz's vehicle and nearly hit the
concrete island. Gonzalez chased after Alcaraz, opened his windows and shouted at Alcaraz,
demanding to know why the latter suddenly cut into his lane. Alcaraz retorted that he had
signaled that he was swerving to the right. Gonzalez reproved Alcaraz and drove on. Upon
nearing an island, Alcaraz raised his pistol towards Gonzalez and fired twice: the first bullet hit
the right front window of the vehicle and exited at the left rear door; the second bullet hit the
left rear window of Gonzalez's car. Alcaraz hurriedly drove away from the scene, but was
intercepted by the PNCC guards at the Skyway toll gate. The guards confiscated from Alcaraz the
.38 pistol with 7 live bullets and 3 empty shells.
Gonzalez reported the matter to the Parañaque City Police Station where he gave a statement to
the police investigator, and filed a criminal complaint for attempted homicide against
Alcaraz.The PNP Crime Laboratory examined Gonzalez's car to determine the trajectory of the
bullets. Report No. PI-46-2000 was prepared in connection with the investigation:
CONCLUSION:
The entrance bullet holes and the exit bullet hole were caused by bullets fired from right, front
side of the vehicle. Alfredo Tan Buraga, Officer-in-Charge of the Parañaque Police Station, filed a
criminal complaint for attempted homicide against Alcaraz in the Office of the City Prosecutor of
Parañaque City.On motion of Alcaraz, the MeTC ordered the City Prosecutor to conduct a
preliminary investigation.
Alcaraz claimed that he did not aim his gun at Gonzalez; he had no intention of hitting Gonzalez,
and only wanted to scare him. At the police station, Gonzalez identified himself as the brother of
Congressman Jose Mari Gonzalez. Gonzalez insisted that Alcaraz attempted to kill him. He
denied having thrown coins at Alcaraz and that he had a gun at the time. Gonzalez pointed out
that Alcaraz's allegation that he was defending himself when he fired his gun was in effect an
admission of intent to kill. Alcaraz filed a motion for reconsideration, and when it was denied,
filed a petition for review with the City Prosecutor's Office, Department of Justice.
Secretary of Justice Hernando Perez issued a Resolution granting the petition and ordering the
City Prosecutor to withdraw the Information.
Gonzalez failed to prove beyond reasonable that Alcaraz had intended to kill him, thus:
Evidence shows that respondent was provoked by complainant's acts of repeatedly hurling, not
only invectives like "putang ina mo" with a dirty finger sign, but also the throwing of coins that
hit respondent's face and his lady passenger. The natural consequence was for respondent to
retaliate as what had transpired in the instant case. There is no dispute that respondent fired his
gun. But as to whether or not he had the intention to kill complainant is a different issue.
Respondent's argument that he had no intention of hitting complainant and that his objective
was only to scare him finds merit.
The element of intent to kill not having been satisfactorily established, and considering that
complainant was unscathed, a finding of probable cause against respondent for attempted
homicide is difficult to sustain.
Gonzalez filed a motion for reconsideration, which the Undersecretary of Justice denied on
January 29, 2003.Gonzalez then filed a petition for review under Rule 43 of the 1997 Rules of
Civil Procedure before the CA, seeking the reversal of the Justice Secretary's Resolution.
He claimed that the Secretary acted beyond his authority in finding no probable cause to charge
Alcaraz with attempted homicide and for ordering the City Prosecutor to withdraw the
Information. He insisted that by invoking self-defense, Alcaraz thereby admitted his intention to
kill him (Gonzalez). He claimed that Alcaraz's claim of self-defense should be ventilated during
trial on the merits.
Alcaraz averred that the CA had no appellate jurisdiction over the petition, and that Gonzalez
had no legal standing to file the petition. He insisted that the remedy from an adverse resolution
of the Justice Secretary is to file a petition for certiorari under Rule 65 of the Rules of Court, as
amended, grounded on grave abuse of discretion amounting to excess of jurisdiction, not one
under Rule 43 of said Rule. He averred that the Justice Secretary is not a quasi-judicial officer
under Rule 43 whose resolutions may thus be reviewed by the CA. Alcaraz likewise pointed out
that the CA was without power to substitute its own judgment for that of the Justice Secretary
regarding the existence or non-existence of probable cause to charge him with attempted
homicide.
The CA ruled that the petition for review under Rule 43 of the Rules of Court, as amended, was
meritorious. The appellate court declared that, based on the evidence on record, there was
probable cause to file an Information for attempted homicide against Alcaraz. However, the CA
failed to resolve the issue of whether it had appellate jurisdiction over the petition under Rule 43
of the Rules of Court, as amended.
On July 19, 2004, the CA resolved to deny Alcaraz's motion, holding that his grounds and
objections had already been considered and passed upon by it in its decision.
OSG avers that the CA erred in granting the petition of respondent, since the proper remedy
from an adverse resolution issued by the Secretary of Justice is to file a petition for certiorari
under Ruler 65 of the Rules of Court, not a petition under Rule 43.
Petitioner avers that conformably with the resolution of the Secretary of Justice, the City
Prosecutor had filed a motion to withdraw the information in the MeTC, and the court had
granted the motion per its Order dated March 7, 2003. He points out that respondent had not
appealed the said order of the trial court.
Page 68 of 96
ISSUE: Whether the petition for review under Rule 43 of the Rules of Court was the proper
remedy of respondent?
HELD: We agree with petitioner's contention that respondent resorted to an improper remedy
when he filed a petition for review under Rule 43 of the Rules of Court, instead of filing a petition
for certiorari under Rule 65. The determination of probable cause during the preliminary
investigation, the executive branch of government has full discretionary authority. The decision
whether or not to dismiss the criminal complaint against the private respondent is necessarily
dependent on the sound discretion of the Investigating Prosecutor and ultimately, that of the
Secretary of Justice. Courts are not empowered to substitute their own judgment for that of the
executive branch.
The resolution of the Investigating Prosecutor is subject to appeal to the Justice Secretary who,
under the Revised Administrative Code, exercises the power of control and supervision over said
Investigating Prosecutor; and who may affirm, nullify, reverse, or modify the ruling of such
prosecutor. While the CA may review the resolution of the Justice Secretary, it may do so only in
a petition for certiorari under Rule 65 of the Rules of Court, solely on the ground that the
Secretary of Justice committed grave abuse of his discretion amounting to excess or lack of
jurisdiction.
The resolution of the Justice Secretary affirming, modifying or reversing the resolution of the
Investigating Prosecutor is final. Under the 1993 Revised Rules on Appeals (now the 2000
National Prosecution Service Rules on Appeals), resolutions in preliminary investigations or
reinvestigations from the Justice Secretary's resolution, except the aggrieved party, has no
more remedy of appeal to file a motion for reconsideration of the said resolution of such
motion if it is denied by the said Secretary. The remedy of the aggrieved party is to file a
petition for certiorari under Rule 65 of the Rules of Court since there is no more appeal or
other remedy available in the ordinary course of law.
Respondent filed a petition for review under Rule 43 of the Rules of Court, assailing the
resolutions of the Justice Secretary. Instead of dismissing the petition, however, the CA gave due
course to it and thereafter granted the petition, on its finding that the Justice Secretary erred in
reversing the resolution of the Investigating Prosecutor which found probable cause against
petitioner for attempted homicide. Patently, the ruling of the CA is incorrect. The petition is
GRANTED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 75589
are NULLIFIED.
RULE 66 - Quo Warranto
 literally means “by what authority”
 Purpose : 1. To determine the rights of a person to the use or exercise of a franchise or
office
2. To oust the holder from its enjoyment
 Party to commence action (Sec 1 – 5)
I. Government (through Solicitor General or public prosecutor
1. Grounds - action for usurpation of public office, position or franchise against :
a) A person who usurps, intrudes into, or unlawfully holds or exercise a public
office, position or franchise;
b) A public officer who does or suffers an act which, by provision of law,
constitutes a groupd for the forfeiture of his office; or
c) An association which acts as a corporation within the Philippines without
being legally incorporated or without lawful authority so to act
2. Time to file : a.. When directed by the President of the Philippines
b. Upon complaint of individual(Sec 3 and 4)
 With permission of the court in which action is to be commenced;
 Officer must require 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
 Court shall direct that notice be given to respondent that he may be heard in
opposition thereto
 If permission granted, court shall issue order ; copies to be served on all interested
parties and petition filed within period ordered by court
c. When he has good reason to believe that any of the grounds can be established
by proof
II. Individual (Private persons) in his own name (Sec 5)
 Ground : such person claims to be entitled to a public office or position usurped or
unlawfully held or exercised by another
 May maintain action without intervention of the Solicitor General and without
need for any leave of court
 Must show he has a clear right to the office allegedly held by another
 Procedure
1. Verified petition shall contain (Sec 6) :
a. Name of the person entitled thereto (all persons who claim to be entitled to the
public office, position or francise may be made parties and their respective rights
thereto determined in the same action)
b. Averment of his right to the same
c. That the respondent is unlawfully in possession thereof
2. Venue (Sec 7)
a. Supreme Court; or,
b. Court of Appeals
c. Regional Trial Court :
c.1. if commenced by individual : where respondent or any of the respondents
reside
c.2. if commenced by Sol Gen : RTC in the City of Manila
3. Period for Pleading (Sec 8)
 Court may reduce the period for filing pleadings to secure the most expeditious
determination of the matter
 Such action may take precedence over any civil matter pending in the court
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4. Judgment (Sec 9, 10, 12)
If responding found guilty :
 Respondent to be ousted and excluded therefrom
 Petitioner or relator may recover his costs
 Judgment rendered may determine respective rights in and to the public office,
position or franchise of all parties
If judgment renders complainant entitled to public office
 Takes oath of office and execute any official bond required by law
 Take upon himself the execution of office
 May demand of respondent all books and papers in his custody or control
** if respondent refuses or neglects to deliver, he may be punished for contempt
 May bring action for damages sustained by reason of the usurpation
Court may render judgment for costs either against :
a. petitioner ; or,
b. respondent; or,
c. the persons claiming to be a corporation or may apportion the costs
5. Prescription of Action (Sec 11)
 Action to ouster must be commenced within one (1) year after the cause of such
ouster, or right of the petitioner to hold office arose
 Action for damages must be commenced within one year after the entry of
judgment establishing the petitioner’s right to the office
 Quo Warranto under the Omnibus Election Code
 When tribunal declares candidate-elect  Court has to declare who the person
as ineligible, he will be unseated but entitled to the office is if he is the
second placer will not be declared as petitioner
duly elected
 Petition may be brought only against a de facto corporation not a de jure corporation
because the latter was organized in full compliance with the laws hence, there is no reason
to attach its existence and its exercise of corporate powers
1. Topacio v. Ong, GR No. 179895, December 18, 2008
FACTS:
 Ferdinand Topacio (petitioner) via the present petition for certiorari and prohibition seeks, in
the main, to prevent Justice Gregory Ong (Ong) from further exercising the powers, duties
and responsibilities of a Sandiganbayan Associate Justice.
 It will be recalled that in Kilosbayan Foundation v. Ermita, the Court enjoined Ong "from
accepting an appointment to the position of Associate Justice of the Supreme Court or
assuming the position and discharging the functions of that office, until he shall have
successfully completed all necessary steps, through the appropriate adversarial proceedings
in court, to show that he is a natural-born Filipino citizen and correct the records of his birth
and citizenship. Ong subsequently complied with the order by filing a petition for correction
of his birth certificate.
 Meanwhile, petitioner, by verified Letter-Request/Complaint implored respondent Office of
the Solicitor General (OSG) to initiate post-haste a quo warranto proceeding against Ong in
the latter’s capacity as an incumbent Associate Justice of the Sandiganbayan.

 May be instituted by any voter contesting the election of any member of Congress,  The OSG informed petitioner that it "cannot favorably act on [his] request for the filing of a
regional, provincial or city officer within 10 days after proclamation of the results of the quo warranto petition until the [RTC] case shall have been terminated with finality."
election Petitioner assails this position of the OSG as being tainted with grave abuse of discretion,
 Grounds : a) ineligibility to the position or b) disloyalty to the Republic of the Phils aside from Ong’s continuous discharge of judicial functions. Hence, this petition.
 If brought against municipal official, must be brought in the appropriate Regional Trial
Court  Subsequently, Ong informs that the RTC, by Decision of October 24, 2007, already granted
 If against any barangay official, must be brought before Metropolitan Trial Court, his petition and recognized him as a natural-born citizen. The Decision having, to him,
Municipal Trial Court or Municipal Circuit Trial Court become final, he caused the corresponding annotation thereof on his Certificate of Birth.
Invoking the curative provisions of the 1987 Constitution, Ong explains that his status as a
 Quo Warranto in Elective Office vs Appointive Office natural-born citizen inheres from birth and the legal effect of such recognition retroacts to
the time of his birth.
Elective Office Appointive Office
 Governed by election laws  Governed by Rules of Court ISSUE:
 Issue: eligibility of person elected  Issue : legality of the appointment
 To be filed within 10 days after the  To be filed within 1 year from the time the Whether or not the OSG committed grave abuse of discretion in deferring the filing of a petition
procla-mation of the election results cause of ouster for quo warranto,
 Brought before the COMELEC, the RTC or  Brought before SC, CA or RTC
the MTC, as the case may be HELD:
 Petitioner may be any voter even if he is  Petitioner is the person entitled to the
not entitled to the office office The Court rules in the negative.
Page 70 of 96
Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction, or, in other words, where the power is exercised in an arbitrary
or despotic manner by reason of passion or personal hostility, and it must be so patent and gross
as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or
to act at all in contemplation of law.
The Court appreciates no abuse of discretion, much less, a grave one, on the part of the OSG in
deferring action on the filing of a quo warranto case until after the RTC case has been terminated
with finality. A decision is not deemed tainted with grave abuse of discretion simply because the
affected party disagrees with it.
The Solicitor General is the counsel of the government, its agencies and instrumentalities, and its
officials or agents. In the discharge of its task, the Solicitor General must see to it that the best
interest of the government is upheld within the limits set by law
--------------------------------------------------
While denominated as a petition for certiorari and prohibition, the petition partakes of the
nature of a quo warranto proceeding with respect to Ong, for it effectively seeks to declare null
and void his appointment as an Associate Justice of the Sandiganbayan for being unconstitutional.
While the petition professes to be one for certiorari and prohibition, petitioner even adverts to a
"quo warranto" aspect of the petition.
be, or by any person claiming to be entitled to the public office or position usurped or unlawfully
held or exercised by another.
Nothing is more settled than the principle, which goes back to the 1905 case of Acosta v. Flor,
reiterated in the recent 2008 case of Feliciano v. Villasin, that for a quo warranto petition to be
successful, the private person suing must show a clear right to the contested office. In fact, not
even a mere preferential right to be appointed thereto can lend a modicum of legal ground to
proceed with the action.
2. Mendoza v. Allas, G.R. No. 131977, Feb. 4, 1999
Facts:
In September 1994, petitioner received a letter from Deputy Customs Commissioner Cesar Z.
Dario, informing him of his termination from the Bureau of Customs, in view of respondent Allas'
appointment as Director III by President Fidel V. Ramos. The pertinent portion of the letter
reads:bb
"Effective March 4, 1994, Mr. Ray Allas was appointed Director III by President Fidel V. Ramos and
as a consequence, [petitioner's] services were terminated without prejudice to [his] claim for all
government benefits due [him]."

Being a collateral attack on a public officer’s title, the present petition for certiorari and
Attached to the letter was the appointment of respondent Ray Allas as "Director III, CIIS, Bureau
prohibition must be dismissed.
of Customs, vice Pedro Mendoza."

