Consolidate Remedial Law Review 2 Transcribed Notes: Provisional Remedies To Special Proceedings

CONSOLIDATE REMEDIAL LAW REVIEW 2
TRANSCRIBED NOTES: PROVISIONAL How to secure the judgment?

REMEDIES TO SPECIAL PROCEEDINGS - To secure such judgement satisfied or
enforced, if the applicant gets a favorable
judgment
PROVISIONAL REMEDIES
Who can grant a provisional remedy?
Provisional Remedies are described or characterized - Only the court before which the main action
as temporary, auxiliary, and ancillary remedies. is pending can grant a provisional remedy.
This is because a provisional remedy is an
Why are provisional remedies characterized as ancillary remedy.
temporary remedies?
- They are available only during a certain
period.
RULE 57: PRELIMINARY ATTACHMENT
When are provisional remedies available to party?
- Available only during the pendency which When may a writ of preliminary attachment may be
start upon filing of the action. applied?
- Once the action is terminated, provisional - A preliminary attachment may be applied
remedies are no longer available. from the commencement of the action and
any time before and entry of judgment.
Why are provisional remedies characterized as
auxiliary remedies?
- They help parties to obtain reliefs that they How is a civil action commenced?
are seeking in the main action. - By filing of the complaint
- They provide additional support but it is not
the ultimate relief prayed for. When may be the earliest time a writ of preliminary
attachment be applied for?
In what way provisional remedies help a party in an
- At the time that the plaintiff files the
action?
- While provisional remedies are not the complaint.
ultimate remedy sought by a party they help
a party obtain those final and ultimate May the application for the writ of preliminary
remedies he is seeking in the main action. attachment be incorporated in the complaint?
- Yes. From the time of the filing of the
Why are provisional remedies characterized as
complaint, the writ of preliminary attachment
ancillary remedy?
- They are dependent or attached to principal may be applied for and at any time before
actions. entry of judgment.
- They are mere incidents of the principal
actions which cannot exist or be separated or What is referred to by entry of judgment?
independent from the main actions before the - It refers to the exact time when the period to
court accord the parties provisional appeal has expired and no appeal has been
remedies.
filed.
- There must be a pending main action.
What are the purposes of provisional remedies What happens when the period to appeal for all the
applied for? parties has expired and no appeal has been
1) To protect and preserve the rights of interest perfected?
of applicant during pendency of the action. - The judgment becomes final and executory.
2) To secure the judgement
3) To preserve and maintain the subject matter
Entry of judgment – refers to the exact date when the
of the action pendency of action
judgment becomes final and executory.
4) To preserve the status quo during pendency
of action
________________________________
Remedial Law Review 2: Provisional Remedies to Special Proceedings (2nd Semester, A.Y. 2020-2021)
Consolidated TSN by: Irish Baula | Imelda Garcia | Neil Garde | Arrah Quevedo-Ignacio | Dana Reyes | Mikee Rualo | Tin Sampang-Bansol | Zet Trinidad
Page 1 of 75
Rendition of judgment – refers to judgment rendered c) In an action to recover the possession of
when a written copy of the judgment is directly and property unjustly or fraudulently taken,
personally filed by the judge, stating clearly and detained or converted, when the property, or
distinctively the facts and law on which an action is any part thereof, has been concealed,
based, and signed by the judge and file with clerk of removed, or disposed of to prevent its being
court. (Judgment becomes final) found or taken by the applicant or an
authorized person;
Which party may apply for a writ of preliminary
attachment? d) In an action against a party who has been
guilty of a fraud in contracting the debt or
- The plaintiff or other proper parties.
incurring the obligation upon which the action
is brought, or in the performance thereof;
Who are the “other proper properties” referred to?
1) Third party plaintiff (defendant in the main e) In an action against a party who has removed
action) or disposed of his property, or is about to do
2) Counter claimant so, with intent to defraud his creditors; or
3) Cross claimant
f) In an action against a party who does not
reside and is not found in the Philippines, or
Can a defendant apply for a writ of preliminary on whom summons may be served by
attachment? publication.
- Not necessarily. He may apply if he filed a
cross claim against his co-defendant or a What is required for the plaintiff for the court to grant
counter claim against the plaintiff. his/her application for a writ of preliminary attachment
in an action when the defendant either committed
When is an attachment lien on the property of the fraud in contracting debt or fraud in the performance
defendant which has been attached in a writ of of the obligation?
preliminary attachment continue to subsist? - The applicant must sufficiently show the
- It will still continue until the execution of the factual circumstances of the alleged fraud
judgment. because fraudulent intent cannot be inferred
- It will continue to exist until the debt of the from the debtor's mere non-payment of the
defendant or the judgment or the attachment debt or failure to comply with his obligation.
is satisfied (Lim vs. Lazaro). The applicant must then be able to
demonstrate that the debtor has intended to
In what grounds may a writ of preliminary attachment defraud the creditor (Alejandro Ng Wee vs.
be applied? (R57, Sec 1) Tankiansee).
a) In an action for the recovery of a specified

May a court grant a writ of preliminary attachment
amount of money or damages, other than
moral and exemplary, on a cause of action without notice and hearing?
arising from law, contract, quasi-contract, - Yes, because the court has yet to acquire
delict or quasi-delict against a party who is jurisdiction.
about to depart from the Philippines with
intent to defraud his creditors; May a writ of preliminary attachment which was
issued ex parte, before summon is served be
b) In an action for money or property embezzled enforced and served on defendant without a prior or
or fraudulently misapplied or converted to his contemporaneous service?
own use by a public officer, or an officer of a - No, because all applications for provisional
corporation, or an attorney, factor, broker, remedies must be verified.
agent, or clerk, in the course of his - A writ of preliminary attachment may be
employment as such, or by any other person applied upon filing of the complaint and done
in a fiduciary capacity, or for a willful violation ex parte without the court having no
of duty; jurisdiction to the defendant.
________________________________
Page 2 of 75
Procedure: 4) Defendant may show to the court that his/her
1) Application for a writ of preliminary property that was attached is exempt from
attachment and the court’s issuance of an attachment/execution.
order granting the application of a writ of
preliminary attachment
2) Issuance of a writ of preliminary attachment What if the writ of preliminary attachment has been
(done ex parte; no need for notice & hearing) issued but the property of the defendant has not been
3) Enforcement of a writ of preliminary attached, may the defendant prevent the attachment
attachment (cannot be done ex parte; needs of his/her property?
a prior and contemporaneous service) - Yes, by making a deposit or counter bond in
an amount equivalent to the claim fixed by the
GR: Enforcement or implementation should be done
court in the order attachment.
with prior or contemporaneous service of summons
EXP: Instances a writ of preliminary attachment be

enforced without summons: RULE 58: PRELIMINARY INJUNCTION
1) When the defendant is a resident of the What is writ of preliminary of injunction?

Philippines but service of summons cannot - It is an order granted at any stage of an action
be done personally or by substituted service or proceeding prior to the judgment or final
despite diligent effort order, requiring a party or a court, agency or
2) When the defendant is a resident of the a person to refrain from a particular act or
Philippines but is temporarily out of the acts. It may also require the performance of
Philippines a particular act or acts, in which case it shall
3) When the defendant is not a resident of the be known as a preliminary mandatory
Philippines and is not found in the Philippines injunction. (R58, Sec 1)
4) When the action is in rem or quasi in rem
What are the 2 types of writs of preliminary of
Would the subsequent service of summons cure the injunction?
defect when the defendant was not served a prior 1) Writ of Preliminary Mandatory Injunction –
summons? requires the defendant to perform a certain
- No, the rules state that a writ of preliminary act
attachment may only be enforced against a 2) Writ of Preliminary Prohibitory Injunction –
refrains the defendant to perform a certain
defendant of the court has acquired
act
jurisdiction over the person (Torres vs.
Satsatin). In what main action may a writ of preliminary of
injunction be applied for?
What are the remedies available to the defendant to - In an action for injunction where the principal
discharge the attachment on his/her property? relief prayed for by the plaintiff is for the court
1) Defendant may cash deposit (same value as to compel/refrain defendant from doing a
the property) or post a counter bond (amount certain act or to perform a certain act.
equivalent to the claim fixed by the court in
the order attachment). May the court issue a writ of preliminary of injunction
2) Defendant may assert that the attachment without notice and hearing?
was improperly or irregularly - No, because the court cannot issue a writ of
issued/enforced. preliminary of injunction unless it has
3) Defendant may show that that the attachment acquired jurisdiction over the person of the
is excessive (the discharge will only pertain defendant.
to the excess of the obligation of the - Per Atty. Obra, there are no exceptions to the
defendant to the plaintiff). above rule. However, the rule makes it
appear that there are exceptions.
________________________________
Page 3 of 75
What are those remedies accorded to the plaintiff? receiver be appointed to administer and
(R58, Sec 5): preserve it;
1) Issuance of a 20-day TRO (requires a
summary hearing) b) When it appears in an action by the
- grave and irreparable damage mortgagee for the foreclosure of a mortgage
2) TRO 72 hours (3 days) that the property is in danger of being wasted
- extreme urgency or dissipated or materially injured, and that its
- upon application (court to issue a TRO) value is probably insufficient to discharge the
mortgage debt, or that the parties have so
During the 72-hour TRO, the application for the 20- stipulated in the contract of mortgage;
day TRO may be heard summarily.
c) After judgment, to preserve the property
Writ of preliminary of injunction always require during the pendency of an appeal, or to
hearing after service of summons. dispose of it according to the judgment, or to
aid execution when the execution has been
Two (2) things present for a court to issue a writ of returned unsatisfied or the judgment obligor
preliminary of injunction: refuses to apply his property in satisfaction of
1) Plaintiff must show and prove to the court that the judgment, or otherwise to carry the
he/she has a clear and positive right judgment into effect;
protected that deserves protection.
2) Plaintiff must show to the court that right will d) Whenever in other cases it appears that the
be violated if the act complained of is not appointment of a receiver is the most
prevented convenient and feasible means of preserving,
administering, or disposing of the property in
What must the applicant show in the litigation.
affidavit/application? (Grounds: R58, Sec 3)
1) Applicant is entitled prayed for in the main
action. In one case which involves a property being disputed
2) If defendant is allowed to perform such by the parties, the plaintiff applied as a receiver. He
performance/continuance will cause injustice alleged that during the pendency of the action, he
to the applicant. needs funds to defray for his medical expenses and
other needs. The Supreme Court held that his reason
The purpose of a writ of preliminary injunction is to for application as receiver is not a valid ground.
preserve the status quo during the pendency of the
action. If the defendant is not prevented during the In another case, plaintiff did not allege in the
pendency of the action to perform the act complained application for appointment of receiver that the
of and he performs it during the pendency of the property subject of the action is in danger of being
action, it will render the judgment ineffectual. wasted or dissipated or materially injured. The
Supreme Court ruled that the application should not
be granted because the applicant must show a valid
RULE 59: RECEIVERSHIP ground to be a receiver of the subject property.