The title to a public office may not be contested except directly, by quo warranto proceedings;
Petitioner wrote the Customs Commissioner demanding his reinstatement with full back wages
and it cannot be assailed collaterally, even through mandamus or a motion to annul or set aside
and without loss of seniority rights. No reply was made.
order. In Nacionalista Party v. De Vera, the Court ruled that prohibition does not lie to inquire into
the validity of the appointment of a public officer.
On December 2, 1994, petitioner filed a petition for quo warranto against respondent Allas before
the Regional Trial Court, Paranaque, Branch 258.[i][3] The case was tried and on September 11,
x x x [T]he writ of prohibition, even when directed against persons acting as judges or other
1995, a decision was rendered granting the petition. The court found that petitioner was illegally
judicial officers, cannot be treated as a substitute for quo warranto or be rightfully called
terminated from office without due process of law and in violation of his security of tenure, and
upon to perform any of the functions of the writ. If there is a court, judge or officer de facto,
that as he was deemed not to have vacated his office, the appointment of respondent Allas to the
the title to the office and the right to act cannot be questioned by prohibition. If an intruder
same office was void ab initio. The court ordered the ouster of respondent Allas from the position
takes possession of a judicial office, the person dispossessed cannot obtain relief through a
of Director III, and at the same time directed the reinstatement of petitioner to the same position
writ of prohibition commanding the alleged intruder to cease from performing judicial acts,
with payment of full back salaries and other benefits appurtenant thereto.
since in its very nature prohibition is an improper remedy by which to determine the title to
an office.
On May 9, 1996, petitioner filed with the court a quo a Motion for Execution of its decision. On
July 24, 1996, the court denied the motion on the ground that the contested position vacated by
Even if the Court treats the case as one for quo warranto, the petition is, just the same,
respondent Allas was now being occupied by respondent Godofredo Olores who was not a party
dismissible.
to the quo warranto petition.[ii][5]

A quo warranto proceeding is the proper legal remedy to determine the right or title to the
Petitioner filed a special civil action for certiorari and mandamus with the Court of Appeals
contested public office and to oust the holder from its enjoyment. It is brought against the
questioning the order of the trial court.[iii][6] On November 27, 1997, the Court of Appeals
person who is alleged to have usurped, intruded into, or unlawfully held or exercised the public
dismissed the petition.[iv][7] Hence, this recourse.
office, and may be commenced by the Solicitor General or a public prosecutor, as the case may
Page 71 of 96
Petitioner claims that:
"The Court of Appeals grossly erred in holding that a writ of execution may no longer be issued,
considering that respondent Olores who was not a party to the case now occupies the subject
position."
Issue:
Whether or not Mendoza validly ousted from his office amounting to illegally dismissed?
Held:
Quo warranto is a demand made by the state upon some individual or corporation to show by
what right they exercise some franchise or privilege appertaining to the state which, according to
the Constitution and laws of the land, they cannot legally exercise except by virtue of a grant or
authority from the state. In other words, a petition for quo warranto is a proceeding to determine
the right of a person to the use or exercise of a franchise or office and to oust the holder from its
enjoyment, if his claim is not well-founded, or if he has forfeited his right to enjoy the privilege.
The action may be commenced for the Government by the Solicitor General or the fisca against
individuals who usurp a public office, against a public officer whose acts constitute a ground for
the forfeiture of his office, and against an association which acts as a corporation without being
legally incorporated.The action may also be instituted by an individual in his own name who
claims to be entitled to the public office or position usurped or unlawfully held or exercised by
another.
Where the action is filed by a private person, he must prove that he is entitled to the
controverted position, otherwise respondent has a right to the undisturbed possession of the
office.[x][14] If the court finds for the respondent, the judgment should simply state that the
respondent is entitled to the office.[xi][15] If, however, the court finds for the petitioner and
declares the respondent guilty of usurping, intruding into, or unlawfully holding or exercising the
office, judgment may be rendered as follows:
"Sec. 10. Judgment where usurpation found.-- When the defendant is found guilty of usurping,
intruding into, or unlawfully holding or exercising an office, position, right, privilege, or franchise,
judgment shall be rendered that such defendant be ousted and altogether excluded therefrom,
and that the plaintiff or relator, as the case may be, recover his costs. Such further judgment may
be rendered determining the respective rights in and to the office, position, right, privilege, or
franchise of all the parties to the action as justice requires."
If it is found that the respondent or defendant is usurping or intruding into the office, or
unlawfully holding the same, the court may order:
(1) The ouster and exclusion of the defendant from office;
(2) The recovery of costs by plaintiff or relator;
(3) The determination of the respective rights in and to the office, position, right, privilege or
franchise of all the parties to the action as justice requires.
The character of the judgment to be rendered in quo warranto rests to some extent in the
discretion of the court and on the relief sought
Ordinarily, a judgment against a public officer in regard to a public right binds his successor in
office. This rule, however, is not applicable in quo warranto cases.[xiii][21] A judgment in quo
warranto does not bind the respondent's successor in office, even though such successor may
trace his title to the same source. This follows from the nature of the writ of quo warranto itself.
It is never directed to an officer as such, but always against the person-- to determine whether he
is constitutionally and legally authorized to perform any act in, or exercise any function of the
office to which he lays claim.[xiv][22] In the case at bar, the petition for quo warranto was filed by
petitioner solely against respondent Allas. What was threshed out before the trial court was the
qualification and right of petitioner to the contested position as against respondent Ray Allas, not
against Godofredo Olores. The Court of Appeals did not err in denying execution of the trial
court's decision.
3. Damasen v. Tumamao, G.R. No. 173165, Feb. 17, 2010
Facts:
On December 2, 2004, Nelia Tumamao, the Vice-Mayor of San Isidro, Isabela, died.[1][3] As a
result, a permanent vacancy was created in the Office of the Vice-Mayor.
Pursuant to Sec. 44 of Republic Act (RA) No. 7160,[2][4] Ligaya C. Alonzo (Alonzo) was elevated
to the position of Vice-Mayor, she being the highest-ranking member of the Sangguniang Bayan,
that is, the one who garnered the highest number of votes for that office.[3][5] As a result, a
permanent vacancy was created in the Sangguniang Bayan.
To fill up the ensuing vacancy in the Sangguniang Bayan, San Isidro Mayor Abraham T. Lim (Mayor
Lim) recommended to Governor Maria Gracia Cielo M. Padaca (Governor Padaca), the
appointment of respondent Oscar G. Tumamao (Tumamao), a member of the Laban ng
Demokratikong Pilipino (LDP), the same political party to which Alonzo belonged On April 15,
2005, Tumamao took his oath as a member of the Sangguninang Bayan before Mayor Lim.[4][7]
On April 26, 2005 and May 3, 2006, Tumamao attended the regular sessions of the Sangguniang
Bayan.[5][8]
On May 5, 2005, petitioner Atty. Lucky Damasen (Damasen) became a member of the LDP after
taking his oath of affiliation before the LDP Provincial Chairman, Ms. Ana Benita Balauag
(Provincial Chairman Balauag).[6][9] On even date, Damasen was able to secure from LDP
Provincial Chairman Balauag a letter of nomination addressed to Governor Padaca for his
appointment to the Sangguniang Bayan.[7][10] On May 12, 2005, Damasen was appointed as
Sangguniang Bayan member by Governor Padaca.[8][11]
Page 72 of 96
On May 16, 2005, Damasen took his oath as member of the Sangguniang Bayan before Governor
Padaca.[9][12]
On May 17, 2005, Damasen attended the Sangguniang Bayan session, but with Tumamao present
thereat, the former was not duly recognized.[10][13] Hence, in the afternoon of the same day,
Damasen filed with the Regional Trial Court of Santiago City (RTC) a Petition for Quo Warranto
with Prayer for the Issuance of a Writ of Preliminary Injunction,[11][14] seeking to be declared the
rightful member of the Sangguniang Bayan, claiming that he had been nominated by LDP
Provincial Chairman Balauag and had been appointed thereto by Governor Padaca.[12][15] The
case was docketed as Special Civil Action Case No. 0234.
The RTC issued a Temporary Restraining Order effective for 72 hours. Thereafter, the RTC issued
an order extending the Temporary Restraining order to 17 days.
Later, Tumamao presented Provincial Chairman Balauag who affirmed the contents of her letter
revoking the nomination of Damasen.[13][18]
On August 4, 2005, the RTC rendered a Decision[14][19] ruling in favor of Damasen, The RTC
based its decision on Sec. 45 (b) of RA 7160,[15][21] which provides for the rule on succession in
cases of permanent vacancies in the Sangguninan. The RTC ruled that the evidence submitted by
Damasen proved that the requirements to be able to qualify for the position was fully complied
with. Tumamao appealed the RTC Decision to the CA.
On June 14, 2006, the CA rendered a Decision reversing the appealed Decision, While Atty.
Damasen might have been appointed by Governor Padaca, this appointment must fly in the face
of the categorical and unbending sine qua non requirements of the statute.
Indeed, Atty. Damasen was nominated simply by Ms. Balauag, the Provincial Chairman of the
LDP, who obviously is not the highest official of this political party. It cannot escape notice that
the quoted provision particularizes: “highest official of the political party concerned” without any
additional qualifying or restrictive words.
Issue :
Whether or not Atty Damasen , has the right to have the office as Sanguniang Bayan?
Held: Petition dismissed. Affirmed the reversal of the CA ruling.
Section 45. Permanent Vacancies in the Sanggunian. –
Xxx Xxxx
(b) Except for the Sangguniang Barangay, only the nominee of the political party under which the
sanggunian member concerned had been elected and whose elevation to the position next higher
in rank created the last vacancy in the sanggunian shall be appointed in the manner hereinabove
provided. The appointee shall come from the same political party as that of the sanggunian
member who caused the vacancy and shall serve the unexpired term of the vacant office. In the
appointment herein mentioned, a nomination and a certificate of membership of the appointee
from the highest official of the political party concerned are conditions sine qua non, and any
appointment without such nomination and certification shall be null and void ab initio and shall
be a ground for administrative action against the official responsible therefore.[16][30]
As can be gleaned from the above provision, the law provides for conditions for the rule of
succession to apply: First, the appointee shall come from the same political party as that of the
Sanggunian member who caused the vacancy. Second, the appointee must have a nomination
and a Certificate of Membership from the highest official of the political party concerned.
Thus, this Court cannot countenance Damasen’s insistence in clinging to an appointment when
he is in fact not a bona fide member of the LDP. While the revocation of the nomination given to
Damasen came after the fact of his appointment, this Court cannot rule in his favor, because the
very first requirement of Sec. 45 (b) is that the appointee must come from the political party as
that of the Sanggunian member who caused the vacancy. To stress, Damasen is not a bona fide
member of the LDP.
In addition, appointing Damasen would not serve the will of the electorate. He himself admitts
that he was previously a member of the Lakas-CMD, and that he ran for the position of Mayor
under the said party on the May 2004 Elections. Likewise, he did not resign from the said party
when he joined the LDP, and even admitted that his joining the LDP was not because of party
ideals, but because he just wanted to.[17][46] How can the will of the electorate be best served,
given the foregoing admissions of Damasen? If this Court were to grant herein petition, it would
effectively diminish the party representation of the LDP in the Sanggunian, as Damasen would still
be considered a member of the Lakas-CMD, not having resigned therefrom, a scenario that
defeats the purpose of the law, and that ultimately runs contrary the ratio of Navarro.
Lastly, the records of the case reveal that Tumamao has the nomination[18][47] of Senator
Edgardo J. Angara, the Party Chairman and, therefore, the highest official of the LDP. In addition,
he is a member in good standing of the LDP.
4. Calleja v. Panday, G.R. No. 168696, Feb. 28, 2006
Facts:
On May 16, 2005, respondents filed a petition with the Regional Trial Court of San Jose,
Camarines Sur for quo warranto with Damages and Prayer for Mandatory and Prohibitory
Injunction, Damages and Issuance of Temporary Restraining Order against herein petitioners.
Respondents alleged that from 1985 up to the filing of the petition with the trial court, they had
been members of the board of directors and officers of St. John Hospital, Incorporated, but
sometime in May 2005, petitioners, who are also among the incorporators and stockholders of
said corporation, forcibly and with the aid of armed men usurped the powers which supposedly
belonged to Respondents.
Page 73 of 96
On May 24, 2005, RTC-Br. 58 issued an Order transferring the case to the Regional Trial Court in
Naga City. According to RTC-Br. 58, since the verified petition showed petitioners therein (herein
respondents) to be residents of Naga Citybvg, then pursuant to Section 7, Rule 66 of the 1997
Rules of Civil Procedure, the action for quo warranto should be brought in the Regional Trial Court
exercising jurisdiction over the territorial area where the respondents or any of the respondents
resides. However, the Executive Judge of RTC, Naga City refused to receive the case folder of the
subject case for quo warranto, stating that improper venue is not a ground for transferring a quo
warranto case to another administrative jurisdiction.
The RTC-Br. 58 then proceeded to issue and serve summons on herein petitioners (respondents
below). Petitioner Tabora filed his Answer dated June 8, 2005, raising therein the affirmative
defenses of (1) improper venue, (2) lack of jurisdiction, and (3) wrong remedy of quo warranto.
Thereafter, the other petitioners also filed their Answer, also raising the same affirmative
defenses.
On March 13, 2001, A.M. No. 01-2-04 SC was promulgated and took effect on April 1, 2001.
From the foregoing discussion and historical background relative to the venue and jurisdiction to
try and decide cases originally enumerated in Section 5 of PD 902-A and later under Section 5.2 of
RA 8799, it is evident that the clear intent of the circular is to bestow the juridiction "to try and
decide these cases to the "special courts" created under A.M. No. 00-11-03-SC. . . .
Under Section 8, of the Interim Rules, [a] Motion to Dismiss is among the prohibited pleadings. On
the otherhand, the Supreme Court under Administrative Order 8-01 has directed the transfer
from the regular courts to the branches of the Regional Trial Courts specially designated to try and
decide intra-corporate dispute.
Petitioners no longer moved for reconsideration of the foregoing Order and, instead, immediately
elevated the case to this Court via a petition for review on certiorari under Rule 45 of the 1997
Rules of Civil Procedure.
Issue: Whether or not the RTC of Co-Equal court having concurrent jurisdiction and whether or
not the following Circular AM No 00-11-03-SC will be applied in this cases?
Held: Petition Granted.
Note, further, that respondents’ petition for quo warranto was filed as late as 2005. A.M. No. 03-
03-03-SC took effect as early as July 1, 2003 and it was clearly provided therein that such petitions
shall be filed in the Office of the Clerk of Court in the official station of the designated Special
Commercial Court. Since the official station of the designated Special Commercial Court for
Camarines Sur is the Regional Trial Court in Naga City, respondents should have filed their petition
with said court. A.M. No. 00-11-03-SC having been in effect for four years and A.M. No. 03-03-03-
SC having been in effect for almost two years by the time respondents filed their petition, there is
no cogent reason why respondents were not aware of the appropriate court where their petition
should be filed.
The ratiocination of RTC-Br.58 that Administrative Circular No. 08-2001 authorized said trial court
to order the transfer of respondents’ petition to the Regional Trial Court of Naga City is specious
because as of the time of filing of the petition, A.M. No. 03-03-03-SC, which clearly stated that
cases formerly cognizable by the SEC should be filed with the Office of the Clerk of Court in the
official station of the designated Special Commercial Court, had been in effect for almost two
years. Thus, the filing of the petition with the Regional Trial Court of San Jose, Camarines Sur,
which had no jurisdiction over those kinds of actions, was clearly erroneous.
[2][4] Otherwise known as the Local Government Code of 1991. Section 44 provides:
Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice-
Mayor. - If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor
or vice-mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in
the offices of the governor, vice-governor, mayor, or vice-mayor, the highest ranking sanggunian
member or, in case of his permanent inability, the second highest ranking sanggunian member,
shall become the governor, vice-governor, mayor or vice-mayor, as the case may be. Subsequent
vacancies in the said office shall be filled automatically by the other sanggunian members
according to their ranking as defined herein.
(a) If a permanent vacancy occurs in the office of the punong barangay, the highest ranking
sanggunian barangay member or, in case of his permanent inability, the second highest ranking
sanggunian member, shall become the punong barangay.
(b) A tie between or among the highest ranking sanggunian members shall be resolved by the
drawing of lots.
(c) The successors as defined herein shall serve only the unexpired terms of their predecessors.
For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a
higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office,
voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his
office.
For purposes of succession as provided in the Chapter, ranking in the sanggunian shall be
determined on the basis of the proportion of votes obtained by each winning candidate to the
total number of registered voters in each district in the immediately preceding local election.
5. Madrigal v. Lecaroz, G.R. No. L-46218, Oct. 23, 1990
Facts:
Joventino Madrigal's position as a permanent construction capataz in the office of the Provincial
Engineer was abolished. The abolition was allegedly due to the poor financial condition of the
province and it appearing that his position was not essential. The Civil Service Commission
declared the removal of Madrigal from the service illegal.
Page 74 of 96
Madrigal filed a petition before the Court of First Instance (now Regional Trial Court) of
Marinduque against public respondents for mandamus and damages. The trial court issued an
order dismissing the petition on the ground that Madrigal's cause of action was barred by laches
because herein petitioner was separated from the service on November 25, 1971, and it was only
on December 15, 1975, or FOUR (4) YEARS and TWENTY (20) DAYS after, that he filed this case for
"Mandamus and Damages" with the principal aim of causing his reinstatement to the public
position from where his service was terminated.
Issue:
Whether or not the petitioner’s cause of action is barred by laches.
Ruling:
That the instant case is one for MANDAMUS, and not QUO WARRANTO, is not of any significance,
for the same principle applies as held in these cases:
An action for reinstatement, by a public official, whether it be quo warranto or mandamus, should
be filed in court within one year from removal or separation, otherwise the action will be barred.
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 (1) year from the
date the petitioner is ousted from his position. The reason behind this being 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.
ACCORDINGLY, the appeal is hereby DENIED. SO ORDERED.
6. Pardo de Tavera v. Phil. Tuberculosis Society, GR. No. L-48928, February 25, 1982
Facts:
Plaintiff is a doctor of Medicine by profession and a recognized specialist in the
treatment of tuberculosis and a member of the Board of Directors of the defendant Society,
in representation of the Philippine Charity Sweepstakes Office as Executive Secretary. The
Board of Directors removed her from her position averring that said position is held at the
pleasure of the Board of Directors and when the pleasure is exercised, it only means that the
incumbent has to vacate the same because her term has expired.
Plaintiff-appellant Mita Pardo de Tavera filed with the Court of First Instance of Rizal a
complaint against the Philippine Tuberculosis Society, Inc.
On September 3, 1976, the court a quo rendered a decision holding that the present suit
being one for quo warranto it should be filed within one year from plaintiff's outer from
office; that nevertheless, plaintiff was not illegally rendered or used from her position as
Executive Secretary in The Society since plaintiff as holding an appointment all the pleasure
of the appointing power and hence her appointment in essence was temporary in nature.
The case was remanded to this Court considering that the appeal raises no factual issues and
involves only issues of law.
Issue:
Whether or not the instant case is an action for damages and not of quo warranto.
Ruling:
While it is true that the complaint questions petitioner's removal from the position of Executive
Secretary and seeks her reinstatement thereto, the nature of the suit is not necessarily one of quo
warranto because the respondents, except for one, namely, Alberto Romulo, are not actually
holding the office in question. Corollarily, the one-year period fixed in Section 16, Rule 66 of the
Revised Rules of Court within which a petition for quo warranto should be filed, counted from the
date of ouster, does not apply to the case at bar.
The action is one for "injury to the rights of the plaintiff, and must be brought within 4 years
murder Article 1146 of the New Civil Code. Nonetheless, the action will not prosper because
the By-laws of the Society stated that petitioner held an appointment at the pleasure of the
appointing power that is in essence temporary in nature. It is co-extensive with the desire of the
Board of Directors.
WHEREFORE, premises considered, the decision of the lower court holding that petitioner was not
illegally removed or ousted from her position as Executive Secretary of the Philippine Tuberculosis
Society, Inc., is hereby AFFIRMED.
SO ORDERED.
7. PPSTA v. Apostol, G.R. No. L-36966, Feb. 28, 1974
Facts:
On July 20, 1972, private respondent Eufemia M. San Luis as a member of the Philippine Public
School Teachers Association (PPSTA for short), a fraternal non-stock association of public school
teachers throughout the country, filed with respondent court of first instance at Quezon City a
complaint with preliminary injunction for the annulment of the 1972 annual elections of the
PPSTA board of directors held on June 26-28, 1972 at Teachers Camp in Baguio City for having
been held outside its principal office at Quezon City against herein petitioners as defendants.
Respondent court rendered without further hearing and trial its decision of April 26, 1973 holding
that " (T)he meeting held in Baguio City being contrary to the by-laws of the corporation and the
Corporation Law, whatever acts therein made, including the elections of the Board of Directors,
are null and void," and declared as null and void all resolutions and corporate acts at the 29th
(1972) annual PPSTA Representative Assembly, including the elections of the 1972 PPSTA board of
directors and the formation of the PPSTA commission on elections which supervised the elections
and proclaimed the winners.
Issue:
Whether or not the action has complied with the requirements of Rule 66 governing
such special civil actions of quo warranto.
Ruling:
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 The Court sets aside the judgment of respondent court.
Respondent's action below was in essence one of quo warranto which is governed by
Rule 66 of the Rules of Court Section 6 thereof provides that in order that an individual may
directly bring the action, he or she must claim to entitled to the public office or position
allegedly unlawfully held or usurped. 6 Otherwise, the action must be brought by the Solicitor
General or fiscal with leave of the court upon the complaint of the relator under section 4 of
the Rule. 7
Chief Justice Moran thus explained the application of the two cited provisions:
The general rule is that actions for quo warranto should be brought by the Solicitor
General or a fiscal in cases of usurpation of an office established by law or by the
Constitution under color of an executive appointment, or the abuse of a public franchise
under color of a legislative grant, for these are public wrongs and not private injuries. Since,
under our system all power emanates from the people, who constitute the sovereignty, the
right to inquire into the authority by which a person assumes to exercise the functions of
a public office or franchise is regarded as inherent in the people on the right their
sovereignty. Hence, the action should be brought by the Solicitor General or the fiscal
who represents the sovereign power.
However, in a case involving merely the administration corporate functions or duties which touch
only private individual rights, such as the election of officers, admission of a corporate officer, or
member, and the like the action for quo warranto may be brought with leave of court, by the
Solicitor General or fiscal upon the relation of any person or persons having an interest injuriously
affected. Such action may be allowed in the discretion of the court, according to section 4 and the
court, before granting leave, may direct that, notice be given to the defendant so that he may be
heard in opposition thereto, under section 5.
Respondent manifestly lays no claim herself to the office of PPSTA director nor has the present
action been filed with leave of court by the Solicitor General or fiscal upon her relation as a party
having an interest injuriously affected, as required by the cited Rule.
Her action must therefore fail on this score and the judgment erroneously rendered by
respondent court shall be set aside.
ACCORDINGLY, the judgment under review of respondent court is hereby set aside and the
complaint ordered dismissed. No pronouncement as to costs.
8. Liban v. Gordon, G.R. No. 175352
Facts:
Petitioners are officers of the Board of Directors of the QC Red Cross Chapter while Respondent is
the Chairman of the Philippine National Red Cross (PNRC) Board of Governors.
Petitioners allege that by accepting the chairmanship of the PNRC Board of Governors,
respondent has ceased to be a member of the Senate - Sec. 13, Art. VI, 1987 Consti: No Senator or
Member of the HoR may hold any other office/employment in the Gov’t, or any subdivision,
agency, or instrumentality thereof, including gov’t-owned or controlled corporations or their
subsidiaries, during his term w/o forfeiting his seat. Neither shall he be appointed to any office
which may have been created or the emoluments thereof increased during the term for which he
was elected).
Petitioners cite Camporedondo v. NLRC which held that PNRC is a gov’t-owned or controlled
corporation. Flores v. Drilon held that incumbent national legislators lose their elective posts
upon their appointment to another government office.
Respondent:
 Petitioners have no standing to file petition w/c appears to be an action for quo
warranto – they do not claim to be entitled to the Senate office of respondent.
 Sec. 11, Rule 66, Rules of Civil Procedure: action should be commenced w/in 1 year after
the cause of public officer’s forfeiture of office – respondent has been working as a Red Cross
volunteer for 40 yrs
 Petitioners cannot raise a constitutional question as taxpayers – no claim that they
suffered some actual damage/threatened injury or illegal disbursement of public funds
 If petition is for declaratory relief, SC has no jurisdiction  original jurisdiction in RTC
 PNRC is not a gov’t owned/controlled corporation
 Sec. 13, Art. VI of Consti does not apply because volunteer service to PNRC is not an
office/employment
Petitioners: present petition is a taxpayer’s suit questioning unlawful disbursement of funds
considering that respondent has been drawing his salaries and other compensation as a
Senator even if he is no longer entitled to his office. Court has jurisdiction because it involves
a legal/constitutional issue of transcendental importance.
Issues, Holding & Ratio:
WON petitioners have standing.
SC: NO. The petition is an action for quo warranto (Sec. 1, Rule 66, Rules of Court – an action
for the usurpation of a public office against a public officer who does or suffers an act which
constitutes a ground for forfeiture of his office). See facts for petitioner’s allegations.
Petitioners do not claim to be entitled to the Senate office of respondent.
9. Santiago v. Guingona, G.R. No. 134577, Nov 18, 1998
FACTS:
During the first regular session of the eleventh Congress, Senator Fernan was declared the duly
elected President of the Senate by a vote of 20 to 2. Senator Tatad manifested that, with the
agreement of Senator Santiago, allegedly the only other member of the minority, he was
assuming the position of minority leader. He explained that those who had voted for Senator
Fernan comprised the majority, while only those who had voted for him, the losing nominee,
belonged to the minority. Senator Flavier manifested that the senators belonging to the Lakas-
NUCD-UMDP Party numbering 7 and, thus, also a minority had chosen Senator Guingona as the
minority leader. Thereafter, the majority leader informed the body that he was in receipt of a
letter signed by the 7 Lakas-NUCD-UMDP senators, stating that they had elected Senator
Guingona as the minority leader. By virtue thereof, the Senate President formally recognized
Senator Guingona as the minority leader of the Senate. Senators Santiago and Tatad filed a
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petition for quo warranto, alleging that Senator Guingona had been usurping, unlawfully holding
and exercising the position of Senate minority leader, a position that, according to them, rightfully
belonged to Senator Tatad.
ISSUE:
Respondent Guingona usurping, unlawfully holding and exercising the position of Senate minority
leader?
HELD:
As discussed earlier, the specific norms or standards that may be used in determining who may
lawfully occupy the disputed position has not been laid down by the Constitution, the statutes, or
the Senate itself in which the power has been vested. Absent any clear-cut guideline, in no way
can it be said that illegality or irregularity tainted Respondent Guingona's assumption and exercise
of the powers of the office of Senate minority leader. Furthermore, no grave abuse of discretion
has been shown to characterize any of his specific acts as minority leader.
10. Yap v. Civil Service Commission, G.R. No. 104226, August 12, 1993
FACTS:
Conchita Romualdez-Yap started working with the PNB on 20 September 1972 as special assistant
with the rank of Second Assistant Manager assigned to the office of the PNB President. After
several promotions, she was appointed in 1983 as Senior Vice President assigned to the Fund
Transfer Department.
Petitioner filed several applications for leave of absence which were duly approved. While she
was on leave, Executive Order No. 80 (Revised Charter of the PNB) was approved authorizing the
reorganization and rehabilitation of PNB. Pursuant to the reorganization plan, the Fund Transfer
Department was abolished and its functions transferred to the International Department.
Conchita was notified of her separation from service thru a letter. Conchita seeks immediate
reinstatement to her former position as senior vice president and head of the Fund Transfer
Department, or reappointment to a position of comparable or equivalent rank without loss of
seniority rights and pay, etc., under the bank's new staffing pattern.
She appealed to the CSC which upheld her separation. Hence the petition.
ISSUE:
WON the 1 year prescriptive period for quo warranto proceedings should apply in this case.
HELD:
YES. The prayer in the petition at bar seeks petitioner's immediate reinstatement to her former
position as senior vice president and head of the Fund Transfer Department, or reappointment to
a position of comparable or equivalent rank without loss of seniority rights and pay, etc., under
the bank's new staffing pattern.
An action for quo warranto should be brought within one (1) year after ouster from office. The
failure to institute the same within the reglementary period constitutes more than a sufficient
basis for its dismissal , since it is not proper that the title to a public office be subjected to
continued with uncertainty. An exception to this prescriptive period lies only if the failure to file
the action can be attributed to the acts of a responsible government officer and not of the
dismissed employee. Based on her allegations, the action is one for quo warranto which
prescribes after 1 year from the ouster. She claims that the action is one for separation from
service without just cause with a prescriptive period of 4 years under Article 1146 of the Civil Code
and that there is no claim of usurpation. This cannot be upheld because her separation from
service was due to the abolition of her office in implementation of a valid reorganization. This is
not the unjustifiable cause whichresults in injury to the rights of a person contemplated by Article
1146.
Vigilantibus, non dormientibus, jura subveniunt (Laws come to the assistance of the vigilant, not
of the sleeping)
Restoring petitioner to her previous position with backwages would be unjust enrichment to her,
considering that she had abandoned or showed lack of interest in reclaiming the same position
when the bank was not yet fully rehabilitated and she only insisted on reinstatement in August
1989 or two (2) years after her alleged unjustified separation.
PETITION DISMISSED.
RULE 67 – Expropriation
 The power of eminent domain is described as the right to take or reassert dominion over
property within the state for public use or to meet a public exigency
 Constitutional limitations of expropriation:
1. Public use
2. Payment of just compensation
 Scope of eminent domain as exercised by Congress is plenary and broad, however, may also
be delegated to local political subdivisions and public utilities.
 Requisites of exercise of eminent domain by local government units (Sec 19, RA 7160)
1. An ordinance enacted by the local legislative council (mere resolution of lawmaking
body is not acceptable)
2. Exercised for public use, purpose or welfare for the benefit of the poor and the landless;
3. Payment of just compensation
4. Valid and definite offer previously made to owner but said offer was not accepted
5. Deposit of at least 15% of the fair market value of the property based on the current tax
declaration of the property expropriated
 Two stages in expropriation process:
1. Determination of authority of plaintiff to expropriate : result in:
a. the issuance of an order of expropriation if the court finds for the plaintiff or
b. The dismissal of complaint
2. Determination of just compensation through the court-appointed commissioners
 Just compensation is defined as the full and fair equivalent of the property sought to be
expropriated. The measure is not the taker’s gain but the owner’s loss.
Page 77 of 96
 Nonpayment of just compensation does not entitle the landowner to recover possession of  Defendant shall service his answer within the time stated in the summons; the
the expropriated lots. However, in cases where the government failed to pay just answer shall:
compensation within 5 years from the finality of judgment, the owners concerned shall have a. Specifically designate or identify the property to which he claims interest;
the right to recover possession of their property. b. Nature and extent of interest claimed;
c. Adduce all objections and defenses to the taking of his property
 Procedure (Rules of Court)
1. Verified Complaint (Sec 1)  No counterclaim, cross-claim or third party complaint shall be alleged or allowed
Contents in the answer or any subsequent pleading
a. Right and purpose of expropriation
b. Description of the real or personal property sought to be expropriated Waiver
c. Join as defendants all persons owning or claiming to own, or occupying, any part  Applied to issues not so alleged
thereof or interest therein  However :
d. The fact, if any, that : a. On Determination of Propriety of Expropriation
d.1. title to property expropriated appears to be in the Republic of the Phils Court may permit (and therefore leave of court is required) amendments
although occupied by private individuals to the answer to be made not later than 10 days from the filing
d.2. title is obscure or doubtful so that plaintiff cannot specify with accuracy or b. On Determination on Just Compensation
certainty who the real owners are Defendant may (whether or not he has appeared or answered):
b.1. present evidence as to the amount of compensation to be paid and
2. Notice, Deposit, Enter (Sec 2) b.2. may share in the distribution of the award
If Real Property
Plaintiff shall have right to take or enter upon possession of the real property: 4. Order of Expropriation (Sec 4)
a. Upon filing of complaint or any time thereafter  Order contains declaration that plaintiff has lawful right to expropriate upon
b. After due notice to the defendant payment of just compensation to be determined as of the date of the taking of the
c. If he deposits with authorized government depositary the amount of the assessed property or the filing of the complaint, whichever came first.
value of the property  After rendition of order, plaintiff shall not be permitted to dismiss or discontinue
***Deposit shall be in the form of: the proceeding except on such terms as the court deems just and equitable
c.1. money; or
c.2. if the court authorizes, a certificate of deposit of a government bank of the  Issued when:
Phils payable on demand to the authorized government depositary a. The objections to and defenses against the right of the plaintiff to expropriate
are overruled; or,
If Personal Property b. When no party appears to defend
a. Value shall be provisionally ascertained and amount to be deposited to be fixed by
the court  Appeal
b. Court shall order sheriff or other proper officer to place plaintiff in possession of a. Final order sustaining the right to expropriate may be appealed by any
the personal property aggrieved party
c. Sheriff submits a report thereof with service of copies to parties. b. Shall not prevent the court from determining the just compensation to be
paid
3. Manifestation/Answer - No Objections or With Objections (Sec 3)
Without Objections
 Defendant files: 5. Ascertainment of Just Compensation/Commissioner’s Report (Sec 5,6,7,8)
a. Notice of Appearance
b. Manifestation that he has no objection or defense to the action or taking of Appointment of Commissioners
property  Court shall appoint not more than 3 competent and disinterested persons as
c. Specifically designate or identify the property to which he claims to be commissioners to report on just compensation for property to be taken
interested  Appointment shall contain :
 Effect : he shall be entitled to all notice of all proceedings a) time and place of first session of hearing
b) time within which report shall be submitted to the court
With Objections