When may the court appoint a receiver? (R59, Sec

1) RULE 60: REPLEVIN
a) When it appears from the verified application,
and such other proof as the court may In what action may a writ of replevin be applied for?
require, that the party applying for the - In a main action to recover possession of
appointment of a receiver has an interest in personal property
the property or fund which is the subject of - May be applied for an action for replevin
the action or proceeding, and that such
property or fund is in danger of being lost, When may be applied?
removed, or materially injured unless a - At the commencement of action; or
________________________________
Page 4 of 75
- At any time before answer Why is a minor entitled to support?
- Because the law requires (Family Code)
What should plaintiff show/allege in the application?
(R60, Sec 1) The action for support is filed against the alleged
1) Applicant is the owner of the property/entitled father of the minor.
to the possession of the property involve The mother of the minor applies for support pendente
2) Property is unlawfully detained by defendant lite.
3) Property is not taken into custody or not seize
by court
4) Actual market value of the property What must be alleged?
1) Legal basis for the duty of the defend to give
What is the duty of the sheriff once the court has support to the minor child
issued the writ of replevin? 2) Legal basis for the right of the minor to be
- Sheriff to deliver the writ to the defendant given support by the defendant
- Sheriff to implement the writ by taking into 3) Financial capability of the defendant
possession of the personal property then he 4) Needs of the minor child
shall retain the property within 5 days before
giving it to plaintiff The court granted the support pendente lite requiring
- Defendant may question the sufficiency of
defendant to provide a certain amount every month to
the bond
- Reason for the 5-day period: To wait for the minor child. During the pendency of the action,
defendant to post a counter bond defendant gave monthly support to the minor. Later
on, the court determined that the defendant was not
Amount of the bond = equivalent or double the the father of the minor child. What are the remedies
amount of actual market value as alleged in the of the defendant?
application for replevin 1) Defendant may seek reimbursement from the
recipient of the support in another action.
What is the effect if a third person claims ownership 2) If recipient cannot reimburse, defendant may
of the personal property? file a separate action with legal interest from
GR: When a third party makes an affidavit of his right the person legally obliged to give support.
of possession over the personal property and he/she 3) Paternity suit
files it with the sheriff, copy furnished the applicant,
the sheriff and relieved of his duty to keep such May minor grandchildren demand support from their
property grandparents?
EXP: Unless the applicant gives a bond in favor of the GR: No
third party claimant EXP: Minor children’s parents are unable to
financially support them (Lim vs. Lim).
RULE 61: SUPPORT PENDENTE LITE If the husband is unable to provide support to the wife,
may the wife demand support from her parents-in-
In what actions may support pendent lite be applied law?
for? - No because the duty to provide support
- Action for support (main action) applies only to the relatives by blood in the
- Action for of marriages ascending line.
- Annulment of marriage
- Criminal action (rape) What is Republic Act No. 9262?
- Declaration for nullity of marriage
- The law against Violence Against Women
- Legal separation
and Children (VAWC).
What should be alleged?
- That person is entitled for support A woman filed an action against the father of her child
based on RA 9262. She prayed for a temporary
________________________________
Page 5 of 75
protection order and for support pendente lite for her other special civil actions, the initiatory pleading is a
minor child. petition. But in an action for interpleader, the initiatory
- The amount of support that must be given to pleading is a complaint. That's why it is a complaint in
a minor must be proportionate to the capacity interpleader.
or means of the person who shall give
support and the needs of the minor entitled to Now, what relief or reliefs are sought by the person
the support. when he files a complaint in interpleader? What relief
is he seeking?
RULE 62: INTERPLEADER - The relief sought by the person filing a

complaint in interpleader is to compel the
When may a person file a complaint in conflicting claimants to interplead and litigate
interpleader? their several claims among themselves.
- A complaint for interpleader may be filed
when there are conflicting claims upon… So could you explain that to us?
Wait. My question is, “When may a person file a - Since the complainant is either has no
complaint in interpleader?” (You started your interest in the subject matter or that although
answer with, “A complaint in interpleader may be he has an interest in it, it's not disputed by the
filed…”. That's not responsive to the question claimants, he will let the conflicting claimants
because my question is “When may a person file a to litigate their claim or right over the said
complaint in interpleader?” So your answer must be subject matter to determine who has the
responsive to the question. What you were about to better right between the two of them.
say may be correct, but it's better to be responsive to
the question. So my question is ““When may a So, he will file a complaint in interpleader, so that the
person file a complaint in interpleader?” Your conflicting claimants against him. The conflicting
answer should start with, “A person may file a claims are being made against him by two persons.
complaint in interpleader…”, then you proceed.) Let us say there are two persons, the conflicting
claims of whom are upon the same subject. So, two
- A person may file a complaint in interpleader persons are claiming against him the same subject.
when there are conflicting claims upon the Let us say the subject is a sum of money. So, the
same subject matter is made or may be made person against whom conflicting claims are made, is
against him, provided there are certain willing to pay that sum of money.
conditions: (1) that either he claims no
interest whatsoever in the subject matter, or Let us say, this person is a lessee, and there are two
(2) that an interest in whole or in part is not persons claiming that they are entitled to the monthly
disputed by the conflicting claimants. rentals that he is paying. Let us say the lessor died an
later on two persons talk to the lessee both of whom
So, let’s take the answer completely. A person may saying that they are entitled to the payment of the
file a complaint in interpleader, when conflicting monthly rentals. The lessee is willing to pay the
claims upon the same subject matter are or may be monthly rentals, in fact, when the lessor was still alive,
made against him. And he claims no interest in the he was religiously paying the monthly rentals. But the
subject matter of the claims, or he claims an interest lessor died, and two persons now told him, each of
which is not disputed by the conflicting claimants. whom, claims that he is the one entitled to the monthly
rental because he is the sole heir of the lessor.
Okay. I hope you can understand exactly when may
a person file a complaint in interpleader. I said There are two of them. So the lessee now does not
complaint in interpleader because the initiatory know which of these two conflicting claimants is
pleading for this special civil action is a complaint. In entitled to the monthly rentals. He is willing to pay the
________________________________
Page 6 of 75
monthly rentals. He has no interest in withholding the complaint in interpleader. There will always be two or
monthly rentals. The problem is he does not know more defendants in a complaint in interpleader. So
which of the two claimants is entitled. If he pays one, the plaintiff, files a complaint against the conflicting
the other claimant will sue him. So what is his claimants who will be impleaded as defendants.
remedy? Okay. So the court will, upon the filing of the complaint
in interpleader, will issue an order directing the parties
- His remedy is to file a complaint in to interplead and litigate their conflicting claims. And
interpleader and tell the conflicting claimants then what will the court do?
that since he filed a complaint in interpleader
in court, “Okay you better litigate your - The court will issue summons to the
conflicting claims in court, because I cannot conflicting claimants, Sir.
decide who between the two of you is
entitled. Which of you is entitled to the - Okay. So the court will issue summons and
payment of monthly rentals? I'm willing to pay serve them on the defendants.
the monthly rentals. But I don't know who
between you is entitled. So I'll bring you to Okay. So what should the defendants do upon being
court, then you litigate your conflicting claims served summons?
in court. you interplead, meaning you file your
respective pleadings, so that it's the court Upon being served the summons or the
which will settle your conflicting claims.” defendant should file an answer to the complaint.
That’s the situation in an action for
interpleader. The plaintiff, the person against An answer to the complaint. Anyway, usually, in
whom the conflicting claims are made, is ordinary civil actions, the complaint sets forth the
willing to pay whatever is the claim. It may be claims of the plaintiffs against the defendants. What
a claim for sum of money or a claim to deliver about in the case of a complaint in interpleader? What
property. So the subject of the claim may be will the complaint in interpleader allege? Will it allege
sum of money or property and the plaintiff is the claims of the plaintiffs against the defendants?
willing to deliver the property or pay the sum
of money. The problem is he does not know The complaint in interpleader would allege that the
who between two claimants is entitled to the subject matter is in the possession of the plaintiff, and
claim. that he claims no interest in the subject matter or that
if he has such interest and that it is not disputed by
So what should the court do upon the filing of a the claimants, and that he also alleged that the
complaint in interpleader? conflicting claimants litigate their claims as to who has
the better right between the two of them.
- Upon the filing of the complaint in
interpleader, the court shall issue an order In short, a complaint in interpleader will not allege the
directing the conflicting claimants to claims of the plaintiffs against the defendants
interplead with one another or to litigate their because the plaintiff has no claims against the
several claims or their conflicting claims. defendants. In ordinary civil actions, a complaint will
11:03 set forth the claims of the plaintiffs against the
defendant. In a complaint in interpleader, the plaintiff
Okay, what else? So the court will issue an order has no claims against the defendant. So, the
directing the conflicting claimants. They are now the complaint will allege those that you mentioned, that
defendants. By the way, the persons against whom conflicting claims are made against him, the plaintiff,
conflicting claims are made, and who files the and that he has no interest in the subject of the
complaint in interpleader will be the plaintiff and the conflicting claims. If it is payment of a sum of money,
conflicting claimants will now be the defendants. So that means he is willing to pay that sum of body and
there will always be more than one defendants in a if it is for the delivery of property, then he will allege in
________________________________
Page 7 of 75
the complaint that he is willing to deliver the property
and that he does not know which of the conflicting
claimants who are now the defendants, which of the Who will file the reply in an action in interpleader?
defendants is entitled to the delivery of property or to
the payment of the sum of money. So those will be - The one who files a reply and an action for
the allegations in the complaint in interpleader. Not a interpleader either one of the conflicting
normal complaint, as in ordinary civil actions, claimants or the defendant in the action.
because the plaintiff has no claim against the
defendants. Okay. So you said upon being served The reply is to be filed by the defendants. The
summons, the defendants now will file their defendants will reply to what? Because remember,
respective answers. There will always be two or more the defendants will set forth in their answer their
defendants in a complaint in interpreter. So what will respective claims. So, one defendant will allege in his
the defendants set forth in their Answers? answer that he is the entitled to the claim and not the
other defendant. That is the one that he will allege in
- The defendants, Sir, shall set forth their his answer. Each of the defendants will make that
claims over the subject matter, or their legal allegations in their respective answers. So when a
basis for being able to have possession of the defendant files a reply, to what pleading is his reply a
said subject matter. responsive pleading?