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  Objections to the appointment shall be filed with the court within 10 days from
service and resolved within 30 days after receipt by commissioners of the Costs
objections a. For Plaintiff
a.1. fees of the commissioners
Proceedings in the Commission a.2. all costs except those of rival claimants
a. Commissioners shall take and subscribe to an oath to be filed in court with other b. For Owner of Property
proceedings b.1. costs of appeal when judgment is affirmed
b. Duties of Commissioners:
1. Receive evidence introduced by either party Recording Judgment
2. Administer oaths on hearings before them  Judgment shall contain :
3. Attend, view and examine the property to be expropriated and its 1. Adequate description of the property or interest expropriated;
surroundings, unless parties consent to the contrary and after due notice to 2. Nature of the public use or purpose
parties  Copy of judgment shall be recorded in the registry of deeds where property is
4. Measure the property to be taken situated
5. Assess the consequential benefits and deduct from such the consequential  Effect : vest in the plaintiff the title to the real estate expropriated
damages, however, in no case shall :
Power of Guardian
a) the former exceed the latter ; or,  May, with the approval of the court, do and perform on behalf of his ward any act,
b) the owner deprived of the actual value of the property matter or thing re: the appropriation

Report of the Commission and Judgment Thereupon

Partial report – the court may : 7. Payment of just compensation/taking of property (Sec 9 and 10)

1. Order the commissioner to report when any particular portion of the real estate
shall have been passed upon by them
2. Render judgment upon such partial report
3. Direct commissioners to proceed with the subsequent portions of the property
Full Report
1. Shall not be effectual until courts have accepted report in accordance with
recommendations
2. Shall be filed within 60 days from date commissioners were notified of
appointment, which time may be extend upon discretion of the court
3. Clerk shall serve copies to all interested parties with notice that they are allowed
10 days which to file objections to the findings of the report
6. Judgment/Order on Just Compensation (Sec 8,12,13,14)
When judgment issued
1. Upon expiration of the 10 days for which to file objections to the report; or,
2. After all the interested parties have filed their objections to the report or their
agreement therewith;
Judgment – court may:
1. Accept the report and render judgment in accordance with report; or,
2. Recommit the same to the commissioners for further report of facts; or
3. Set aside report and appoint new commissioners; or,
4. Accept the report in part and reject it in part
5. Make such order or render such judgment to secure the property to the plaintiff
and the just compensation to the defendant
 If ownership uncertain or there are conflicting claims
1. Court may order sum to be paid to the court for the benefit of the person
adjudged to be entitled thereto
2. Judgment shall require payment of the sum to either defendant or the court
before plaintiff can enter property or retain it for public use if entry has
already been made
 Amount for just compensation includes legal interest thereon from the time of
taking of the property
 Upon payment, plaintiff shall have right to a) enter upon property and b)
appropriate it for purpose defined in the judgment or c) retain it should he have
possession of such already
 Amount shall be ordered to be deposited in court if :
a. The defendant and his counsel absent themselves from the court; or,
b. Decline to receive the amount tendered
**The deposit in court shall have the same effect as actual payment.
8. Appeal (Sec 11)
 Right of the plaintiff to enter upon property and appropriate the same shall not be
delayed by an appeal from the judgment
 If appellate court determines plaintiff had no right to expropriate, RTC shall be
ordered to enforce :
a. The restoration to the defendant of the possession of the property
b. Determine the damages which the defendant sustained

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 RA 8974 – “An Act to Facilitate the Acquisition of Right of Way, Site, or Location for National
Government Infrastructure Projects and for Other Purposes”
 Supercedes the system of deposit under Rule 67 with the scheme of “immediate
payment” in cases involving national government infrastructure projects
1. NPC v. Co, G.R. No. 166973, February 10, 2009
FACTS:
The petitioner herein, NPC, is a government corporation created under R.A. No. 6395 to
undertake the development of hydroelectric generation of power and the production of electricity
from nuclear, geothermal and other sources, as well as the transmission of electric power on a
nationwide basis. Its charter grants to petitioner, among others, the power to exercise the right to
eminent domain.
Sometime in June 27, 2001, petitioner filed a complaint with the RTC of San Fernando,
Pampanga, for the acquisition of an easement of right-of-way over three (3) lots at Barangay
Cabalantian, Bacolor, Pampanga belonging to respondent herein for purposes of construction of
its transmission lines for its Lahar Affected Transmission Line Project.
On March 25, 2002, NPC obtained a writ of possession and on April 15, 2002 they took
possession of the property.
On hearing the RTC appointed 3 commissioners to determine the fair market value of the
property as of 15 April 2002. The first two commissioners appraised the property at P1,900.00 per
square meter or a total of P1,179,000.00. While the third commissioner peg the value of the
property at P875.00 per square meter.
The RTC rendered its Partial Decision, wherein it declared the validity of the
expropriation and ordered petitioner to pay the sum of P1,179,000.00, with interest at 6% per
annum beginning April 15, 2002, the date of actual taking, until full payment.
Not satisfied with the ruling of lower court NPC elevate the case to CA, which the appellate court
also rendered Decision holding petitioner liable to pay the full fair market value at the time of
actual taking, with interest at 6% per annum from 15 April 2002.
Aggrieved with the order NPC appealed to SC hence this case.
ISSUES:
Whether or not petitioner herein should pay the subject property in its full market value?
Is the reckoning date for the determination of just compensation is upon position or upon the
date of filing?
HELD:
YES. As earlier mentioned, Section 3A of R.A. No. 6395, as amended, substantially provides that
properties which will be traversed by transmission lines will only be considered as easements and
just compensation for such right of way easement shall not exceed 10 percent of the market
value. However, this Court has repeatedly ruled that when petitioner takes private property to
construct transmission lines, it is liable to pay the full market value upon proper determination by
the courts.
The presence of transmission lines undoubtedly restricts respondent’s use of his
property. Petitioner is thus liable to pay respondent the full market value of the property.
UPON THE DATE OF FILING. Rule 67 clearly provides that the value of just compensation
shall “be determined as of the date of the taking of the property or the filing of the complaint,
whichever came first.”
It is settled that just compensation is to be ascertained as of the time of the taking,
which usually coincides with the commencement of the expropriation proceedings. Where the
institution of the action precedes entry into the property, the just compensation is to be
ascertained as of the time of the filing of the complaint.
EXCEPTIONS: There are exceptions—
 grave injustice to the property owner,
 the taking did not have color of legal authority,
 the taking of the property was not initially for expropriation and the owner will be given
undue increment advantages because of the expropriation.
However, none of these exceptions are present in the instant case.
Based on the foregoing, the reckoning date for the determination of the amount of just
compensation is 27 June 2001, the date when petitioner filed its expropriation complaint.
2. Philippine Veterans Bank v. Bases Conversion Development Authority, G.R. No. 173085, Jan
19, 2011
FACTS:
Sometime in 2003 respondent Bases Conversion Development Authority, a government
corporation, filed several expropriation actions before the various branches of the RTC
of Angeles City, for acquisition of lands needed for the construction of the Subic-Clark-Tarlac
Expressway Project. Ten of these cases were raffled to Branch 58 of the court which was being
the concern of this case.
Respondents in Branch 58 cases are Armando Simbillo, Christian Marcelo, Rolando
David, Ricardo Bucud, Pablo Santos, Agrifina Enriquez, Conrado Espeleta, Catgerube Castro,
Carlito Mercado, and Alfredo Suarez. All of them are the registered owners of the expropriated
lands that they acquired as beneficiaries of the comprehensive agrarian reform program.
Land Bank of the Philippines, another respond herein, is the mortgagee of the lands by
virtue of the loans it extended for their acquisition. The lands in these cases were located in Porac
and Floridablanca, Pampanga.
Upon notice of the filing of the case, petitioner herein, move for intervention before the
RTC branch 58 which was also denied by said court.
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 PVB then filed its motion for reconsideration but Branch 58 denied the same, prompting
the bank to file a petition for certiorari with the Court of Appeals. The CA on its decision rendered
dismissed the petition for lack of merit. Hence this case.
ISSUE:
Whether or not intervention in the expropriation cases allowed?
HELD:
YES. PVB’s point regarding the authority of the court in expropriation cases to hear and adjudicate
conflicting claims over the ownership of the lands involved in such cases is valid. But such rule
obviously cannot apply to PVB for the following reasons:
1. At the time PVB tried to intervene in the expropriation cases, its conflict with the farmer
beneficiaries who held CLOAs, EPs, or TCTs emanating from such titles were already pending
before Angeles City RTC Branch 62, a co-equal branch of the same court. Branch 58 had no
authority to pre-empt Branch 62 of its power to hear and adjudicate claims that were already
pending before it.
2.Of course, subsequently, after the CA dismissed PVB’s petition on January 26, 2006, the latter
filed a motion for reconsideration, pointing out that it had in the meantime already withdrawn
the actions it filed with Branch 62 after learning from the decision of the Supreme Court
in Department of Agrarian Reform v. Cuenca, that jurisdiction over cases involving the annulment
of CLOAs and EPs were vested by Republic Act 6657 in the DARAB.
Branch 58 would still have no power to adjudicate the issues of ownership presented by
the PVB’s intervention.
Section 9 above empowers the court to order payment to itself of the proceeds of the
expropriation whenever questions of ownership are yet to be settled. There is no reason why this
rule should not be applied even where the settlement of such questions is to be made by another
tribunal. Denied.
3. Republic v. Gingoyon, G.R. No. 166429, 19 Dec 2005
FACTS:
There are two cases has been filed, one is Agan v. PIATCO which has been decided on 2004 on the
basis of fairness, the same norm that pervades both the Court’s 2004 Resolution in the first case
and the latest expropriation law. The second is this present controversy which involves the
matter of just compensation due the contractor for the terminal complex it built.
The present controversy has its roots with the promulgation of the Court’s decision in
Agan v. PIATCO, which nullified the “Concession Agreement for the Build-Operate-and-Transfer
Arrangement of the Ninoy Aquino International Airport Passenger Terminal III” entered into
between the Philippine Government and the Philippine International Air Terminals Co., Inc. as
well as the amendments and supplements thereto. On the ground that the said agreement was
contrary to public policy.
After the promulgation of the rulings in Agan, the NAIA 3 facilities have remained in the
possession of PIATCO, despite the avowed intent of the Government to put the airport terminal
into immediate operation. The Government and PIATCO conducted several rounds of negotiation
regarding the NAIA 3 facilities.
Sometime inDecember 21, 2004, the Government filed a Complaint for expropriation with the
Pasay RTC, together with an Application for Special Raffle seeking the immediate holding of a
special raffle and sought upon the filing of the complaint the issuance of a writ of possession
authorizing it to take immediate possession and control over the NAIA 3 facilities.
The Government also declared that it had deposited the amount of P3,002,125,000.00
in Cash with the Land Bank of the Philippines, representing the NAIA 3 terminal’s assessed value
for taxation purposes.
The case was raffled to the sala of public respondent herein, who issued the same an
order directing the issuance of a writ of possession to the Government, authorizing it to “take or
enter upon the possession”
However, on 4 January 2005, the RTC issued another Order designed to supplement its
21 December 2004 Order and the Writ of Possession noting its earlier issuance of its writ of
possession was pursuant to Section 2, Rule 67 of the 1997 Rules of Civil Procedure.
It was found out later that said rule 67 sec. 2 had been amended by R.A. No. 8974
known as “An Act to Facilitate the Acquisition of Right-of-Way, Site or Location for National
Government Infrastructure Projects and For Other Purposes”.
Accordingly, on the basis of Sections 4 and 7 of R.A. No. 8974 and Section 10 of the
Implementing Rules, issued another order. First, it directed theLBP-Baclaran, to immediately
release the amount of US$62,343,175.77 to PIATCO. Second, the Government was directed to
submit to the RTC a Certificate of Availability of Funds signed by authorized officials to cover the
payment of just compensation. Third, the Government was directed “to maintain, preserve and
safeguard” the NAIA 3 facilities or “perform such as acts or activities in preparation for their direct
operation” of the airport terminal, pending expropriation proceedings and full payment of just
compensation. However, the Government was prohibited “from performing acts of ownership like
awarding concessions or leasing any part of NAIA-3 to other parties.”
The government then filed a motion for reconsideration but was denied by public
respondent. Hence a Petition for Certiorari and Prohibition under Rule 65 was filed, praying for
the nullification of the RTC orders dated January 4, 2005, January 7, 2005, and January 10, 2005,
and for the inhibition of Hon. Gingoyon from taking further action on the expropriation case.
ISSUE:
Whether or not Rule 67 prevails over R.A. 8974?
HELD:
NO. Rule 67 outlines the procedure under which eminent domain may be exercised by the
Government. Yet by no means does it serve at present as the solitary guideline through which the
State may expropriate private property.
Page 81 of 96
 Rep. Act No. 8974, which provides for a procedure eminently more favorable to the
property owner than Rule 67, inescapably applies in instances when the national government
expropriates property “for national government infrastructure projects.”[28] Thus, if
expropriation is engaged in by the national government for purposes other than national
infrastructure projects, the assessed value standard and the deposit mode prescribed in Rule 67
continues to apply.
It is the finding of this Court that the staging of expropriation proceedings in this case
with the exclusive use of Rule 67 would allow for the Government to take over the NAIA 3 facilities
in a fashion that directly rebukes our 2004 Resolution in Agan. This Court cannot sanction
deviation from its own final and executory orders.
Thus, at the very least, Rule 67 cannot apply in this case without violating the 2004
Resolution. Even assuming that Rep. Act No. 8974 does not govern in this case, it does not
necessarily follow that Rule 67 should then apply. After all, adherence to the letter of Section 2,
Rule 67 would in turn violate the Court’s requirement in the 2004 Resolution that there must first
be payment of just compensation to PIATCO before the Government may take over the property.
4. Republic v. Gingoyon, G.R. No. 166429, Feb 1, 2006
FACT: ibid
ISSUE: Is motion for intervention allowed?
HELD: Since this case originated from an original action filed before this Court, the appropriate
time to file the motions-in-intervention in this case if ever was before and not after resolution of
this case. To allow intervention at this juncture would be highly irregular. It is extremely
improbable that the movants were unaware of the pendency of the present case before the
Court, and indeed none of them allege such lack of knowledge. ‘
Moreover, the requisite legal interest required of a party-in-intervention has not been
established so as to warrant the extra-ordinary step of allowing intervention at this late stage. As
earlier noted, the claims of Takenaka and Asahikosan have not been judicially proved or
conclusively established as fact by any trier of facts in this jurisdiction. Certainly, they could not be
considered as indispensable parties to the petition for certiorari.
5. Asia’s Emerging Dragon Corporation v. DOTC, G.R. No. 169914, April 18, 2008
Facts:
This is a consolidated case, but in view of the topic of expropriation we focus more in the case of
DOTC vs. SalacnibBaternia.
In order to better appreciate the case we must first discuss the facts and rulings in the
case ofAgan andGingoyon.
In 1995 Asia’s Emerging Dragon (AEDC ),( composed of the 6 most influential
businessman in the Philippines mainly John Gokongwei, Lucio Tan, Henry Sy, Andrew Gotianun,
George Ty and Alfonso Yuchengco.,) – submitted an unsolicited proposal to the Government
through the DOTC for the development of NAIA III under a build-operate-and transfer-
arrangement pursuant to RA 6957 as amended by RA 7718. Wherefore the proposal was indeed
approved by the Government.
Biddings were held, in which in the end the Project was awarded to PIATCO. Objections
were raised by AEDC but in the end the Government justified the award to PIATCO mainly
because AEDC was not able to match the bid of PIATCO.
In 2002 the Build-operate-and transfer-arrangement (BOT) between the GOvt. and PIATCO was
questioned in the case of Agan. Wherefore the court ruled among others that, in view of
anomalies in awarding PIATCO the BOT , the contract/ award (BOT) was declared null and void.
However the court ruled that it was not unmindful of the reality that the structures comprising
the NAIA III facility are almost complete and that the funds have been spent by PIATCO in their
construction. For the Government to take over said facility, it has to compensate respondent
PIATCO as builder of the said structures. The compensation must be just and accordance with law
and equity for the government can not unjustly enriched itself at the expense of PIATCO and its
investors.
The abovementioned pronouncement of the Court in Agan gave rise to the petition in
the GIngoyan case. The facts of which are as follows .After the promulgation of the ruling in Agan
case, NAIA III was still in the possession of PIATCO, despite the avowed intent of the Government
to put the airport terminal into immediate operation. Whereby the Govt. and PIATCO entered into
several rounds of negotiation and even appeared before arbitral proceedings before International
Chamber of Commerce International Court of Arbitration.
Then on, Dec. 21, 2004 the Govt filed a complaint for expropriation with the Pasay RTC.
The Govt seeks the issuance of a writ of possession authorizing immediate possession of NAIA III,
it also declared that it had deposited the amount of 3 Billion in cash with the Land Bank,
representing the NAIA 3 terminal assessed value for tax purposes. The RTC through Judge
Gingoyonissued in the same day the Writ of Possession prayed for by the Government citing the
case of Manila vs. Serrano that the RTC had the ministerial duty to issue the writ of possession
upon filing of a complaint for expropriation sufficient in form and substance, and upon deposit
made by the Government of the amount equivalent to assessed value of the property subject for
expropriation.
However, on Jan 4. 2005, the RTC issued another order – the assailed order in this case
of Gingoyon- to supplement its earlier order dated Dec. 21, 2004. The RTC noted that the first
order was issued pursuant to Sec. 2, Rule 67 of the Rules of Court. However, it was observed that
R.A.8974, had amended Rule 67 in many respects. That there are at least two crucial differences
between the respective procedures under RA 8974 and Rule 67. Under the Statute the Govt. is
required to make immediate payment to the property owner upon filing of the complaint to be
entitled to a writ of possession, whereas in Rule 67, the Govt. is required only to make an initial
deposit with an authorized government depositary. Moreover Rule 67 prescribes that the initial
deposit be equivalent to the assessed value of the property for purposes of Tax, unlike in RA 8974
which provides, as the relevant standard for initial compensation, the market value of the
property as stated in the tax declarations or the current relevant zonal valuation of the BIR,
whichever is higher, and the value of the improvements and/or structure using the replacement
cost method.
Page 82 of 96
 The Govt. in this case of GiNgoyon questioned the above ruling.
The Supreme Court held the validity of the RTC’s ruling. It held among others that 1. RA
8947 applies in this case, particularly insofar as it requires the immediate payment by the Govt. of
at least the proferred value of the NAIA III facilities to PIATCO and provides certain valuation
standard method for the determination of just compensation. 2. That in applying RA 8974, the
implementation of Writ of Possession in favour of the Govt over NAIA is held in abeyance until
PIATCO is directly paid the amount of 3 Billion pesos, representing the proferred value of NAIA III
3. The Govt. shall pay the just compensation fixed in the decision of the trial court to PIATCO
immediately upon the finality of said decision.
Finally we tackle the facts of the case of Republic vs. CA and Baterina. Congressman Baterina,
together with other member of the Lower House filed a petition for Prohibition in Intervention
with application for TRO. Baterina, et. al believes that the Govt. need not file expropriation
proceedings to gain possession if NAIA 3 and that PIATCO is not entitled to just compensation,
arguing that PIATCO does not own NAIA 3 because BOT contract do not vest ownership. That the
land in which NAIA 3 is situated is owned by the Government.
Issue:
In essence, Baterina is opposing the expropriation proceedings on the ground that NAIA 3 is
already a public property. Hence PIATCO is not entitled to just compensation for NAIA 3.
HELD: PIATCO is entitled to just compensation and that the expropriation proceedings
commenced by the Government was proper and valid.. The Government has chosen to resort to
expropriation, a remedy available under the law, which has the added benefit of an integrated
process for the determination of just compensation and the payment thereof to PIATCO. We
appreciate that the case at bar is a highly unusual case, whereby the Government seeks to
expropriated a building complex constructed on land which the State already owns.
The right of eminent domain extends to personal property and real property, and the
NAIA 3 structures, adhered as they are to the soil, are considered real property. The public
purpose for the expropriation is also beyond dispute. It should also be noted that Section 1 of
Rule 67 recognizes the possibility that the property sought to be expropriated may be titled in the
name of the Republic of the Philippines, although occupied by private individuals, and in such case
an averment to that effect should be made in the complaint. The instant expropriation complaint
did aver that the NAIA 3 complex “stands on a parcel of land owned by the Bases Conversion
Development Authority, another agency of the Republic”. Admittedly, eminent domain is not the
sole judicial recourse by which the government may have acquired the NAIA 3 facilities while
satisfying the requisites in the order held by the SC in the Case of Agan. Eminent Domain though
may be the most effective, as well as the speediest means by which such goals may be
accomplished. Not only does it enable immediate possession after satisfaction of the requisites
under the law, it also has a built-in procedure through which just compensation may be
ascertained. Thus, there should be no question as to the propriety of eminent domain
proceedings in this case.
6. NPC v. Angas, G.R. Nos. 60225-26, 8 May 1992, 208 SCRA 542.
Facts:
On April 13, 1974 and December 3, 1974, petitioner National Power Corporation, a government-
owned and controlled corporation and the agency through which the government undertakes the
on-going infrastructure and development projects throughout the country, filed two complaints
for eminent domain against private respondents with the Court of First Instance. Both cases were
jointly tried upon agreement of the parties. On June 15, 1979, a consolidated decision in Civil
Cases Nos. 2248 and 2277 was rendered by the lower court, declaring and confirming that the lots
mentioned and described in the complaints have entirely been lawfully condemned and
expropriated by the petitioner, and ordering the latter to pay the private respondents certain
sums of money as just compensation for their lands expropriated "with legal interest thereon
until fully paid."
Two consecutive motions for reconsideration of the said consolidated decision were filed by the
petitioner. The same were denied by the respondent court. Petitioner did not appeal the
aforesaid consolidated decision, which became final and executory.Thus, on May 16, 1980, one of
the private respondents [Sittie Sohra Batara] filed an ex-parte motion for the execution of the
June 15, 1979 decision, praying that petitioner be directed to pay her the unpaid balance of
P14,300.00 for the lands expropriated from her, including legal interest which she computed at
6% per annum. The said motion was granted by the lower court. Thereafter, the lower court
directed the petitioner to deposit with its Clerk of Court the sums of money as adjudged in the
joint decision dated June 15, 1979.
Petitioner complied with said order and deposited the sums of money with interest computed at
6% per annum. On February 10, 1981, one of the private respondents [Pangonatan Cosna Tagol],
through counsel, filed with the trial court anex-parte motion in Civil Case No. 2248 praying, for the
first time, that the legal interest on the just compensation awarded to her by the court be
computed at 12% per annum as allegedly "authorized under and by virtue of Circular No. 416 of
the Central Bank issued pursuant to Presidential Decree No. 116 and in a decision of the Supreme
Court that legal interest allowed in the judgment of the courts, in the absence of express contract,
shall be computed at 12% per annum."
On February 11, 1981, the lower court granted the said motion allowing 12% interest per annum.
[Annex L, Petition]. Subsequently, the other private respondents filed motions also praying that
the legal interest on the just compensation awarded to them be computed at 12% per annum, on
the basis of which the lower court issued on March 10, 1981 and August 28, 1981 orders bearing
similar import. Petitioner moved for a reconsideration of the lower court's last order dated August
28, 1981, alleging that the main decision had already become final and executory with its
compliance of depositing the sums of money as just compensation for the lands condemned, with
legal interest at 6% per annum; that the said main decision can no longer be modified or changed
by the lower court; and that Presidential Decree No. 116 is not applicable to this case because it is
Art. 2209 of the Civil Code which applies.
On January 25, 1982, the lower court denied petitioner's, motion for reconsideration, stating that
the rate of interest at the time of the promulgation of the June 15, 1981 decision is that
Page 83 of 96
prescribed by Central Bank Circular No. 416 issued pursuant to Presidential Decree No. 116, which
is 12% per annum, and that it did not modify or change but merely amplified its order of August
28, 1981 in the determination of the legal interest.
Issue:
WON in the computation of the legal rate of interest on just compensation for expropriated lands,
the law applicable is Article 2209 of the Civil Code which prescribes a 6% legal interest rate or
Central Bank Circular No. 416 which fixed the legal interest rate at 12% per annum.
Ruling:
WHEREFORE, the petition is granted. The Orders promulgated on February 11, 1981,
March 10, 1981, August 28, 1981 and January 25, 1982 [as to the recomputation of interest at
12% per annum] are annulled and set aside. It is hereby declared that the computation of legal
interest at 6% per annum is the correct and valid legal interest allowed in payments of just
compensation for lands expropriated for public use to herein private respondents by the
Government through the National Power Corporation. The injunction heretofore granted is
hereby made permanent. No costs.
7. City of Manila v. Serrano, G.R. No. 142304, Jun 20, 2001
FACTS:
The City Council of Manila enacted Ordinance No. 7833 authorizing the expropriation of certain
properties in Manila’s First District in Tondo. One of the properties sought to be expropriated was
that supposedly owned by respondents.
Petitioner City of Manila filed an amended complaint for expropriation, docketed as Civil Case No.
94-72282, with the RTC of Manila, against the supposed owners of the lots, which included herein
respondents Oscar, Felicitas, Jose, Benjamin, Estelita, Leonora, Adelaida, all surnamed Serrano.
Respondents filed a consolidated answer, in which they alleged that their mother, the late
Demetria De Guia, had acquired Lot 1-C from Lee Kian Hui; that they had been the bona fide
occupants of the said parcel of land for more than 40 years; that the expropriation of Lot 1-C
would result in their dislocation, it being the only residential land left to them by their deceased
mother; and that the said lot was exempt from expropriation because dividing the said parcel of
land among them would entitle each of them to only about 50 square meters of land.
Respondents, therefore, prayed that judgment be rendered declaring Lot 1-C exempt from
expropriation and ordering the cancellation of the notice annotated on the back of TCT No.
226048, regarding the pendency of Civil Case No. 94-72282 for eminent domain filed by
petitioner.
Upon motion by petitioner, the trial court issued an order, dated October 9, 1998, directing
petitioner to deposit the amount of P1,825,241.00 equivalent to the assessed value of the
properties. After petitioner had made the deposit, the trial court issued another order, dated
December 15, 1998, directing the issuance of a writ of possession in favor of petitioner.
Respondents filed a petition for certiorari with the Court of Appeals, alleging that the
expropriation of Lot 1-C would render respondents, who are actual occupants thereof, landless;
that Lot 1-C is exempt from expropriation because R.A. No. 7279 provides
that properties consisting of residential lands not exceeding 300 square meters in highly
urbanized cities are exempt from expropriation; that respondents would only receive
around 49 square meters each after the partition of Lot 1-C which consists of only
343.10 square meters; and that R.A. No. 7279 was not meant to deprive an owner of the
entire residential land but only that in excess of 300 square meters.
On November 16, 1999, the Court of Appeals rendered a decision holding that Lot 1-C
is not exempt from expropriation because it undeniably exceeds 300 square meters
which is no longer considered a small property within the framework of R.A. No. 7279. However,
it held that in accordance with the ruling in Filstream International Inc.
v. Court of Appeals, the other modes of acquisition of lands enumerated in §§9-10 of the law
must first be tried by the city government before it can resort to expropriation. As petitioner
failed to show that it had done so, the Court of Appeals gave judgment for respondents and
enjoined petitioner from expropriating Lot 1-C.
ISSUE:
WON the CA erred in concluding that the Order of the RTC which authorizes the immediate entry
of the City as the expropriating agency into the property sought to be expropriated upon the
deposit thereof as tantamount to condemnation of the property.
RULING:
YES. Rule 67, §2 provides: Upon the filing of the complaint or at any time thereafter and after due
notice to the defendant, the 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 an amount
equivalent to the assessed value of the property for purposes of taxation to be held by such bank
subject to the orders of the court. After such deposit is made the 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. Thus, a writ of
execution may be issued by a court upon the filing by the government of a complaint for
expropriation sufficient in form and substance and upon deposit made by the government of the
amount equivalent to the assessed value of the property subject to expropriation. Upon
compliance with these requirements, the issuance of the writ of possession becomes ministerial.
In this case, these requirements were satisfied and, therefore, it became the ministerial duty of
the trial court to issue the writ of possession.
The Court of Appeals, however, ruled that petitioner failed to comply with the requirements laid
down in §§9-10 of R.A. No. 7279 and reiterated in the Filstream ruling. This is error. The ruling in
Filstream was necessitated because an order of condemnation had already been issued by the
trial court in that case. Thus, the judgment in that case had already become final. In this case, the
trial court has not gone beyond the issuance of a writ of possession. Hearing is still to be held to
determine whether or not petitioner indeed complied with the requirements provided in R.A. No.
7279. It is, therefore, premature at this stage of the proceedings to find that petitioner resorted
to expropriation without first trying the other modes of acquisition enumerated in §10 of the law.
Expropriation proceedings consists of two stages: first, condemnation of the property after it is
determined that its acquisition will be for a public purpose or public use and, second, the
Page 84 of 96
determination of just compensation to be paid for the taking of private property to be made by
the court with the assistance of not more than three
commissioners.
8. Republic v. Tagle, G.R. No. 129079, December 2, 1998
Facts:
Helena Benitez is a registered owner of 2 parcels of land in Bgy. Salwag, Dasmarinas, Cavite.
Sometime in Sept. 1982, the Philippine Government, through the Philippine Human Resources
Development Center (PHRDC), an agency under the Ministry of Human Settlements, negotiated
with the Japanese International Cooperation Agency (JICA) Survey Team on technicalities of the
establishment of ASEAN Human Resources Development Project in the Philippines. Among the the
5 main programs of the proposed project was the Construction Manpower Development Center
(CMDC), an agency now under the Department of Trade and Industry.
Several transaction and agreements were entered into between Benitez (together with Philippine
Women’s University) and the PHRDC with regards to the lease and consequently, the possible sale
of the land which did not push through because of Benitez’s desistance. Thereafter, Benitez and
PWU demanded from PHRDC the payment of rentals and to vacate the premises. Benitez later
filed an unlawful detainer case against PHRDC. In turn, the state through DTI (with GMA as
undersecretary), to which CMDF is attached instituted a complaint for Eminent Domain, pursuant
to EO 1935. In compliance with Section 2, Rule 67 of the Rules of Court, as amended by
Presidential Decree No. 42, DTI deposited with PNB in favor of Benitez P708,490 an amount
equivalent to the provisional value of the land sought to be expropriated. Subsequently, DTI filed
a Motion for Issuance of Writ of Possession which had been granted but subsequently quashed by
MTC Judge Tagle.
Issue:
Whether Judge Tagle may quash a writ of possession on the ground that the expropriating
government agency is already occupying the property sought to be expropriated.
Held:
No. Judge Tagle is required to issue a writ of possession in favor DTI pursuant to Sec. 7 of EO 1035:
“SEC 7. Expropriation. If the parties fail to agree in negotiation of the sale of the land as provided
in the preceding section, the government implementing agency/instrumentality concerned shall
have authority to immediately institute expropriation proceedings through the Office of the
Solicitor General, as the case may be. The just compensation to be paid for the property acquired
through expropriation shall be in accordance with the provisions of P.D. No. 1533. Courts shall
give priority to the adjudication of cases on expropriation and shall immediately issue the
necessary writ of possession upon deposit by the government implementing
agency/instrumentality concerned of an amount equivalent to ten per cent (10%) of the amount
of just compensation provided under P.D. No. 1533; Provided, That the period within which said
writ of possession shall be issued shall in no case extend beyond five (5) days from the date such
deposit was made.”
Under this statutory provision, when the government or its authorized agent makes the required
deposit, the trial court has a ministerial duty to issue a writ of possession.
The expropriation of real property does not include mere physical entry or occupation of land.
Although eminent domain usually involves a taking of title, there may also be compensable taking
of only some, not all, of the property interests in the bundle of rights that constitute ownership.
The writ of possession is both necessary and practical, because mere physical possession that is
gained by entering the property is not equivalent to expropriating it with the aim of acquiring
ownership over, or even the right to possess, the expropriated property.
Clearly, an ejectment suit ordinarily should not prevail over the State’s power of eminent domain.
DTI has deposited not just the 10 percent required under EO 1035, but the whole amount of the
just compensation that private respondent is entitled to. Thus, there is no any legal impediment
for the issuance of a writ of possession in favor of DTI. Precisely, the purpose of instituting
expropriation proceedings is to prevent petitioner from being ejected from the subject property;
otherwise, the above-mentioned absurd and circuitous rulings would arise.
9. City of Cebu v. Spouses Dedamo, G.R. No. 142971, May 7, 2002
FACTS: On 17 September 1993, petitioner City of Cebu filed a complaint for eminent domain
against respondents spouses Apolonio and Blasa Dedamo. The petitioner alleged therein that it
needed the land for a public purpose, i.e., for the construction of a public road which shall serve
as an access/relief road of Gorordo Avenue to extend to the General Maxilum Avenue and the
back of Magellan International Hotel Roads in Cebu City. The lower court fixed the amount of just
compensation at P20,826,339.50.
Petitioner alleged that the lower court erred in fixing the amount of just compensation at
P20,826,339.50. The just compensation should be based on the prevailing market price of the
property at the commencement of the expropriation proceedings.
The petitioner did not convince the Court of Appeals, which affirmed the lower court’s decision in
toto.
ISSUE: Whether or not just compensation should be determined as of the date of the filing of the
complaint.
HELD: NO. In the case at bar, the applicable law as to the point of reckoning for the
determination of just compensation is Section 19 of R.A. No. 7160, which expressly provides that
just compensation shall be determined as of the time of actual taking.
The petitioner has misread our ruling in The National Power Corp. vs. Court of Appeals. We did
not categorically rule in that case that just compensation should be determined as of the filing of
the complaint. We explicitly stated therein that although the general rule in determining just
compensation in eminent domain is the value of the property as of the date of the filing of the
complaint, the rule "admits of an exception: where this Court fixed the value of the property as of
the date it was taken and not at the date of the commencement of the expropriation
proceedings."
10. Spouses Ortega v. City of Cebu, G.R. No. 181562-63, October 2, 2009
Page 85 of 96
Doctrine:
It is well-settled in jurisprudence that the determination of just compensation is a judicial
prerogative.
11. BPI v. Court of Appeals, G.R. No. 160890, November 10, 2004
NATURE
Petition for review under Rule 45, assailing the CA Decision which reversed RTC Imus, Cavite
Decision reducing from P10,000.00 to P3,000.00 the amount of just compensation for the
expropriated land of BPI and decreasing from P10,000.00 to P3,000.00 the commissioners’ fee for
each of the three commissioners.
FACTS
- April 15, 1996 > NAPOCOR filed a Complaint for Eminent Domain, seeking to expropriate a
portion of BPI property in Barrio Bucal, Dasmariñas, Cavite, for the purpose of constructing and
maintaining its Dasmariñas-Zapote 230 KV Transmission Line Project.
- August 1, 1996 > pursuant to Sec 2 of Rule 67 RoC, NAPOCOR deposited with PNB in Quezon
City, P3,013.60 - equivalent to the assessed value of the property
- August 15, 1996 > NAPOCOR notified BPI, through registered mail, of its intention to take
possession of the property. Thereafter, the trial court granted their urgent ex-parte motion for
the issuance of a writ of possession and authorized them to enter and take possession of the
premises.
- Previously, BPI filed a motion for bill of particulars which the trial court denied. Consequently,
BPI moved for the dismissal of the case and the same was granted without prejudice to its
reinstatement.
- NAPOCOR filed an MFR. RTC granted the motion and reinstated the case.
- November 28, 1997 > In its Order , RTC designated 3 commissioners to determine the just value
of the property subject of the expropriation in this case
(1) Mr. Lamberto C. Parra, Provincial Assessor of Cavite
(2) Mr. Regalado Andaya, Municipal Assessor of Dasmariñas, Cavite
(3) Mr. Rodolfo D. Leonen, Defendant’s Representative
- February 26, 1999 > the Commissioners submitted its Report which assessed the sum of the area
of the property taken: 75.34 square meters (TIMES) estimated value of just compensation:
P10,000.00 = P753,400.00 and recommended an additional payment as severance damage:
P524,660.00 TOTAL: P1,278,060.00.
Likewise, they submitted an undated Commissioners’ Valuation Report citing the “Market Data
Approach” as the method used in arriving at the amount of P10,000.00 per square meter as just
compensation, whereby the value of the land is based on sales and listing of comparable property
registered within the immediate vicinity.
- August 5, 1999 > RTC rendered judgment in favor of BPI ordering NAPOCOR to pay (75.34 sqm x
P10,000 per sqm) P753,400.00 with legal rate of interest reckoned from the date of possession by
the plaintiff.
- After the denial of its motion for reconsideration, NAPOCOR appealed to CA, which REVERSED
the RTC decision. A new one is entered ordering NAPOCOR to pay BPI P3,000.00 per square meter
as just compensation for the expropriated land; and P3,000.00 commissioner’s fee to each of the
three (3) commissioners.
- BPI moved for the reconsideration of CA decision but the same was denied for lack of merit.
ISSUES
WON CA gravely abused its discretion and seriously erred in fixing the just compensation for the
subject property at P3,000.00 per square meter
HELD
.
NO
Ratio Just compensation is defined as the full and fair equivalent of the property taken from its
owner by the expropriator. The measure is not the taker’s gain, but the owner’s loss. To
compensate is to render something which is equal in value to that taken or received. The word
“just” is used to intensify the meaning of the word “compensation”; to convey the idea that the
equivalent to be rendered for the property taken shall be real, substantial, full, ample. In eminent
domain or expropriation proceedings, the general rule is that the just compensation which the
owner of condemned property is entitled to is the market value. Market value is “that sum of
money which a person desirous but not compelled to buy, and an owner willing but not
compelled to sell, would agree on as a price to be given and received therefor.”
Reasoning
- After a careful perusal of the records, we find no reason to disturb this finding of fact by the
Court of Appeals, sufficiently supported as it is, by the evidence on record.
> In this instance, we accord more weight to Resolution No. 08-95 promulgated by the Provincial
Appraisal Committee of Cavite held at the Office of the Provincial Assessor on October 25, 1995.
Said Resolution pegs as fair and reasonable the value of P3,000.00 per square meter of all the lots
in the Municipality of Dasmariñas, specifically along General Aguinaldo Highway.
> The just compensation is determined as of the date of the taking of the property or the filing of
the complaint whichever came first. NAPOCOR filed the complaint on April 15, 1996. A period of
6 months has elapsed from the valuation of the Provincial Assessors and the filing of the
complaint. We note the considerable discrepancy between the valuation of the former and that
of the Commissioners. Indeed, the appellate court computed the increase of the valuation to be
233%.
> The Court of Appeals pointed out that more than 70% of the 200 lot owners have entered into
compromise agreements and accepted the price set by the Provincial Appraisal Committee of
Cavite. It is also worthy to note that one of the Commissioners in this case, Mr. Lamberto C.
Parra, was the Chairman Provincial Assessor and signatory of the same Resolution.
Page 86 of 96
- We find that the rate imposed by the Commissioners is unsubstantiated. No official documents
were presented to reflect the true market value of the subject lots in the surrounding area. The
Commissioner’s Report merely states that the value of the land is based on sales and listings of
comparable property registered within the immediate vicinity without any evidence to support
the market data provided.
Disposition Petition for review on certiorari is DENIED. CA Decision which reversed RTC Decision
is AFFIRMED in toto.
12. Bardillon v. Barangay Masili, G.R. No. 146886, April 30, 2003
FACTS:
Two [C]omplaints for eminent domain were filed by herein respondent for the purpose of
expropriating the land owned by petitioner.
1st [C]omplaint [Civil Case No. 3648] was filed before the MTC on Feb. 23, 1998,
following the failure of Barangay Masili to reach an agreement with herein petitioner on the
purchase offer of P200,000.00. The expropriation of Lot 4381-D was being pursued in view of
providing Barangay Masili a multi-purpose hall for the use and benefit of its constituents.
MTC dismissed the case ‘for lack of interest’ for failure of the [respondent] and its
counsel to appear at the pre-trial.
2nd [C]omplaint [Civil Case No. 2845-99-C] was filed before RTC on October 18, 1999.
This [C]omplaint also sought the expropriation of the said Lot 4381-D. Petitioner, by way of a
Motion to Dismiss, opposed this [C]omplaint by alleging in the main respondent’s cause of action
is barred by prior judgment, pursuant to the doctrine of res judicata.
Judge denied petitioner’s Motion to Dismiss, holding that the MTC which ordered the
dismissal of Civil Case No. 3648 has no jurisdiction over the said expropriation proceeding. 2nd
complaint was ordered in favor of Barangay Masili.
Court of Appeals
CA held that RTC did not commit grave abuse of discretion in issuing the assailed Orders. It ruled
that the second Complaint for eminent domain was not barred by res judicata. The reason is that
the MTC had no jurisdiction over the action.
ISSUES:
1. Whether the MTC had jurisdiction over the expropriation case;
RULING:
No merit.
1.) Jurisdiction Over Expropriation
Petitioner’s claim: value of the land is only P11,448, the MTC had jurisdiction over the case.
CA: held that the assessed value of the property was P28,960. Thus, MTC did not have jurisdiction
over the expropriation proceedings, because the amount involved was beyond the P20,000
jurisdictional amount cognizable by MTCs.
An expropriation suit does not involve the recovery of a sum of money. Rather, it deals with the
exercise by the government of its authority and right to take property for public use. As such, it is
incapable of pecuniary estimation and should be filed with the regional trial courts regardless of
the value of the land.
Condemnation proceedings are within the jurisdiction of Courts of First Instance, the forerunners
of the regional trial courts. The Judiciary Act of 1948 which, like BP 129 in respect to RTCs,
provided that courts of first instance had original jurisdiction over ‘all civil actions in which the
subject of the litigation is not capable of pecuniary estimation’.
While it is true that 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.
Rule 68
FORECLOSURE OF REAL ESTATE MORTGAGE
Foreclosure of mortgage is the remedy available to the morgagee by which he subjects the
mortgage property to the stipulation of the obligation for which the mortgage was given.
Remedies available to the creditor secured by a mortgage are:
1. Demand specific performance of an obligation;
2. Foreclosure of the mortgage (judicial under Rule 68 or extrajudicial under Act No.
3135);
3. Simple action for collection (Bacrach Motor Co. vs. Carangal, 68 Phil. 287)
The rule is settled that a mortgage creditor may, in the recovery of a debt secured by real estate
mortgage, institute against the mortgage debtor either personal action for debt or a real action
to foreclose the mortgage. These remedies available to the creditor are deemed alternative not
cumulative. An election of one remedy operates as waiver of the other (Bacrach Motor Co. vs.
Carangal, 68 Phil. 287).
However, the rule will not bar the filing of another action for the recovery of the balance left
after the foreclosure sale of the mortgaged properties.
Given the fact that the proceeds of the auction sale were not sufficient to answer the entire
obligation of petitioners to respondent bank, the latter has the right to recover the balance due
it after applying the proceeds of the sale. We agree with the CA that where the mortgage
creditor chooses the remedy of foreclosure and the foreclosure sale are insufficient to cover
Page 87 of 96
the debt, the mortgagee is entitled to claim the deficiency from the debtor (Suico Rattan and
Buri Interiors, Inc. vs. CA, G.R. No. 133145).
Article 2088 of the Civil Code prohibits Pactum Commissorium.
The creditor cannot appropriate the things given by way of pledge or mortgage, or dispose them.
Any stipulation to the contrary is null and void.
Two kinds of foreclosure:
A first mortgagee is not a necessary party in the foreclosure of a second mortgage but he may be
joined or may intervene when the mortgage debt is already due (De Castro vs. IAC, 165 SCRA
654).
Effect of failure to implead second mortgagee
a. The foreclosure is ineffective against such subordinate lien holder with the result
that there remains in time an unforeclosed equity of redemption.
b. The remedy is a separate foreclosure proceeding to require them to redeem from
the first mortgagee, or the party acquiring title to the mortgaged property at the
forclosure sale, within 90 days (Looyuko vs. CA, supra