Okay, that's correct. In ordinary civil actions, the - He replies to the actionable document
answer will set forth the defenses of a defendant. In attached to the reply of the defendant or the
action for interpleader, the answer of the defendants respective claimants.
will set forth not their defenses but their respective
claims. So you mentioned an actionable document. So the
reply of one defendant is a responsive pleading to the
Under Rule 62, after the defendants have filed their answer of the other defendant. And the other
answers, a reply may be filed. defendant will also file a reply to the answer of the
other defendant. So, as I mentioned earlier, after filing
In order civil actions, who filed a reply? the complaint, the plaintiff has no more role to play in
the action in interpleader. He will just wait for the
- The Defendant. termination of the action. He has nothing more to do
in respect to the action. It's between the two
In ordinary civil actions, who files a reply? A reply is a defendants.
responsive pleading to an answer. So, who files a
reply if it is a responsive pleading to an answer? Does the plaintiff in action for interpleader has a
cause of action against the defendants? Because
- In ordinary civil actions, the reply is filed by every ordinary civil action is based on a cause of
the plaintiff. action. Now my question is Does the plaintiff in action
for interpleader has a cause of action against the
The Plaintiff, files a reply, because a reply is a defendants?
responsive pleading to the answer. And the answer is
filed by the defendant. But what about in an action in - Yes sir, the Plaintiff has a cause of action
interpleader? Who will file the reply now? against the defendants
The Plaintiff, by the way, after filing the complaint has Do you remember your definition of a cause of action?
nothing more to do with regard to the complaint. He How do you define a cause of action? What is a cause
will just file the complaint and he can forget about the of action?
case. He has no more role in that case. He just filed
the complaint. - A cause of action pertains to….
________________________________
Page 8 of 75
person against double vexation in respect to
Okay. Let me help you. Allow me to help you. A cause one’s liability.”
of action is defined as the act or omission by which a
party violates a right of another. So that's how a That would be part of the ruling in every action for
course of action is defined. Now knowing what a Interpleader. You’re just making a general statement
cause of action is, let me repeat my question. Does regarding an action for Interpleader, not the doctrine
the plaintiff in a complaint in interpleader, has a cause laid down in the case of Wack-Wack. What is the
of action against the defendants? important doctrine laid down in that case?
- No, Sir. The Plaintiff has no cause of action - It state that the action for Interpleader is a
against the defendants. remedy whereby a person…
The plaintiff has no cause of action that is against the You are just restating the provision in Rule 2. That’s
defendants because the defendants did not violate not the doctrine. The Supreme Court ruled in the case
any like to be plaintiffs. They're just making a claim of Wack-Wack. There must be an interpretation made
against the plaintiff. They're making a claim. They did by the Supreme Court not just the statement of the
not violate any right of the plaintiffs, so the plaintiff has Rule.
no cause of action against them. But since this is a
special civil action, there's no problem because only Doctrine: “A person may no long file a
ordinary civil actions must be based on a cause of Complaint in Interpleader if there
action. Special civil actions need not be based on a is already a final judgment against
cause of action. So in an action for interpleader, the him in favor of one of the
plaintiff has no cause of action against the conflicting claimants.”
defendants.
So if one of the conflicting claimants has already filed
When the court renders a judgment it will include an a case against the Plaintiff and a judgment has
order to reimburse the Plaintiff of his expenses in filing already been rendered against the plaintiff which has
the Complaint in Interpleader. The Plaintiff incurred become final an executory, the Plaintiff can no longer
expenses without his fault. He has to file a Complaint file a Complaint in Interpleader against the person
in Interpleader without his fault. The losing who filed a case against him and against another
party/losing defendant will be made to reimburse the claimant because there is already a final judgment
Plaintiff with the expenses that he incurred in filing the against the Plaintiff in favor of one of the conflicting
complaint in interpleader. claimants. It’s too late for him to file the Complaint in
Interpleader. He should satisfy the judgment against
Let us now discuss some of the doctrines. him.
Let’s call another one. What about the case of Eternal Gardens v.
Intermediate Appellate Court?
You are done with Sendin. Thank you!
- The doctrine in Eternal Gardens v.
Mr. Valiente. Intermediate Appellate Court is, “the
subject matter of an interpleader should
Would you know what was the doctrine established in be deposite din court upon the filing of the
the case of Wack-Wack Golf and Country Club versus complaint.
Won? What was the doctrine laid down in that case?
It is mandatory upon the Plaintiff to deposit with the
- In Wack-Wack, the doctrine is, “the remedy court the property or funds subject of the conflicting
of interpleader is for the protection of a claims. What was the reason of court?
________________________________
Page 9 of 75
- It was based on justice and equity. This case of Bank of Commerce provided for another
way of initiating an action in interpleader, not by way
The ruling of the Supreme Court is always based on of filing a complaint in interpleader but?
justice and equity even if it is based on specific law.
That’s a general statement. - Through Answer, Sir.
It is mandatory upon the Plaintiff to deposit with Not an Answer, but in the Answer a Counterclaim or
the court the property or funds subject of the Cross-Claim in Interpleader. So an action in
conflicting claims because he should not interpleader may be initiated not by filing of a
continue to benefit from the property or funds in complaint but by filing a Counterclaim or Cross-Claim
which he has no interest. in Interpleader which will be incorporated in the
Answer.
That property or fund should be given later on to the
prevailing party in the action for interpleader. So the
Plaintiff should immediately deposit to the court the Doctrine: An action in interpleader may be
property of funds upon the filing of the complaint in initiated either by filing a
interpleader. Complaint in Interpleader or by
filing a Counterclaim or Cross-
What about in the case of Pasricha v. Don Luis Dizon Claim in Interpleader.
Realty?
- The action for Interpleader is proper when the RULE 63: DECALARATORY RELIEF AND OTHER
lessee does not know to whom rental SIMILAR REMEDIES
payments should be made due to the
conflicting claims of the parties? Who may file a Petition for Declaratory Relief? (For
Interpleader – Complaint, For Declaratory Relief -
It appears that the ruling in Parischa is just a straight Petition)
forward application of Rules 2. When a lessee does
not know who between the two claimants is entitled to - A Petition for Declaratory Relief may be filed
the monthly rentals, then his remedy is not to withhold by any person who has an interest under a
payment of the monthly rentals but to file a complaint deed, will, contract, or other written
in interpleader and deposit the month rentals with the instruments, or by a person whose rights us
court. affected by a statute, ordinance or other
governmental regulations.
What about in the case of Bank of Commerce v.
Planters Development Bank? So a Petition for a Declaratory Relief may be filed by
person who has an interest or interested in deed, will,
- Rule 62 does not expressly authorized the contract, or other written instruments, whose rights us
filing of a Complaint in Interpleader as a affected by a statute, executive order, regulations,
separate and independent action… ordinance or other governmental regulations.
No. In fact Rule 62 expressly provides that when there What Court has jurisdiction over Petitions for
are conflicting claims that are being made against Declaratory Relief?
person, that person may file a complaint in
interpleader. By a complaint in interpleader, he is - The RTC has jurisdiction over a Petition for
initiating an action in interpleader. Declaratory Relief because it is incapable of
pecuniary estimation.
Normally an action in interpleader is initiated by the
filing of a complaint in interpleader under Rule 62.
________________________________
Page 10 of 75
What kind of jurisdiction is exercised by A Regional or validity of a law or statute. The provisions of the
Trial Court Over a Petition for Declaratory Relief? contract, law or statutes are doubtful. That’s what the
petitioner is asking the court to do. Although there is
- Original Sir. no violation of the contract yet prejudicial to the
petitioner, the right of the petitioner under the contract
Is it exclusive or concurrent? or law has not been violated but he is now going to
court because he wants the court to determine the
- It is exclusive, Sir. correct interpretation of the contract or law. He wants
the Court to determine whether the contract or law is
It is exclusive because it is an action incapable of valid or not, to determine any question of construction
pecuniary estimation, under paragraph 1, Section 19 or validity. That’s the nature of the Petition for
of BP Bilang 129, as amended. Declaratory Relief. Unlike in ordinary Civil Action
where there has already been a violation of the right
Don’t say, that it is the Regional Trial Court as of the Plaintiff by the Defendant, the Court may
Provided in Section 1 of Rule 63. Why can’t you say decline to take cognizance of the Petition for
that? Declaratory Relief. The parties should first interpret
the contract. Now if one party believes that his right is
- Because in the second paragraph… violated under the contract, then he should file an
ordinary civil action. The Court may give due course
Don’t mention about the second paragraph, we’re to a Petition for Declaratory relief but all the Court will
talking about the first paragraph. The 2 nd paragraph do is just either to interpret the contract or law or the
talks about other similar reliefs. court will declare whether the contract or law is valid
or not.
Why is it improper to say that the Regional Trial Court
has jurisdiction over a Petition for Declaratory Relief What’s is the rule if during the pendency of a Petition
as Provided in Section 1 of Rule 63? for Relief the right of the Petitioner under the contract
or law has been violated?
- Because the Rules of Court cannot confer
jurisdiction. It is only the law, and the law is - The rule is to ask the court to determine the
paragraph 1 of Section 19 of BP 129, as validity of the construction or to interpret, Sir.
amended.
That’s not my question. My question is, What will
When a person files a Petition for Declaratory Relief, happen if the Petition for Declaratory Relief was filed
what reliefs is he seeking? before the right of the petitioner under the contract
was violated but during the pendency of the Petition
- The reliefs he is seeking is determine the of for Declaratory Relief the right of the Petitioner under
the construction or validity of the deed, will, the contract or law was violated?
contract.
- If it happens that there is violation of his right
What does he want the court to do? He is asking the during the pendency of the action, it will be
court to determine any question of construction or converted into an ordinary civil action.
validity a deed, will, contract or other written
instruments, or a statute, executive order, So, the action for Declaratory which is a special civil
regulations, ordinance or other governmental action will be converted into and ordinary civil action
regulations. because this time the petitioner will have a cause
already against the respondent so the action will be
So when a person files a Petition for Declaratory converted into an ordinary civil action. There is no
Relief, he is simply asking the Court to determine a need to file a new ordinary civil action.
question of construction or interpretation of a contract
________________________________
Page 11 of 75
Who should be impleaded as respondents? ownership under Article 1607 of the Civil
Code,
- All persons may be affected by the
declaration of the court may be impleaded The first similar remedy under the second paragraph
regarding the correct interpretation or validity of Section 1 is an action to reform an instrument.
Can you give us an example where this action is the
of a contract or law, or regarding the
proper remedy? Under what situation will an action
declaration of the rights and duties of the for reformation of instrument will be proper?
Petitioner under the contract or law.
- In a contract Sir. In a deed of sale.