Judicial Foreclosure Extrajudicial Foreclosure Section 2. Judgment on foreclosure for payment or sale. —
Requires court intervention No court intervention If upon the trial in such action the court shall find the facts set forth in the complaint to be true
Only equity of redemption Right of redemption a. it shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation,
Governed by Rule 68 Governed by Act 3135 including interest and other charges as approved by the court, and costs, and
There could be deficiency judgment There is no deficiency judgment b. shall render judgment for the sum so found due and order that the same be paid to
Recovery of deficiency by mere motion Recovery of deficiency through independent the court or to the judgment obligee within a period of not less than ninety (90) days
action nor more than one hundred twenty (120) days from the entry of judgment, and that in
default of such payment the property shall be sold at public auction to satisfy the
judgment. (2a)
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
Equity of Redemption Right of Redemption
a. the date and due execution of the mortgage;
b. its assignments, if any; Right of defendant mortgagor to Right of the debtor to redeem
c. the names and residences of the mortgagor and the mortgagee; extinguish the mortgage and the property within 1 year from
d. a description of the mortgaged property; retain ownership of the property registration of the Sheriff’s
e. a statement of the date of the note or other documentary evidence of the obligation by paying the debt within 90-120 certificate of foreclosure sale in
days after entry of judgment or an extrajudicial foreclosure
secured by the mortgage, the amount claimed to be unpaid thereon;
f. and the names and residences of all persons having or claiming an interest in the even after the foreclosure sale under Act 3135.
but prior to confirmation, in the
property subordinate in right to that of the holder of the mortgage, all of whom shall
be made defendants in the action. (1a) case of judicial foreclosure under
Rule 68.
Parties in Foreclosure suit Where a mortgaged is foreclosed extrajudicially, act 3135 grants to the mortgagor the right of
The following must be joined as defendants: redemption within 1 year from registration of the sheriff’s certificate of foreclosure sale. Where
1. The persons obligated to pay the mortgaged. the foreclosure is judicially effected, however, no equivalent right of redemption exists, except
2. The persons who own, occupy or control the mortgaged premises or only where the mortgagee is the Philippine National bank or a bank or banking institution
any other part thereof (Soriano vs. Enriquez, 24 Phil. 584). (Huerta Alba resort Inc. vs. CA, G.R. No. 128667).
3. The transferee or grantee of the property.
4. The second mortgagee or junior encumbrancer. Section 3. Sale of mortgaged property; effect. —
5. The mortgagor.
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,
Equitable mortgage is one which although lacking in some formality, or form or words, or other
requisites demanded by a statute, nevertheless reveals intention of the parties to change real -the court, upon motion shall order the property to be sold in the manner and under
property as security for a debt, and contains nothing impossible or contrary to law (Sps. Sibug vs. the provisions of Rule 39 and other regulations governing sales of real estate under execution.
Sps. Suba, G.R. No. 137792) Such sale shall not affect the rights of persons holding prior encumbrances upon the property or
a part thereof, and when confirmed by an order of the court, also upon motion, it shall operate
A subordinate lien holder is a proper, even a necessary, but not an indispensable, party to a to divest the rights in the property of all the parties to the action and to vest their rights in the
foreclosure proceeding (Looyuko vs. CA, G.R. No.102696). purchaser, subject to such rights of redemption as may be allowed by law.