Another relief is that the Court may also declare the
rights and duties of the Petitioner under the Let us say a contract is entered into by two parties.
contract or law aside from determining the correct Before the parties execute the contract they will first
interpretation or validity of a contract or law. come to an agreement of the contract. Then they will
set forth what they agreed upon in a written contract.
In the case of Almeda v. Bathala Marketing the SC By the way, when is there an agreement or contract
enumerated the requisites for an action for between the parties. How is an agreement defined?
Declaratory Relief.
- An agreement is defined when there is
1. Subject matter of the controversy must be a meeting of minds between two persons.
deed, will, contract or other written
instruments, or a statute, executive order, So, when there is meeting of the minds between two
regulations, ordinance or other governmental persons there is a contract already, a binding
regulations. agreement between two persons. But, it’s very
difficult to prove later on, if there is a need to prove
2. The terms of the contract or law are doubtful what were agreed upon if they are not embodied in a
as well as their validity that’s why the Curt has written instrument. So usually, after the parties have
interpret the law or contract or determine their meeting of the minds, they will no embody the terms
validity. agreed upon in a written instrument. T hat’s the
instrument referred to in the action for reformation of
In the case of Malana v. Tappa the SC said, if before instrument, the written contract.
the filing of the Petition for Declaratory Relief, there
was already a violation of the right of the Petitioner When there is a need for an action for a reformation
under the deed, contract, law or other written of contract
instrument, or under the statute, then the Court
should no longer assumed jurisdiction over the case - In your example, Sir, in contract if deed of
because there is already a violation of the right of the sale, both of the parties agreed that it is a
Petitioner. The Petition for Declaratory Relief is no contract if 1000 square meters but in the
longer proper, instrument there is only 100 square meters.
What are the three other remedies similar to So meaning the written instrument or contract does
Declaratory Relief under the second paragraph of not express the true intention of the parties or the
Rule 63, Section 1? terms agreed upon by the parties. There’s an error in
the written instrument because it does express
- The other remedies similar to Declaratory accurately the terms agreed upon by the parties.
Relief under the second paragraph of Rule There’s something wrong with the instrument. Thre’s
63, Section 1 are an action for the reformation
nothing wrong with the contract, there was meeting of
of an instrument, to quiet title to real property
or remove clouds therefrom, or to consolidate the minds. But if the written instrument does not
express the true intentions or the terms agreed upon
by the parties, then the remedy of a party is to file an
________________________________
Page 12 of 75
action for reformation. Not an action for annulment of supposed he heard that some persons are claiming
the contract because there’s nothing wrong with the that they owned that property. That is not a violation
contract. The defect is in the written instrument so the of the right of the petitioner. If the petitioner wants that
proper remedy is an action for reformation of the his ownership be declared by the court so there would
contract. be no doubt anymore on his ownership of that real
property. His proper remedy is to file an action to quiet
Why is this a similar remedy to a Declaratory Relief? title.
- In the reformation of instrument, the relief What Court exercises jurisdiction over a petition to
sought for by the one who filed was to quiet title or remove clouds therefrom?
question construction of the instrument.
- It is still the RTC which has exclusive original
In both actions there is no violation of any right or by jurisdiction because it is incapable of
party against the other. There’s just an error in the pecuniary estimation.
instrument.
In the case v. Malana v. Tappa, the SC also said that
What Court do you think exercises original exclusive a Petition to Quiet Title or Remove Clouds therefrom
jurisdiction over actions for reformation of intrument? is within the jurisdiction of either the RTC or MTC
depending the assessed value of the real property
- The Regional Trial Court because it is involved. Jurisdiction is determined by the assessed
incapable of pecuniary estimation. value of the real property involved.
It is also incapable of pecuniary estimation; hence it Earlier you said that the action Declaratory Relief is
is also the RTC who exercise exclusive original within the exclusive original jurisdiction of the RTC.
jurisdiction over the action. May the SC take cognizance of an action for
Declaratory Relief? What was the doctrine laid down
The second similar remedy is an action to quiet title by the SC in the case of Chavez v. JBC?
or remove clouds therefrom. It appears that there’s a
need to quiet title is very noisy, that is why there is a Although the case was filed directly with the SC, not
need to quiet it. Or there are dark clouds covering as petition for declaratory relief, the SC said that said
over the title, that is why there is a need to remove petition was a Petition for Declaratory Relief. The SC
the clouds therefrom. Do you agree Ms. Berdan? determined that the action filed with it, although not
designated as an action for Declaratory Relief, is
What is similar between an action to quiet title or actually an action for Declaratory Relief. The Sc said
remove clouds therefrom and an action for that, initially it has no jurisdiction over Petitions for
Declaratory Relief? Declaratory Relief. It is the RTC. But in this case,
since the issue involve in the said petition is of
- The relief sought is who has the right over the transcendental importance, by way of an exception,
property. then took cognizance of such action for Declaratory
Relief. The SC invoke the first paragraph of Section 8
In both actions there is no violation of the right of the of Article 8 of the 1987 Constitution where it is
parties. The petitioner in an action to quiet title - it provided that the SC and the other lower court may
refers to title to real property. By the way, to quiet title determine whether any agency of the government,
to real property, there’s no violation yet of the right of belonging to the executive or legislative branches has
the petitioner. He will file a petition to quiet title committed grave abuse of discretion. The issue here
because there may be some persons also claiming is regarding the application of Chavez for the position
ownership. But there is no violation on the right if the of Chief Justice of the S after Chief Justice Corona
petitioner. He is in possession of the real property. He was convicted in an impeachment case and was
is claiming title to real property in his possession. But removed. Chavez who filed an application
________________________________
Page 13 of 75
questioned the membership of two members of post to another, because it also assail the validity of a
Congress in the JBC. Under the 1987 Constitution, law. So according to the Supreme Court since the
only one M=member of Congress may sit as a action assails the validity of the law. So it was
member of the JBC. So one member of Congress, the therefore an action for declaratory relief, and the
problem is there are two houses, the HRep and the Regional Trial Court has or exercises exclusive
Senate, each sends a member to sit as members of jurisdiction over an action for declaratory relief.
the JBC. Because of the transcendental importance
of the issue involved, the SC take cognizance of the Now, in the case of Erese v. Sison. What was made
action. the subject of an action for Declaratory was not a
deed, will, contract or other written instrument, or it
If you are asked, May the SC take cognizance of an was not statute, executive order, regulation,
action for Declaratory Relief? You have to cite this ordinance or other governmental regulations. What
case because under the law the SC has no was made the subject of an action for declaratory
jurisdiction over a Petition for Declaratory Relief. relief was a final order or a court. So an action for
declaratory relief was filed with the Regional Trial
In the case of Department of Finance versus Dela Court, for the court to determine, to interpret that final
Cruz. Dela Cruz was an employee of the Bureau of order of record. Okay. So this issue of reached the
Customs he was transferred from one post to another Supreme Court. The Supreme Court said, the final
in the Bureau of customs So, he filed a case objecting order or judgment of a court cannot be the subject of
to his transfer now. He filed a case in the Regional an action for declaratory relief because under the
Trial Court objecting to his transfer, but at the same Rules, under Section 1 of Rule 63, what may be the
time, because the transfer of Mr. Dela Cruz from one subject of an action for declaratory relief, (that's the
post to another post in the Bureau of customs was first requisite), the subject of the action for a
based on an executive order issued during the time of declaratory relief, must be a deed, will, contract, or
President Corazon Aquino. So, the executive order other written instrument, or a statute, executive order,
was a law. So in that case filed by Dela Cruz, regulation, ordinance or other governmental
assailing his transfer from one post to another post in regulations. An order of the court or a judgment of the
the Bureau of customs, he also assails the validity of court can be the subject of an action for declaratory
the executive order 140. The RTC said since this case relief. That was the ruling of the court, the Supreme
filed by Dela Cruz also assails the validity of a law, Court in the case of Erise v. Sison.
therefore, this case should be treated as an action for
declaratory relief. RULE 64: REVIEW OF JUDGMENTS AND FINAL
ORDERS OR RESOLUTIONS OF THE
The case was filed with the RTC by Dela Cruz. So the COMMISSION ON ELECTION AND THE
Department of Finance questioned the jurisdiction of COMMISSSION ON AUDIT
the Regional Trial Court saying that this case filed by
Dela Cruz and a government employee should have Llet's now discuss Rule 64. Review of judgments,
been filed with the Civil Service Commission. The final orders or resolutions of the COMELEC and COA.
regular courts, according to the Department of You know, the COMELEC and COA are quasi-judicial
Finance has no jurisdiction over a complaint filed by agencies. They are administrative bodies exercising
a government employee. This case should have been quasi-judicial functions. What are judicial functions
filed with the Civil Service Commission. But the Dela judicial functions?
Cruz filed it in the Regional Trial Court. So later on the
issue whether the Regional Trial Court has A judicial function means that the judicial function of
jurisdiction over that action filed by Dela Cruz or not a court is that it hears, tries and decides cases based
reached the Supreme Court. And the Supreme Court on law. So, that is what is called judicial function.
said yes, the Regional Trial Court had jurisdiction When an administrative agency performs, hears, tries
over the case because the case went beyond and decides cases, it is performing a quasi-judicial
questioning the transfer of Mr. Dela Cruz from one function. Although they are not courts, these
________________________________
Page 14 of 75
administrative agencies, they perform functions that motion for new trial or reconsideration. So 60
are similar to the function of the court, trying, hearing days, the Petition for Certiorari under Rule 65
and deciding cases. Now, you know that under Rule shall be filed within 60 days from notice of
43, judgments, final orders or resolutions of quasi- judgment or notice of the order denying the
judicial agencies are appealable to the court of motion for new trial or reconsideration. Under
appeals by what mode of appeal? By petition for Rule 64, the Petition for Certiorari shall be
review. Rule 43 which includes one of the qiasi- filed within 30 days not 60 days. That's under
judicial agencies included in the list under Section 1 Rule 64. Although it is a petition for Certiorari
of Rule 43 is the Civil Service Commission. A under Rule 65, but since it is also governed
judgment, final order or resolution of the Civil Service by Rule 64, it shall be filed within 30 days
Commission is appealable to the Court of Appeals by from notice of the judgment, final order or
Petition for Review under Rule 43. The Civil Service resolution of the COMELEC or COA. The
Commission is also a constitutional commission like petition for certiorari shall be filed with what
the COMELEC like the Commission on Audit, but by court? With the Supreme Court.
express provision of the rules, judgments, final
orders, the resolutions of COMELEC or COA are Another difference is that, when a motion for new trial
reviewable, not by Petition for Review, under Rule 43, or reconsideration is filed, a Petition for Certiorari
but by Petition for Certiorari under Rule 65. So, that is under Rule 65 shall be filed within 60 days, meaning
the mode of review Petition for Certiorari. Petition for the same period notice of the order denying the
Review and the Rule 43 is a mode of appeal, but a motion for new trial or reconsideration. When a
Petition for Certiori under Rule 65 is not a mode of motion for new trial is filed, or a motion for
appeal. It is an original action. It is a special civil reconsideration is filed of the judgment, the Petition
action. for Certiorari under Rule 65 shall be filed within 60
days from notice of the order denying the motion for
So, if you are asked, what court is a judgment or new trial or reconsideration. There’s a fresh period of
resolution of the COMELEC or COA appealable? 60 days from notice of the order, denying the motion
for new trial or reconsideration. But in the case of a
- Your answer should be the judgment, final Petition for Certiorari under Rule 64, when a motion
order or resolution of COMELEC or COA is for new trial or reconsideration is filed, the Petition for
not appealable. It may be reviewed, but it is Certiorari shall be filed within the remaining period.
not appealable. Not within 30 days from notice of the order denying
the motion for reconsideration or new trial, but within
So, what is the mode of review of the judgment, final the remaining period. Meaning the period to which the
order or resolution of COMELEC or COA? Petition for petitioner was entitled at the time he filed the motion
Certiorari under Rule 65. It is not a mode of appeal. It for reconsideration or new trial. Take note of the
is a mode of review, but not a mode of appeal. The differences. First, 60 days to file a petition for
mode of review of judgment, final orders, or resolution certiorari under Rule 65, 30 days within which to file
of COMELEC or COA is petition for review under Rule from notice of judgment, the petition for certiorari
65 in relation to Rule 64. It must be in relation to Rule under Rule 64.
64, not just petition for review under Rule 65 because
there are differences between a Petition for Certiorari On what ground may a petition for certiorari be filed
under Rule 65 and a Petition for Certiorari relation to under Rule 65?
rule 64.
- The Petition for Certiorari under Rule 65, the
What are the differences? ground is that the respondent, the tribunal,
board or person acted without jurisdiction or
- Under Rule 65, a Petition for Certiorari shall in excess of jurisdiction, or with grave abuse
be filed within 60 days from notice of of discretion amounting to lack or excess of
judgment or notice of the order denying a
________________________________
Page 15 of 75
jurisdiction. That's the ground for a petition for passion, prejudice, or personal hostility? So that's a
sexually under Rule 65. high bar. That's a very high bar for a ground or a
petition for certiorari, either under Rule 65 or under
What about the petition certiorari under Rule 64? Rule 64. As they said, mere error of fact or error of
law committed by a court committed by COMELEC,
- The same grounds, that the COMELEC or committed by COA is not grave abuse of discretion. A
COA acted without without jurisdiction or in mere error fact or error law cannot be a ground for a
excess of jurisdiction or with grave abuse of petition for certiorari. The proper remedy in case of
discretion amounting to lack or excess of error of judgment, meaning, error fact or error law is
jurisdiction. So that should be the ground in a not a petition for certiorari but appeal. That is the
petition for certiorari seeking to annul or set proper remedy. When a court commits an error fact
aside a judgment, resolution or final order of or an error or law, which is an error of judgment. The
COMELEC or COA under Rule 64. That the proper remedy for an error of jurisdiction is petition for
COMELEC or COA acted without jurisdiction certiorari.
or in excess of jurisdiction with grave abuse
of discretion. When does a court commit an error of judgment?
So, that was the ruling in the case of Anad v. - A Court commits an error of judgment when
COMELEC, that the only ground under Rule 64 in it commits an error or fact or an error law but
which a petition for certiorari may be filed is that it has jurisdiction over the case.
COMELEC or COA committed grave abuse of
discretion amounting to lack or excess of jurisdiction. When does a court commit an error of jurisdiction?
Most of the time it will not be lack of jurisdiction, or
excess of jurisdiction. It will be grave abuse of - A court commits an error of jurisdiction when
discretion because COMELEC or COA knows their having no jurisdiction over a case, it
jurisdiction. It will not take cognizance of the case exercises jurisdiction. It has no jurisdiction
over which it has no jurisdiction. but it exercises jurisdiction. That is an error of
jurisdiction committed by a court.
So what will happen is that COMELEC or COA, has
jurisdiction over the case but in exercising its In what other way may a court commit error of
jurisdiction, it commits grave abuse of discretion jurisdiction?
amounting to lack or excess of jurisdiction. That is
what usually happens, not lack of jurisdiction, but - A court may commit error of jurisdiction,
grave abuse of discretion amounting to lack or excess when, despite having jurisdiction over the
of jurisdiction. case, it commits grave abuse of discretion in
the exercise of its jurisdiction. So, even if a
What is meant by great abuse of discretion? Because court has jurisdiction over the case, but if its
that is the ground, that is principality ground for a exercise it commits grave abuse of
petition for certiorari, either under Rule 65 or under discretion, then that court commits an error of
Rule 64. What is great abuse of discretion? When is jurisdiction. The proper remedy for that is a
there grave abuse of discretion? petition for certiorari either under Rule 65 or
under Rule 64.
It's not just abuse of discretion, but grave abuse of
discretion. It is not just an error or fact, or error of law RULE 65: CERTIORARI, PROHIBITION AND
committed by a court or the COMELEC or COA. That MANDAMUS
will not be grave abuse of discretion. So what is grave
abuse of discretion? According to the Supreme Court, There are three kinds of petitions covered by rule 65.
grave abuse of discretion, is the arbitrary, despotic, Petition for certiorari, petition for prohibition and
whimsical or capricious exercise of power due to petition for mandamus. Let's start with a petition for
________________________________
Page 16 of 75
certiorari. We’ve mentioned earlier that a petition for available to the aggrieved party. He should appeal,
certiorari under Rule 65 may be filed on the ground not file a petition for certiorari. Even if the ground is
of lack of jurisdiction, in excess of jurisdiction, grave lack of jurisdiction, even if the ground is grave abuse
abuse of discretion amounting to lack or excess of of discretion, if appeal is available, then the aggrieved
jurisdiction. party should appeal, not file a petition for certiorari. A
petition for certiorari may only be filed if there is no
Against whom may a petition for certiorari be filed? appeal or any other plain, speedy or adequate
remedy in the ordinary course of law. A motion for
Against a tribunal, board or officer exercising judicial reconsideration is a remedy. It is a plain, speedy
or quasi-judicial functions. So again, whom may a adequate remedy for an aggrieved party. So that
petition for certiorari be filed against a tribunal? Of before a party can file a petition for certiorari, he's
course, a tribunal is a court. By the way, only a court required first, to file a motion for reconsideration
may exercise judicial function. An administrative because a motion for reconsideration is a plain,
agency may exercise not judicial function, but quasi- speedy and adequate remedy. He should avail of that
judicial functions. Functions similar to the functions of first. He should first file a motion for reconsideration,
the court, but not judicial function. Only a court may to give the tribunal or to give the respondent a chance
exercise judicial function. So the petition for certiorari to correct itself or himself.
may be filed against a tribunal, board or officer
exercising judicial or quasi-judicial functions. That is So as a rule, a petition for certiorari will not be given
the respondent in a petition for certiorari. We have due course, if the aggrieved party did not file first, a
already discussed the grounds for which a petition for motion for reconsideration. Although there are
certiorari may be filed. exceptions to that rule, but as a rule, the aggrieved
party must first file a petition motion for
What relief is sought by the petitioner when he files a reconsideration before he can file a petition for
petition for certiorari? What is he asking the court to certiorari. As I mentioned already, the petition shall be
do when he files the petition for certiorari? filed within 60 days from notice of judgment or within
60 days from notice of the order denying the motion
He is asking the court to nullify, to set aside the order for new trial or reconsideration. Within 60 days. So if
or judgment of the court. That's what the petitioner is an aggrieved party wants to buy time, if he is not
asking the court to do when he files a petition for ready to prepare a petition for certiorari within that 60-
certiorari. He is asking the court to nullify or to set day period from notice of judgment. He can by time,
aside whatever order or judgment or action done by he may file let us say a motion for reconsideration on
the court or tribunals (by the respondent) which was the 59th day from notice of judgment. So when that
done without jurisdiction, in excess of jurisdiction or motion for reconsideration is denied, he will again
with grave abuse of discretion. have 60 days from notice of the order denying the
On what condition may a petition for certiorari be file? motion for reconsideration. So he can buy time to
We know the ground on which the petition may be prepare the petition for certiorari. Sometimes it's not
filed. But on what condition? There is a condition to prepare the petition for certiorary.
before a petition for sensuality may be filed. What is
that condition? Let's go now to a petition for prohibition.
The condition is that there is no appeal or any plain Now, against whom may a petition for prohibition be
speedy or adequate remedy in the ordinary course of filed?
law. Take note of that. That's very important. A
petition for certiorari may be filed only if there is no The petition may be filed against a tribunal, Court,
appeal or other plain, speedy, or inexpensive remedy corporation, board, officer or person whether
in the ordinary course of law. So if a judgment or final exercising judicial, quasi-judicial or ministerial
order is appealable, the aggrieved party cannot file a function.
petition for certiorari, because there is appeal
________________________________
Page 17 of 75
Now, on what ground may a petition for prohibition be Okay, so the petition for prohibition ship should also
filed? be filed within 60 days from notice of the action of the
respondent. The same period for filing the petition.
The petition may be filed on the ground that the
respondent who may be a tribunal, corporation, board Okay, before we go to petition for mandamus let’s
officer or person that the respondent‘s proceedings discuss the case pertaining to petition for certiorari
are without or in excess of jurisdiction, or with grave and petition for prohibition. In the case of AL Am
abuse of discretion, amounting to lack of jurisdiction. Network Incorporated v. Mondejar, the Supreme
So here, you may say it's the same as the ground for Court said that since the decision of the municipal trial
a petition for certiorari. Here, the respondent is still court in small claims is immediately final and
doing something without jurisdiction, or in excess of executory, and inappealable, such judgment of the
jurisdiction or with grave abuse of discretion. It is in MTC may now be reviewed in a petition for certiorari
the act of committing something without jurisdiction or under Rule 65. Because in this case, the municipal
in excess of jurisdiction, or with gave abuse of trial court rendered a decision in a small claim case.
discretion. So that's the difference. Now, that's the So under the rules on small claims, a judgment of the
difference with grounds for a petition for certiorari. In MTC in small claims is immediately final and
a petition for certiorari, the respondent has already executory and inappealable. So what the aggrieved
acted without jurisdiction, or in excess of jurisdiction, party did was to file a petition for certiorari in a
or with grave abuse of discretion. In a petition for superior court. The prevailing party in the MTC
prohibition, the ground is that the respondent is still objected, said that what the aggrieved party is by filing
doing something without or in excess of jurisdiction, a petition for certiorari, is just circumventing the
or with gave abuse of discretion. prohibition that a judgment of the municipal trial court
in a small claim is inappealable. But the Supreme
So what relief is sought by the petitioner when he files Court said no, because under Rule 65, Section 1, if
a petition for prohibition? What is he asking the court there is no appeal, or other plain, speedy or adequate
to do? Since the respondent is doing something remedy in the ordinary course of law, the aggrieved
without or in excess of jurisdiction, or with grave party may file a petition for certiorari.
discretion, what is the petitioner asking the court to do
for him? What is he asking the court to do? So, what Since the decision of the municipal trial court in a
relief is sought by the petitioner when he files a small claim is inappealable, meaning there is no
petition for prohibition? appeal available for the aggrieved party. Therefore,
he may now file a petition for certiorari under Rule 65.