Page 88 of 96
Upon the finality of the order of confirmation or upon the expiration of the period of redemption
when allowed by law, the purchaser at the auction sale or last redemptioner, if any,
a. shall be entitled to the possession of the property unless a third party is actually
holding the same adversely to the judgment obligor
b. said purchaser or last redemptioner may secure a writ of possession, upon motion,
from the court which ordered the foreclosure. (3a)
Three kinds of sale:
Rule 39 Rule 68 Act 3135
Ordinary execution sale Judicial foreclosure sale Extrajudicial foreclosure sale
(Monzon vs. Sps. Nieves, G.R. No. 171827)
After the sale of mortgaged property and before its confirmation, the court may still grant the
judgment debtor an opportunity to pay the amount of judgment.
Notice and hearing of a motion for confirmation are essential to the validity of the order of
confirmation, not only to enable the interested parties to resist the motion but also to inform
them of the time when the right of redemption is cut off (Tiglao vs. Botones, 90 Phil 275).
Section 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 mortgagee, and when there shall be
any balance or residue, after paying off the mortgage debt due, the same shall be paid to junior
encumbrancers in the order of their priority, to be ascertained by the court, or if there be no
such encumbrancers or there be a balance or residue after payment to them, then to the
mortgagor or his duly authorized agent, or to the person entitled to it. (4a)
Disposition of the proceeds of the sale in foreclosure shall be as follows:
a. First, pay the costs to court;
b. Second, pay off the mortgage debt;
c. Third, pay the junior encumbrances, if any in the order of priority;
d. Give the balance to the mortgagor, his agent or person entitled to it.
(Suico vs. PNB, G.R. No. 170215, August 28, 2007)
Section 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 shall terminate; and afterwards as often as more becomes due for
principal or interest and other valid charges, the court may, on motion, order more to be sold.
But if the property cannot be sold in portions without prejudice to the parties, the whole shall be
ordered to be sold in the first instance, and the entire debt and costs shall be paid, if the
proceeds of the sale be sufficient therefor, there being a rebate of interest where such rebate is
proper. (5a)
If the debt for which the mortgage or encumbrance was held is not all due
a. the sale shall terminate
b. the court may, on motion, order more to be sold
If the property cannot be sold in portions without prejudice to the parties
a. the whole shall be ordered to be sold
b. proceeds of the sale be paid to the entire debt and costs
Section 6. Deficiency judgment. — If upon the sale of any real property as provided in the next
preceding section there be a balance due to the plaintiff after applying the proceeds of the sale,
the court, upon motion, shall render judgment against the defendant for any such balance for
which, by the record of the case, he may be 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. (6a)
Deficiency judgment is a judgment by the court upon motion and showing that the proceeds
from the sale of the property are not sufficient for the payment of the judgment debt.
When may a deficiency judgment not rendered?
There are 3 instances:
1. Where the mortgagor mortgaged his property to secure the debt of another
without assuming personal liability for such debt (Philippine Trust Co. vs. Echaus
Tan siva, 52 phil. 852).
2. Where the mortgagor is a non resident who failed to submit himself to the
jurisdiction of the court. Deficiency judgment cannot be rendered against a non-
resident defendant (Banco Espanol Filipino vs. Palanca, 37 Phil. 921).
3. Where the mortgagor dies after the rendition of the judgment of foreclosure.
A motion for deficiency judgment may be made only after the sale and after it becomes known
that the deficiency exists.
Section 7. Registration. — A certified copy of the final order of the court confirming the sale
shall be registered in the registry of deeds.
If no right of redemption exists
a. the certificate of title in the name of the mortgagor shall be cancelled and;
b. a new one issued in the name of the purchaser
Where a right of redemption exists
a. the certificate of title in the name of the mortgagor shall not be cancelled
b. the certificate of sale and the order confirming the sale shall be registered
c. a brief memorandum made by the registrar of deeds upon the certificate of title
shall be registered
In the event the property is redeemed
a. the deed of redemption shall be registered with the registry of
deeds
b. a brief memorandum thereof shall be made by the registrar of
deeds on said certificate of title
Page 89 of 96
If the property is not redeemed
-the final deed of sale executed by the sheriff in favor of the purchaser at the Procedure in Partition
foreclosure sale shall be registered with the registry of deeds; whereupon the certificate of title
in the name of the mortgagor shall be cancelled and a new one issued in the name of the FIRST STAGE: Determination of Ownership
purchaser. (n)
1. Filing of complaint after payment of docket and other lawful fee.
Section 8. Applicability of other provisions. — The provisions of sections 31, 32 and 34 of Rule 39 2. Filing of answer and other pleading
shall be applicable to the judicial foreclosure of real estate mortgages under this Rule insofar as 3. Court issue order of partition.
the former are not inconsistent with or may serve to supplement the provisions of the latter.
(8a) SECOND STAGE: Actual physical partition

If parties can agree –

RULE 69 1. Preparation of instrument of partition;
PARTITION 2. Court issue order of partition.

Partitiion, defined If parties cannot agree –

1. Court appoints at least three (3) commissioners;
Partition is a division between two or more persons or real or personal property which 2. Commissioners take oath of office;
they own as co-partners, joint tenants or tenants in common effected by the setting apart of 3. Commissioners receive evidence from parties, conduct ocular
such interest so that they may enjoy it in severality or by a sale of the whole and awarding to inspection;
each of his share of the proceeds. 4. Submission of Commissioners report to the Court;
5. The Clerk of Court shall serve copies of the report to parties;
Purpose of partition 6. Filing of objections on the Commissioner’ report within (10) days from
service of the report;
To separate, divide and assign a thing held in common to those whom it may belong. 7. Court issue order disposing Commissioners’ report, recommit to the
Commissioners, set aside the report or appoint new commissioners,
Note: An action for partition does not prescribe, as long as the co-ownership still exist, accept the past report and reject part of it. (Sec. 6 & 7, Rue 69)
and it will lie at anytime. (Bicarme vs. CA, et al. G.R. No. L-51914, June 6,1990.186 SCRA 294).
RULE 70
Kinds of partition FORCIBLE ENTRY AND UNLAWFUL DETAINER

1. Judicial partition –Rule 69

2. Extra judicial Partition- no court intervention Forcible Entry, defined

Modes of Partition Forcible Entry is a special civil action to recover material or physical possession of real
property when the plaintiff’s deprivation of possession to his real property is through force,
1. Voluntary if by act of the co-owners intimidation, strategy, threat or stealth (FISTS). It is founded upon illegal occupation from the
2. Compulsory if by judicial proceedings. very beginning. [Example- Squatting]
(Africa vs, Africa, 42 Phil. 902)
Action for Unlawful Detainer, defined
Parties
Unlawful detainer is a special civil action to recover material or physical possession of
All co-owners are indispensable parties real property from a person unlawfully detaining the same as tenant, or other person. It is
founded on unlawful detention by a person who originally acquired possession of the real
Non- inclusion of a Co- owner property lawfully. (Medel vs. Militante, 41 Phil. 44).

1. Before Judgment- not a ground for motion to dismiss; remedy is to file a motion to Three kinds actions for the recovery of possession of real property:
include the party.
2. After Judgment–Judgment is void because co wners are indispensable parties.
Page 90 of 96
 1. Accioninterdictal, or an ejectment proceeding which may be either that for forcible
entry (detentacion) or unlawful detainer (desahucio), which is a summary action for
the recovery of physical possession where the dispossession has not lasted for more
than one year, and should be brought in the proper inferior court.
2. Accionpubliciana or the plenary action for the recovery of the real right of possession,
which should be brought in the proper Regional Trial Court when the dispossession has
lasted for more than one year, (VictorianoEncarnacion vs. Nieves Amigo),and
Jurisdiction
Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Courts shall
have exclusive original jurisdiction over cases of forcible entry and unlawful detainer.
Inferior courts have jurisdiction to resolve the question of ownership raised as an
incident in an ejectment case where a determination thereof is necessary for a proper and
complete adjudication of the issue of possession. (SpsRefugia vs. CA).

3. Action reinvindicatoria which is an action for the recovery of ownership which must be Note: A pending civil action involving ownership of the same property does not justify
brought in the proper Regional Trial Court. the suspension of the ejectment proceedings. (Sps. Barnachea vs. CA).

Kinds of Ejectment Case Absence of Title over the disputed property will not divest the Courts of jurisdiction to
resolve the issue of possession. (Pajuyo vs. Ca and Guevarra).
1. Action of Forcible Entry
2. Action for Unlawful Detainer Rule on Execution of Judgment In Ejectment Cases

General Rule: After court (MTC) rendered judgment, execution may issue immediately.
Note:
Exception: Execution may not issue if the defendant –
1. Both actions must be brought within one (1) year in the city or municipality where
the property is located (Refugia vs. CA, July 23, 1992) within one (1) year from the 1. Perfected an appeal;
time possession became unlawful. Example: Expiration of one year (1) year lease 2. Put up supersedeasbond to stay execution; and
contract. (Benitez vs. CA, Jan 16,1977): 3. Deposits rental due during the pendency of appeal. (Aznar Bros. Realty Co. vs. CA,
2. The issue involved is material or physical possession or de facto and not juridical March 7, 2000 and Chua, et al vs. CA, et al, Feb.24, 1998).
possession or de jure. (Refugia vs. CA, Supra).

Note: Any one of the co – owners may bring an action in ejectment. (Sps. Mendoza vs. Coronel). Distinction between

Issue to be determined FORCIBLE ENTRY UNLAWFUL DETAINER

1. Possession of the defendant over 1. Possession of the defendant is
In unlawful detainer and forcible entry cases, the only issue to be determined is who the land or building is unlawful from initially lawful but it becomes
between the contending parties has better possession of the contested property. (A. Bejar vs. the very beginning thru FISTS. unlawful by reason of termination
Caluag, supra) 2. Formal demand to vacate is not of his right to the possession.
required. 2. Formal demand is required.
It is only where there has been forcible entry that as a matter of public policy the right 3. Plaintiff must prove that he was in
to physical possession should be immediately set at rest in favor of the prior possession prior physical possession of the 3.Plaintiff need not have prior physical
regardless of the fact that the other party might ultimately be found to have superior claim to premises until he was deprived of possession. (Benitez vs. CA, Jan. 16,
the premises involved thereby to discourage any attempt to recover possession thru the possession by the defendant; 1977).
force,strategy or stealth and without resorting to the courts. (Victoria Fernando vs. SpsLim ) (Javelosa vs. CA, Dec. 10,1996)
4. The one (1) year period is generally
Other Provisional Remedies Available counted from the date of actual 4. The one (1) year period is counted
entry on the land. from the last demand. (Caniza,et al vs.
1. Writ of preliminary Injunction – to prevent the defendant from committing further acts CA, Feb. 27,1997 and Munoz, et al vs. CA,
of disposition against plaintiff. et al, Sept. 23,1992).
2. Writ of Preliminary Mandatory Injunction – to restore the plaintiff in his possession, to
be filed within ten (10) days from filing of complaint, the court shall decide the motion
within 30 days. (Sec. 10, Rule 70).

Page 91 of 96
Note: All cases of forcible entry and unlawful detainer are governed by the 1991 Revised Rules
on Summary Proceedings.

Contempt is a disregard of or disobedience to the rules or orders of a judicial body, or an

interruption of its proceedings by disorderly behavior or insolent language, in its presence or so
near thereto as to disturb the proceedings or to impair the respect due to such body.