He's asking the court to render a judgment ordering So that was the doctrine laid down in the case of AL
the respondent to desist from, to stop doing what he Am network Incorporated, v. Mondejar.
is doing, without or in excess of jurisdiction.
In the case of Maglalang v. PAGCOR, The
In the case of a petition for certiorari, the relief sought respondent in a petition for certiorari move for the
is that the court should nullify or set aside whatever dismissal of the petition on the ground that the
action was already committed by the respondent. In a petitioner did not comply with rule on exhaustion of
petition for prohibition, the relief sought by the administrative remedy. The trial court denied it, and it
petitioner is for the court to order the respondent to reached the Supreme Court. The Supreme Court said
stop what it is doing, without or in excess of the doctrine exhaustion of administrative remedy,
jurisdiction, or with grave abuse of discretion. Do you before seeking judicial intervention does not apply if
see the difference? So you should be aware of the the law itself does not provide for administrative
distinction between the two. That's why it's called review in the administrative case. If the law itself does
petition for prohibition, for the court to prohibit the not provide for administrative review, then a petition
respondent from continuing to do what he is still for certiorari may be filed immediately. The rule on
doing. exhaustion of administrative remedy will not apply,
because there is no further administrative remedy
________________________________
Page 18 of 75
available. The law itself provides that, so the acquittal committed garve abuse of discretion, it is as
aggrieved party may immediately file a petition for if it had no jurisdiction and therefore, double jeopardy
certiorari. That was the ruling in the case of Maglalang will not apply.
v. PAGCOR.
In the case of UP Board of Regents v. Ligot Telan, the
In the case of People v. Castaneda….so this must be Supreme Court said the Regional Trial Court to admit
a criminal case. In this case, the Supreme Court ruled or to allow a students to enroll when such students
that a judgment of acquittal in a criminal case may be have been shown to have committed
a assailed. Normally, a judgment of acquittal is misrepresentation in his enrollment papers. So in this
inappealable. If it is appealed, then it violates the case, the Regional Trial Court issued a writ of
rights of the accused against double jeopardy. If a mandamus to admit Ligot Telan who was earlier
judgment of acquittal is appealed by the prosecution, shown to have committed misrepresentation in his
then right of the abuse against double jeopardy is enrolment papers. So the Supreme said that the
violated, so that's not allowed. Appeal of a judgment Regional Trial Court committed a grave abuse of
of acquittal by the prosecution is not allowed. But discretion in issuing the writ of mandamus. Although
according to the Supreme Court, in the case of the RTC has jurisdiction in issuing a writ of
People v. Castaneda, a judgment of acquittal may be mandamus, it committed grave abuse of discretion
assailed through a petition for certiorari provided it is and therefore the writ of mandamus was nullified.
shown that the court which rendered the judgment of
acquittal committed grave abuse of discretion. Since Now, under Section 1 of Rule 65, a petition for
a judgment of acquittal is inappealable. Therefore, the certiorari is intended to nullify only judicial or quasi-
judgment of acquittal may be assailed in a petition for judicial acts of the respondent. But in the case of
certiorari. Remember, a petition for certiorari may be Tuazon v. Register of Deeds of Caloocan City, the
filed, if there is no appeal available. Since a judgment Supreme Court said, while a writ of certiorari may
of acquittal cannot be appealed, it may be reviewed nullify only judicial or quasi-judicial acts of
in a petition for certiorari provided the ground for a respondent, the writ of certiorari may also nullify the
petition for certiorari is present, which is that the court unlawful exercise of judicial power by an executive
which render the judgment of acquittal committed officer. So under Section 1, a petition for certiorari
grave abuse of discretion. may be filed only against a tribunal, board or officer
exercise even judicial or quasi-judicial functions. In
You may ask, sir, but double jeopardy will now apply this case, it was an executive officer which committed
if a judgment of acquittal is assailed in a petition for grave abuse of discretion when it performed
certiorari? unlawfully a judicial function. So according to the
Supreme Court, a petition for a writ of certiorari may
Double jeopardy will not apply, because if the court also nullify the executive officers’ unlawful exercise of
which rendered the judgment of acquittal committed judicial power. So here the respondent is not a
grave abuse of discretion, then it is as if that court had tribunal, board officer exercising judicial or quasi-
no jurisdiction. Because great abuse of discretion is judicial function. It is Executive Officer, that executive
equivalent to lack of jurisdiction, or excess of officer does not exercise, judicial or quasi-judicial
jurisdiction. So, if it is shown in the petition for functions. But the action of that executive officer
certiorari, that the court which rendered the judgment which unlawfully performed a judicial function. It has
of acquittal acted with grave abuse of discretion, no jurisdiction to perform a judicial function may be
therefore, it is as if the court which render judgment nullified through a writ of certiorari.
of acquittal had no jurisdiction over the case. You
know that one of the elements of double jeopardy is In the case of GSIS v. Court of Appeals, the Supreme
that the court which rendered the judgment or Court said a petition for certiorari is not a cure for a
acquitted the accused in a previous case, must have lost appeal. What does this mean?
jurisdiction for double for double jeopardy to apply.
But if the court which rendered the judgment of
________________________________
Page 19 of 75
Let me repeat, in the case of GSIS v. Court of may only be filed against them if they perform a
Appeals, the Supreme Court said that a petition for ministerial function. Mandamus cannot compel any of
certiorari is not a cure for a lost appeal due to the these entities, how to exercise its judicial or quasi-
negligence of the aggrieved party. So, if appeal was judicial functions, which by its very nature, require the
available to the aggrieved party, but through his exercise of discretion or judgment.
negligence failed to avail of that remedy, appeal. He
cannot later on file a petition for certiorari saying that The next question is: On what grounds may a
there is no appeal available to me. Because he lost petition for mandamus be filed?
his right to appeal. There are two grounds.
So, in the case of GSIS v. Court of Appeals, the  The first ground is when the respondent
Supreme Court said you cannot cure your failure to unlawfully neglects the performance of an
appeal due to your negligence by later on filing a act, which the law specifically enjoins as a
petition for certiorari, saying there is no more appeal, duty. What I just said, is the classic definition
there is no appeal. So I can now file a petition for of a ministerial duty or function. It is an act
certiorari. specifically enjoined by law as a duty. In
performing a ministerial act, a person is not
Now, in the case of Reyes v. Sandiganbayan, the allowed to exercise his discretion or
Supreme Court said that a petition for certiorari is judgment.
intended only to correct errors of jurisdiction not error  The second ground is that the respondent
or judgment. You know of course the distinction unlawfully excludes another from the use or
between errors of judgment and errors of jurisdiction. enjoyment of a right or office, to which such
We discussed that already earlier. So, a petition for other person is entitled.
certiorari is a cure only or is intended only to correct
errors of jurisdiction and not errors of judgment. Take note, there are two grounds for which a petition
for mandamus may be filed.
What is the remedy for errors of judgment?
First, that the respondent unlawfully neglects the
The remedy is appeal. performance of an act, which is specifically enjoined
by law as a duty. The second ground is that the
respondent unlawfully excludes another from the use
RULE 45 (SEC. 3): MANDAMUS or enjoyment of a right or an office.
This is a continuation of the recorded class discussion On what conditions may a petition for mandamus
in Remedial law review 2, or last Saturday and be filed.
Sunday. We ended our discussion last Sunday with
prohibition under Rule 65. And so we will start our The condition is the same as in certiorari and
discussion now with Mandamus under Section of prohibition. The filing of a petition for mandamus may
Rule 45. be allowed only if there is no appeal, or any plain
speedy or adequate remedy in the ordinary course of
The first question that we should ask is: Against law. By now, you would have realized that the three
whom may an aggrieved party file a petition for petitions and the Rule 65 are remedies of last resort,
mandamus? which means that they cannot be availed off, if other
remedies are still available.
Section 3 provides that a petition for mandamus may
be filed against a tribunal, corporation, board, officer Let's go now to the next question.
or person exercising ministerial functions. While the
entities mentioned earlier, may also exercise judicial
or quasi-judicial functions. A petition for mandamus
________________________________
Page 20 of 75
When the aggrieved party files a petition for  Second, the respondent must have an
mandamus. What relief is he asking from the imperative duty to perform said action without
court? the power to exercise discretion.
What does he want the court to do for him? Of course, Let's discuss now the case of Social Justice Society
the relief sought would depend on the ground for vs. Atienza. In this case, the Supreme Court said that
which the petition was filed. If the ground was that the since a city mayor is mandated by the local
respondent unlawfully neglected the performance of government code to enforce all laws and ordinances
an act, which the law enjoins us a duty, the relief relative to the governance of the city, he may be
sought would be for the court to issue a writ of compelled to enforce an existing ordinance.
mandamus to compel the respondent to perform the
act sought to be performed. Let's go to another case, this case of Cudia vs.
Superintendent of the PMA. According to the
If the ground was that the respondent unlawfully Supreme Court, the PMA, or the Philippine Military
excluded the petitioner from the use or enjoyment of Academy, cannot be compelled by mandamus to
the right or office, the relief sought would be for the restore the rights and entitlements of a full-fledged
court to issue a writ of mandamus to compel the cadet to his graduation, after he has shown to have
respondent to allow the petitioner the use or violated the school's honor code as this would violate
enjoyment of his right or office. the PMA's academic freedom.
Let's go to the next question. In this last case of Villanueva vs. JBC. The Supreme
Court ruled that the JBC cannot be compelled by
What court exercises jurisdiction over petitions mandamus to include an applicant in the list of
for mandamus. By express provision of law, the candidates for the Regional Trial Court. So this was
Regional Trial Court, Court of Appeals and the the ruling of the Supreme Court in this case of
Supreme Court exercise concurrent original Villanueva vs. JBC. You might have noticed that the
jurisdiction over petitions for mandamus. Since there doctrines of the cases that I stated were in one or two
is concurrent original jurisdiction among these three sentences. so, but this are all that you have to
courts of different levels, the rule on hierarchy of remember in these cases, all you have to remember
courts must be complied with. these doctrines.
Let us now discuss certain doctrines on Mandamus

laid down by the Supreme Court in some cases. RULE 66: QUO WARRANTO
Let's start with a case of Hipos,Jr. versus Bay. In this
case, the Supreme Court said that while a writ of Let us now discuss Rule 66, Quo warranto.
mandamus may not compel a respondent exercising
discretionary power, how to exercise his power, it may Quo warranto is a Latin phrase, which means by what
compel him to exercise his power. Thus, while a judge authority. So, a person against whom a petition for
may be compelled to act on a motion, long pending quo warranto is filed is therefore asked the question,
before it, the judge may not be compelled, either to by what authority do you hold public office? Or by
grant or to deny the motion. what authority do you exercise a franchise?
Also, in this case of Hipos,Jr. versus Bay, the Knowing what quo warranto literally means? Let me
Supreme Court said that in order for a writ of now ask the first question:
mandamus, to properly issue two requisites must
concur: Against whom may a petition for quo warranto be
 First, the petitioner must have a clear legal filed.
right to the action sought. A petition for quo warranto may be filed against:
________________________________
Page 21 of 75
 First, a person who unlawfully holds a public unlawfully held by another take note. Before a private
office or exercise a franchise. individual may properly file a petition for quo warranto
 Second, a petition for quo warranto may also in his own name. He must clearly allege in the
be filed against a public officer who while petition, that he is the one who is by law entitled to the
validly holding office performs an act which public office being usurped by the respondent. If it is
by law constitutes a ground for the forfeiture the Solicitor General or public prosecutor who is filing
of his office. the petition for quo warranto it is not necessary, that
 Lastly, a petition for quo warranto may also someone should claim that he is entitled to the public
be filed against an organized group of office being usurped. It is enough if it is shown in the
persons who acts as a corporation within the petition, that the person actually holding the public
Philippines without being legally incorporated office is a usurper. that he is holding the public office
or without authority to act as a corporation. unlawfully.
Please note, that when I mentioned the persons Going now to the next question,
against whom a petition for quo warranto may be filed,
the grounds for which the petition may be filed against When should the petition for quo warranto be
them were also specified. filed?
The answer to this question should be qualified. If the
Let me therefore go to the next question. quo warranto proceeding is to be initiated by the
Solicitor General or the public prosecutor, the petition
By whom may a petition for quo warranto be shall be filed within one year from the cause of the
filed? ouster.
A quo warranto proceeding may be initiated by the
Solicitor General or public prosecutor on the one But if the petition is to be filed by a private individual,
hand, or by a private individual. then he should file it within one year from the time he
became entitled to the public office being usurped by
On the other hand, it is either mandatory or another.
discretionary on the part of the Solicitor General or
public prosecutor to file a petition for quo warranto. What does the phrase within one year from the
The Solicitor General or public prosecutor must, take cause of the ouster mean?
note must file a petition for quo warranto, if so directed If the respondent is to be ousted, what would be the
by the President of the Philippines, or if the Solicitor cause or ground of his ouster? Of course, it would be
General or public prosecutor are convinced that there the usurpation of the public office or the intrusion into
is sufficient evidence to successfully prosecute a the public office or the unlawful holding of the public
petition for quo warranto against a person. office. So the one year period should therefore be
counted from the time the usurpation, intrusion, or
If the filing of a petition for quo warranto is requested unlawful holding of the public office started.
by a party, other than the President of the Philippines,
the Solicitor General or public prosecutor has the What about the phrase within one year, from the
discretion whether to file or not to file the petition for time the petitioner acquired the right to the public
quo warranto. I mentioned earlier that a private office being usurped?
individual may also file a petition for quo warranto. This simply means within one year, from the time the
petitioner was validly appointed, or elected to the
When may a private individual file a petition for public office being usurped.
quo warranto?
Independent of the Solicitor General or public Take note, this time the one-year period is not
prosecutor, a private individual may, in his own name, counted from the time the usurpation started. But
file a petition for quo warranto if he claims to be legally from the time the petitioner, a private individual,
entitled to the public office being usurped, or became entitled to the public office being usurped.
________________________________
Page 22 of 75
a Regional Trial Court, he may finally in the
Finally, in what court may an action for quo Regional Trial Court, or Manila, even if the
warranto be commenced? respondent is not a resident of Manila, but in
Subject to the rule on hierarchy of courts a petition for some other place.
quo warranto may be filed either with a Regional Trial
Court, the Court of Appeals or the Supreme Court. Let us now discuss some important doctrines on quo
This means that these three courts of different levels, warranto enunciated by the Supreme Court in recent
exercise concurrent original jurisdiction over petitions cases.
for quo warranto
Let's start with the famous case of Republic of the
How about venue? Philippines versus Sereno. I'm sure you are familiar
with this case, Republic of the Philippines versus
What is the rule in determining proper venue in Chief Justice Sereno.
petitions for quo warranto?
In this case, the Supreme Court ruled that an
If the petition is filed with the Court of Appeals, or the impeachable officer under the 1987 constitution may
Supreme Court, venue is, of course, not an issue. be removed from office or ousted by a petition for quo
There is only one Supreme Court and only one Court warranto. If it can be shown that the respondent was
of Appeals. But if the petition is to be filed with the not lawfully or validly appointed. You know that under
Regional Trial Court, it should be filed in the Regional the 1987 constitution, I paraphrase an impeachable
Trial Court of the place where the respondent resides. public officer may be removed only by impeachment.
Take note, this is different from the provisions of Rule That's it's a clear provision in the 1987 constitution.
4. So if the petition for quo warranto is to be filed in But in this case of Republic of the Philippines versus
the Regional Trial Court, it should be filed in the Sereno, the Supreme Court laid down a landmark
Regional Trial Court of the place where the doctrine. a landmark doctrine that an impeachable
respondent resides. officer, under the 1987 constitution may be removed
not only by impeachment, which is provided by the
If you remember, under Rule 4, the provisions of Rule Constitution, but also by petition for quo warranto
4 will not apply in two instances: provided it is shown that the impeachable officer was
not validly or lawfully appointed. Now, does that
 First, when there is a specific rule or law that contravene or contradict the provision in the 1987
provides otherwise. constitution that a public an impeachable public
 Second is when the parties have agreed in officer may only be removed from office by
writing before the filing of the action on the impeachment? According to the Supreme Court in
exclusive venue of their action. this case of Republic versus Sereno, No, it does not
contradict the 1987 Constitution, because when an
So, this is one instance when a specific rule or law impeachable officer is removed by a petition for quo
provides otherwise, meaning the provisions of rule warranto, it must be shown that the impeachable
four will not apply in determining proper venue. It is officer was not by validly or lawfully appointed. So if
this rule under Rule 66, that will apply. So, if the the impeachable officer was not validly appointed or
petition for quo warranto is to be filed with a Regional was not lawfully appointed, then there's no
Trial Court, it shall be filed in the Regional Trial Court impeachable officer to speak of. So that was the
of the place where the respondent resides. There is, reasoning of the Supreme Court. While an
however, an exception to this rule. If it is the Solicitor impeachable officer may only be removed by
General, who is filing the petition for quo warranto. He impeachment, if there is no impeachable officer in the
may file it in the Regional Trial Court of Manila, first place, because he or she was not validly
regardless of the place of residence of the appointed. So in effect, the officer being removed by
respondent, let me repeat so if the petition for quo petition for quo warranto is, in fact, not even a public
warranto is to be filed by the Solicitor General, in
________________________________
Page 23 of 75
officer. It's not even because it will be shown that the whether to oust a sitting Chief Justice of the Supreme
respondent was not validly or lawfully appointed. Court.
The next doctrine that was established, in this case, Similarly, it would be absurd, that's why that petition
landmark case of Republic vs. Sereno. In this case, against Chief Justice Sereno could have only been
the Supreme Court also ruled that quo warranto filed with the Supreme Court. Okay, so there, take
and impeachment may proceed independently of note there are exceptions to the rule on hierarchy of
each other, as they are distinct as to their courts, and this one is clearly an exception to the rule
jurisdiction, as to their grounds, as to the on hierarchy of courts. Another important doctrine
applicable rules, and as to their limitations. that was laid down in the case of Republic versus
Sereno is that, the one-year period for filing the
The Supreme Court said an impeachment proceeding petition for quo warranto. Remember, he mentioned
and a petition for quo warranto against the same that one-year period. So, the one-year period for filing
public officer may go hand in hand. They may the petition for quo warranto does not apply to the
proceed independently of each other because they government. So, when the petition is filed by the
have different jurisdiction. Impeachment starts with Republic of the Philippines, through let us say,
the lower house, Congress. And after the public through the Solicitor General, then the one-year
officer is impeached, the Senate will try the public reglementary period for filing the petition for quo
officer who was impeached. a petition for a petition for warranto will not apply.
quo warranto is cognizable by the Regional Trial
Court, the Court of Appeals and or the supreme court. Prescription does not apply to the government.