Contempt of court is disobedience to the court by acting in opposition to its authority, justice
and dignity. It signifies not only a willful disregard or disobedience of the court’s orders but al so
conduct tending to bring the authority of the court and the administration of law into disrepute
or, in some manner to impede the due administration of justice.
The reason for the power to punish for contempt is that respect of the courts guarantees the
stability of their institution. Without such guarantee, said institution would be resting on shaky
foundation.
I is inherent in all courts,; its existence is essential to the preservation of order in judicial
proceedings, orders and mandates of the courts, and consequently, to the due administration of
justice.
Contempt proceeding has dual function:
1. Vindication of public interest by punishment of contemptuous conduct; and
2. Coercion to compel the contemnor to do what the law requires him to uphold the
power of the Court, and also to secure the rights of the parties to a suit awarded by
the Court

Kinds of contempt, purpose and nature of each:

1. Civil or criminal, depending on the nature and effect of the contemptuous act
2. Direct or indirect, according to the manner of commission

Civil contempt Criminal contempt

It is the failure to do
something ordered to be
done by a court or a judge
for the benefit of the
opposing party therein and
is therefore an offense
against the party in whose
behalf the violated order
was made
The purpose is to
compensate for the benefit
of a party
The rules of procedure
governing contempt
proceedings or criminal
prosecutions ordinarily are
inapplicable to civil
contempt proceedings
It is a conduct directed against
the authority and dignity of the
court or a judge acting judicially;
it is an obstructing the
administration of justice which
tends to bring the court into
disrepute or disrespect
The purpose is to punish, to
vindicate the authority of the
court and protect its outraged
dignity
Should be conducted in
accordance with the principle and
rules applicable to criminal cases,
insofar as such procedure is
consistent with the summary
nature of contempt proceedings

Page 92 of 96
 Direct contempt
In general is committed in the presence of or so near
the court or judge performing the judicial function as
to obstruct or interrupt the proceedings before it
Acts constituting direct contempt are
a. Misbehavior in the presence of or so
near the court as to obstruct or
interrupt the proceedings before it
b. Disrespect toward the court
c. Offensive personalities towards others
d. Refusal to be sworn as witness or to
answer as a witness
e. Refusal to subscribe an affidavit or
deposition when lawfully required to do
so
f. Acts of party or a counsel which
constitute willful and deliberate forum
shopping
g. Unfounded accusations or allegations
or words in a pleading tending to
embarrass the court or to bring it into
disrepute
Indirect contempt
Remedy
It is not committed in the presence of the court against contempt, penalty
but done
at a distance which tends to belittle, degrade, obstruct or
embarrass the court and justice The punishment for indirect contempt depends upon the level of the court against which the act
was commited:
Acts constituting indirect contempt are:a. after a charge
in writing has been filed, and an opportunity given to th
respondent to comment thereon within such period a. Whereas the act was committed against an RTC or a court of equivalent or higher rank,
may be fixed by the court and to be heard by himselfheormay be punished by a fine not exceeding 30,000 or imprisonment not exceeding 6
counsel, a person guilty of any of the following acts maymonths, or both
be punished for indirect contempt:
a. Misbehavior towards an officer of a court in
b. Where the act was committed against a lower court, he may be punished by a fine not
the performance of his official duties or in his
official transactions exceeding 5,000 or imprisonment not exceeding 1 month, or both. Aside from the
b. Disobedience of or resistance to a lawful writ,applicable penalityies, if the contempt consists in the violation of a writ of injunction,
process, order, or judgment of a court, TRO or status quo order, he may
including the act of a person who, after being
dispossess or ejected from any real propertyalso
by be ordered to make complete restitution to the party injured by such
the judgment or process of any court of
competent jurisdiction, enters or attempts or
c. violation of the property involved or such amount as may be alleged and proved
induces another to enter into or upon such
reason property, for the prupose of executing
acts of ownership or possession, ord.in any Where the act was committed against a person or entity exercising quasi-judicial
manner disturbs the possession given to functions,
the the penalty imposed shall depend upon the provisions of the law which
person adjudged to be entitled thereto authorizes a penalty for contempt against such persons or entities
c. Any abuse of or any unlawdul interference
with the processes or proceedings of The a court
person adjudged in indirect contempt may appeal from the judgment or final order of
not constituting direct contempt underthesection
court in the same manner as in criminal cases. The appeal will not however have an
1 of rule 71 effect of suspending the judgment if the person adjudged in contempt does not file a bong
d. Any improper conduct tending, directly or
in an amount fixed by the court from which the appeal is taken. This bond is conditions
indirectly, to impede obstruct, or degrade
uponthe his performance of the judgment or final order if the appeal is decided against.
administration of justice How contempt proceeding are commenced
e. Assuming to be an attorney or an officer of a
Proceedings for indirect contempt may be initiated motu proprio by the court against which
court, and acting as such without authority
the contempt was committed by an order or any other formal charge requiring the
f. Failure to obey a subpoena duly servedrespondent to show cause why he should not be punished for contempt
g. The rescue of attempted rescue, of a person or
In all other cases, charges for indirect contempt shall be commence by a verified petition
property in the custody of an officerwith of supporting
the particular and certified true copies of documents or paper involved therein,
court by virtue of an order or process and ofupona full compliance with the requirements for filing initiatory compliance with the
court held by him requirements for filing initiatory pleadings for civil actions in the court concerned, the
h. Failure by counsel to inform the courtpetition
of the for contempt shall allege that fact but said petition shall be docketed, heard and
death of his client constitutes decided indirect separately, unless the court in its discretion orders the consolidation of the
contempt within the purviews of Sec. 3contempt
of this charge and the principal action for joint hearing and decision
rule since it constitutes improper When conduct imprisonment shall be imposed
tending to impede the administration ofjustice
When the contempt consists in the refusal or omission to do an act which is yet in the
power of the respondent to perform, he may be imprisoned by the order of the court
concerned until he performs it
 Indefinite incarceration may be resorted to where the attendant circumstance are such
that the non-compliance of the authority of the court which has then no other
recourse but to use its coercive power
Page 93 of 96
Cases:
1. BPI vs CALANZA G.R. no. 180699
Finally, Sheriff Paredes, in serving the notice of sale, was only performing his duty
pursuant to the writ of execution. No matter how erroneous the writ was, it was issued
by LA Calanza and was addressed to him as the sheriff, commanding him to collect
from petitioner the amount due Enriquez and Sia. In the event he failed to collect the
amount, he was authorized to cause the satisfaction of the same on the movable and
immovable properties of petitioner not exempt from execution.29 Thus, any act
performed by Sheriff Paredes pursuant to the aforesaid writ cannot be considered
contemptuous. At the time of the service of the notice of sale, there was no order from
any court or tribunal restraining him from enforcing the writ. It was ministerial duty for
him to implement it.
To be considered contemptuous, an act must be clearly contrary to or prohibited by
the order of the court or tribunal. A person cannot, for disobedience, be punished for
contempt unless the act which is forbidden or required to be done is clearly and
exactly defined, so that there can be no reasonable doubt or uncertainty as to what
specific act or thing is forbidden or required
2. PEOPLE OF THE PHILIPPINES VS GODOY G.R. NOS. 115908-09
Whether or not the Same Contemptuous Conduct of a Member of the Bar can be the
Subject of both a Contempt Proceeding and an Administrative Disciplinary Action
The basic rule here is that 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 suchoffice. The principal purpose of the exercise of the power to cite
for contempt is to safeguard the functions of the court and should thus be used
sparingly on a preservative and not, on the vindictive principle. The principal purpose
of the exercise of disciplinary authority by the Supreme Court is to assure respect for
orders of such court by attorneys who, as much as judges, are responsible for the
orderly administration of justice.
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. Contempt of court is
governed by the procedures laid down under Rule 71 of the Rules of Court, whereas
disciplinary actions in the Practice of law are governed by file 138 and 139 thereof.
Although apparently different in legal bases, the authority to punish for contempt and
to discipline lawyers are both inherent in the Supreme Court and are equally incidents
of the court's basic power to oversee the proper administration of justice and the
orderly discharge of judicial functions. As was succinctly expounded in Zaldivar vs.
Sandiganbayan, et al.: 82
There are, in other words, two (2) related powers which come into play in cases like
that before us here: the Court's inherent power to discipline attorneys and the
contempt power. The disciplinary authority of the Court over members of the Bar is
broader than the power to punish for contempt. Contempt of court may be committed
both by lawyers and non-lawyers, both in and out of court. Frequently, where the
contemnor is a lawyer, the contumacious conduct also constitutes professional
misconduct which calls into play the disciplinary authority of the Supreme Court.
Where the respondent is a lawyer, however, the Supreme Court's disciplinary authority
over lawyers may come into play whether or not the misconduct with which the
respondent is charged also constitutes contempt of court. The power to punish for
contempt of court does not exhaust the scope of disciplinary authority of the Court
over lawyers. The disciplinary authority of the Court over members of the Bar is but
corollary to the court's exclusive power of admission to the bar. A lawyer is not merely
a professional but also an officer of the court and as such, he is called upon to share in
the task and responsibilities of dispensing justice and resolving disputes in society. Any
act on his part which visibly tends to obstruct, pervert, or impede and degrade the
administration of justice constitutes both professional misconduct calling for the
exercise of disciplinary action against him, and contumacious conduct warranting
application of the contempt power.
3. In Re: Conviction of Judge Adoracion G. Angeles, RTC, Br. 121, Caloocan City in Crim.
Cases Q-97-69655 to 56 for Child Abuse
Contempt of court is a defiance of the authority, justice or dignity of the court, such
conduct as tends to bring the authority and administration of the law into disrespect or
to interfere with or prejudice parties, litigant or their witnesses during litigation.
There are two kinds of contempt punishable by law: direct contempt and indirect
contempt. Direct contempt is committed when a person is guilty of misbehavior in the
presence of or so near a court as to obstruct or interrupt the proceedings before the
same, including disrespect toward the court, offensive personalities toward others, or
refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition
when lawfully required to do so. Indirect contempt or constructive contempt is that
which is committed out of the presence of the court. Any improper conduct tending,
directly or indirectly, to impede, obstruct, or degrade the administration of justice
would constitute indirect contempt.5
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 A pleading containing derogatory, offensive or malicious statements submitted before
a court or judge where the proceedings are pending constitutes direct contempt,
because it is equivalent to misbehavior committed in the presence of or so near a
court or judge as to interrupt the administration of justice. 6 In this regard, respondent
committed a serious blunder when he cited complainant for indirect contempt.
Compounding this blunder, even if we assume that complainant's unfounded and
contumacious statements in his pleadings translate to indirect contempt as
respondent mistakenly believed, respondent failed to follow the proper procedure
therefor7 under Section 4 of Rule 71 of the Revised Rules of Civil Procedure, which
particularly provides:
SEC. 4. How proceedings commenced. — Proceedings for indirect contempt may be
initiated motu proprio 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 cases, charges 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 court, the petition for contempt shall
allege that fact but said petition shall be docketed, heard and decided separately,
unless the court in its discretion orders the consolidation of the contempt charge and
the principal action for joint hearing and decision.
As correctly observed by the OCA, there was no order issued by respondent for the
charge of indirect contempt against complainant to be docketed separately; neither
was there an order that the said charge be consolidated with the principal action. In
sum, respondent simply incorporated or integrated the proceedings for indirect
contempt with the principal case. This fortifies the OCA’s finding that respondent is
grossly ignorant of basic procedure.8 When the law is so elementary, such as the
provisions of the Rules of Court, not to know, or to act as if one does not know the
same, constitutes gross ignorance of the law.
It is well settled that the power to punish a person in contempt of court is inherent in
all courts to preserve order in judicial proceedings and to uphold the orderly
administration of justice. However, judges are enjoined to exercise the power
judiciously and sparingly, with utmost restraint, and with the end in view of utilizing
the same for correction and preservation of the dignity of the court, and not for
retaliation or vindictiveness.11 It bears stressing that the power to declare a person in
contempt of court must be exercised on the preservative, not the vindictive, principle;
and on the corrective, not the retaliatory, idea of punishment.
4. In the matter of the contempt orders against lt. gen. jose m. calimlim and atty.
Domingo a. doctor G.R. NO. 141668
Proper Procedure for Indirect Contempt
o First, there must be an order requiring the respondent to show cause why he
should not be cited for contempt.
o Second, the respondent must be given the opportunity to comment on the
charge against him.
o Third, there must be a hearing and the court must investigate the charge and
consider respondent’s answer. Finally, only if found guilty will respondent be
punished accordingly.
In this case, Judge Cruz-Avisado failed to observe the proper procedure in the exercise of the
power to punish for indirect contempt. First, there can be no indirect contempt absent any prior
written charge. In the 19 November 1999 Order, Judge Cruz-Avisado only ordered petitioners to
explain their failure to bring Pitao before the RTC for his scheduled arraignment. The 19
November 1999 Order did not yet amount to a show-cause order directing petitioners to explain
why they should not be cited for indirect contempt. Absent an order specifically requiring
petitioners to show cause why they should not be punished for contempt, Judge Cruz-Avisado
had no authority to punish petitioners.
Second, if the answer to the contempt charge is satisfactory, the contempt proceedings end.
Even if we consider the 19 November 1999 Order sufficient to charge petitioners with indirect
contempt, petitioners still could not be punished for contempt because Judge Cruz-Avisado
found petitioners’ explanation satisfactory. Only in cases of clear and contumacious refusal to
obey should the power to punish for contempt be exercised. Absent any finding that petitioners
contumaciously refused to comply with the orders of the RTC, Judge Cruz-Avisado had no reason
to punish petitioners for indirect contempt.
Lastly, there must be a hearing conducted on the contempt charge. In this case, no hearing was
ever conducted. After receiving petitioners’ Compliance, Judge Cruz-Avisado immediately issued
the 11 December 1999 Order. Petitioners were not afforded full and real opportunity to be
heard. Since a contempt charge partakes of the nature of a criminal prosecution and follows the
proceedings similar to criminal prosecution, judges must extend to the alleged contemnor the
same rights accorded to an accused. Judge Cruz-Avisado should have given petitioners their day
in court and considered the testimony and evidence petitioners might offer.
Proper Penalty for Indirect Contempt
Section 7, Rule 71 of the Rules of Court provides the penalty for indirect contempt. Section 7 of
Rule 71 reads:
SEC. 7. Punishment for indirect contempt. - If the respondent is adjudged guilty of
indirect contempt committed against a Regional Trial Court or a court of equivalent or
higher rank, he may be punished by a fine not exceeding thirty thousand pesos or
imprisonment not exceeding six (6) months, or both. x x x
Indeed, the Rules do not provide that reprimand and admonition may be imposed on one found
guilty of indirect contempt.
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However, in Racines v. Judge Morallos, the Court, after finding Jaime Racines (Racines) guilty of
indirect contempt, merely reprimanded Racines because "he is not learned in the intricacies of
law." Therefore, the courts may impose a penalty less than what is provided under the Rules if
the circumstances merit such.

In this case, if petitioners were found guilty of indirect contempt, Judge Cruz-Avisado may
penalize them with reprimand. However, since the proper procedure for indirect contempt was
not followed, Judge Cruz-Avisado’s Orders to reprimand Atty. Doctor, Jr. had no legal basis.

On the other hand, admonition is not a penalty but merely a warning. Judge Cruz-Avisado may
admonish Lt. Gen. Calimlim for the failure to comply with the RTC’s 4 November 1999 Order.
Judge Cruz-Avisado may make such admonition even in the absence of contempt proceedings.

Judges are reminded that the power to punish for contempt should be used sparingly and only in
cases of clear and contumacious refusal to obey should the power be exercised. The power to
punish for contempt must also be used with due regard to the provisions of the law and the
constitutional rights of the individual.

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