Now, you may ask, since if there is concurrent original So, the one-year reglementary period for filing the
jurisdiction among several courts of different levels, petition would not apply to the government. The
as I mentioned earlier, the rule on hierarchy of courts petitioner here, although it was filed by the Solicitor
must be complied with. In this case of Sereno, the General Calida, the petitioner, as you might have
petition was for quo warranto was filed directly with noticed, is the Republic of the Philippines. So, the rule
the Supreme Court. Was that not a violation of the on prescription does not apply to the government or
rule on hierarchy of courts should the petition have to the state. Okay, so that's another, although this is
been filed in The Regional Trial Court could the not a new doctrine, laid down in the case of Sereno.
petition had been filed in the Regional Trial Court, or This is not a new doctrine.
should a petition have been filed in the Court of
Appeals? Another doctrine that was established in the case of
Republic versus Sereno is that the one-year
Based on the rule on hierarchy of courts, the petition reglementary period for filing a petition for quo
for quo warranto against the former Chief Justice warranto may be counted not only from the cause of
could not have been filed in the Regional Trial Court, the ouster but also from knowledge of the cause of
although the Regional Trial Court exercises regional the ouster. Okay, going now, to the case of Sereno,
jurisdiction over petitions for quo warranto. But that going back to the case of Sereno. Sereno, had been
particular petition against the former Chief Justice Chief Justice for about five years when the petition
could not have been filed with the Regional Trial was filed, so If you apply the rule that the petition for
Court. Imagine if it will be a Regional Trial Court judge quo warranto should be filed within one year from the
who will decide whether to oust a sitting Chief Justice cause of the ouster that that period has long expired.
of the Supreme Court? That's absurd. A Regional
Trial Court Judge deciding to oust a sitting Chief But the Supreme Court said that the one-year period
Justice of the Supreme Court. Or imagine if the may be counted not only from the cause of the ouster,
petition for quo warranto against Chief justice Sereno but from knowledge of the cause of the ouster. The
was filed with the Court of Appeals? It will be a question is, when did the petitioner acquire
division of the Court of Appeals, which will decide knowledge of the cause of the ouster? If you
remember, the fact that the former Chief Justice failed
________________________________
Page 24 of 75
to submit the required SALNs with the JBC came out to be installed in lieu of the oust of that official. Okay,
only during the impeachment hearings in Congress. so that's the distinction between an election protests
So if that was the time, when the petitioner, through and a petition for quo warranto in the case of Lokin vs
Solicitor General Calida came to know about the COMELEC.
cause of the ouster, then the petition was filed within
that one year period, counted not from the cause of Now, in the case of De Castro vs Carlos, the Supreme
the ouster, but from the time knowledge of the cause Court said that the private person who files a petition
of the ouster was acquired by the petitioner. for quo warranto in his own name must prove that he
is entitled to the controverted public office. Now, this
Okay, so we are done with Republic versus Sereno. is an instance when it is a private individual who files
Take note of those doctrines. Except for one or the the petition for quo warranto because he is claiming
other doctrines established in that case, our landmark that he is the one entitled to that public office being
doctrine, so remember them. usurped by another. So, the petitioner, a private
individual is claiming that he is the one who is entitled
So let's go now to the case of Calleja vs. Panday. In to that public office being usurped.
this case, of Calleja vs. Panday, the Supreme Court
said, a petition for quo warranto may not be filed So what should that petitioner prove? What
against a person who usurped an office in a should he allege petition?
private corporation. So, a petition for quo warranto
may not be filed against a person who is usurping not What should he prove if he is a private individual who
a public office, but an office in a private corporation. filed the petition for quo warranto because he claims
The remedy is not a petition for quo warranto if the to be entitled to the public office being usurped by
office being usurped is not a public office, but an office another, he should allege in his petition, and later on
in a private corporation. Let me repeat now, a petition prove he has the right to that public office he should
for quo warranto may not be filed against a person explain how did he acquire the right to the public office
who usurps an office in a private corporation. and he must prove it. He must prove that how he
acquired that right to that public have is in question.
Let's go on up to the next case of Lokin vs COMELEC. Okay. So we are done with quo warranto.
So what doctrines were established in this case of RULE 67: EXPRORIATION

Lokin vs COMELEC. The Supreme Court said that
while an election protest is filed by the losing What power does the state exercise when it takes
candidate, to oust the winning candidate so he can be private prop for public purpose?
installed. So, this is an election protest, by the way, - Power of eminent domain.
the Supreme Court made a distinction between an
What kind of power is eminent domain?
election protest and a petition for quo warranto. So, a - Inherent power of the state
petition for an election protest is filed by a losing
candidate in an election for what purpose? To oust What do you mean by inherent power of the state?
the winning and proclaimed candidate, so he can be Does it need to be conferred by the constitution?
installed. - No. It is inherent one it is established; the
state has that power.
How does a petition for quo warranto differ from
How does the state exercise power of eminent
an election protest? domain?
- State = juridical fiction
A petition for quo warranto may be filed by any voter
not necessarily the losing candidate. So, a petition for Who will file/ act to exercise power of eminent
quo warranto may be filed by any voter, for what domain?
purpose? To oust an unqualified, ineligible person - The Office of the Solicitor General
from his elective office without the petitioner seeking
________________________________
Page 25 of 75
*executive branch headed by pres. chief executive - File a notice of appearance and
will exercise power of eminent domain manifestation and state that his objection to
the just compensation. Then the court will
Can power of eminent domain be delegated by the then issue an order of expropriation.
state to other entities?
- Yes Two (2) stages:
Who are the alter egos? 1) WON expropriation is proper or taking is

- Department Secretary proper
May PED be delegated by the government to other In reference to Petitioner:

entities? When would the taking of prop not be proper?
- Yes. To LGUs/public utilities and private -WON authority to take the property?
corporations - LGU WON there is an ordinance?
How is power of eminent domain delegates to LGU? Court determines that it has the authority:
- It is exercised by Exeutive Branch thru *Constitutional provision on power of eminent
congress who will make a law to exercise domain = Limitation of LGU: takings are for
power of eminent domain (conferring) public use
Is there a law? 2) Determination of Just Compensation

- Yes. Local Government Code (RA7160, Sec
19): LGU are given the power to exercise Suppose defendant objects:
power of eminent domain. “for the benefit of There need to be a hearing then court to
the poor and the landless resolve
*state exercise power of eminent domain. If court determines that it is for public use and
petitioner has power of eminent domain:
How will LGU exercise power of eminent domain? Court to issue an order of expropriation and
- Expropriation proceedings will be filed thru its petitioner will make a deposit.
agents (Mayor/Governor)
*order of expropriation – interlocutory order
Condition: There must be an ordinance – specify the but ROC order is interlocutory and
prop to be expropriated) and payment of 15 % which unappealable. aggrieved party may appeal
is offered to owner and owner rejects such offer.
Who is the defendant: the aggrieved party
*mere resolution would not suffice to exercise power
of eminent domain Mode of appeal: record on appeal
How does the senate/ LGU exercise power of *appeal by D will not stop the court from
eminent domain? Suppose there’s an offer to the determining J. Com.
owner and owner refuse? What may the do?
- The LGU or the state may file a verified How court determine just compensation?
complaint w/ the RTC (pecuniary estimation) - Court to appoint 3 commissioners who will
assist in determining just compensation
Suppose defendant objected to the taking of the
property? Who should be impleaded as defendants? Formula:
- Occupants, owners, one who claims
ownership or interest; persons who has an Fair market value
interest a right to passes the prop. (Entitled /
in possession of the prop) Assessed value and real market value. Selling piece;
Open and free market.
Suppose defendant does not object and accept the
offer of the (object to just compensation) What should Current market value at time of taking/upon filing
defendant do? which came first.
________________________________
Page 26 of 75
Current value at time of taking and (based on selling 67 recognizes the possibility that the property sought
piece and in an open and free market value) to be expropriated may be titled in the name of the
- Price that property can be bought in the open Republic of the Philippines, although occupied by
market.
private individuals, and in such case an averment to
- Loss of owner should be measured by just
Compensation that effect should be made in the complaint. The
- Formula: Consequential damage less instant expropriation complaint did aver that the NAIA
consequent benefit 3 complex "stands on a parcel of land owned by the
Bases Conversion Development Authority, another
When may petitioner take possession of the agency of the Republic of the Philippines
property?
- Upon filing of complaint P may take
possession. Provided:
In Abad vs. Fil-Homes Realty, the mere issuance of
Conditions (upon filing): a writ of possession in favor of the plaintiff does not
transfer ownership of the lot in favor of the plaintiff.
Deposit depends on the assessed value: Such issuance is only the first stage in expropriation.
a) If petitioner is the national government (For In the present case, the fact that a writ of possession
road construction) had already been issued in favor of the plaintiff in an
- Deposit to an assessed value of the prop expropriation proceeding would not render moot a
indicated in the tax declaration. and deposit pending action for unlawful detainer between private
in an authorized gov. depository parties involving the same lot.
- Deposit should be in money but ROC cert of
deposit allowed by court Expropriation of lands consists of two stages:
- Court order sheriff to take the prop. The first is concerned with the determination of the
authority of the plaintiff to exercise the power of
b) If petitioner is an LGU eminent domain and the propriety of its exercise in
- Deposit of 15% FMV w/ the court. Indicated the context of the facts involved in the suit. It ends
in the latest tax declaration. with an order, if not of dismissal of the action, "of
condemnation declaring that the plaintiff has a lawful
c) If petitioner is the national government right to take the property sought to be condemned, for
purpose national (For infrastructure per RA the public use or purpose described in the complaint,
8974) upon the payment of just compensation to be
- Payment of the 100% zonal value passed to determined as of the date of the filing of the complaint.
the owner.
The second phase of the eminent domain action is
In Republic vs. Andaya, "Taking," in the exercise of concerned with the determination by the court of "the
the power of eminent domain, occurs not only when just compensation for the property sought to be
the government actually deprives or dispossesses the taken." This is done by the court with the assistance
of not more than three (3) commissioners.
owner of his property or of its ordinary use, but also
when there is a practical destruction or material
It is only upon the completion of these two stages that
impairment of the value of his property the
expropriation is said to have been completed. The
enforcement of the legal easement on a portion of the process is not complete until payment of just
owner’s property prevented ingress and egress to his compensation.
remaining property and turn it into a catch basin for
the floodwaters. Department of Agrarian Reform Adjudication
Board (DARAB)
In Asia’s Emerging Dragon Corp. vs. DOTC, the - A quasi-judicial agency which has the
right of eminent domain extends to personal and real primary jurisdiction to determine just
property, and the NAIA 3 structures, adhered as they compensation
are to the soil, are considered as real property. The - An order of DARAB fixing just compensation
public purpose for the expropriation is also beyond becomes final and executory within 15 days
dispute. It should also be noted that Section 1 of Rule from receipt of landowner of the said order
________________________________
Page 27 of 75
RULE 68: FORCLOSURE OF REAL ESTATE If debtor is able to pay – no foreclosure
MORTGAGE
2) If debtor fails to pay – period prescribe
- Plaintiff file motion with notice but hearing is
A deed of real estate mortgage – accessory contract not required for the sale of prop at public
co loan auction.
Purpose: To secure a loan After the sale, plaintiff will file a motion and order
Initiatory: Complaint confirm the sale.
Who will file the complaint real estate mortgage?
- Mortgagor/creditor
RULE 69: PARTITION
When?
- if mortgagor fails to pay mortgagee. Who may file partition?
- Person who is entitled or has the right to
Two (2) Kinds: compel the partition.
1) Judicial
2) Extra judicial Who has the right to compel partition?
- Co-owner of a property who has the right to
 Fault of mortgagor/debtor – extrajudicial partition.
foreclosure
 Judicial foreclosure – Rule 68 *If one co-owner wants to determine his share then
 Extrajudicial foreclosure – Act 3135 he may compel co-owners for partition
 Judicial foreclosure of real estate
mortgage When partition is filed, what will the court resolve?
Mortgage CR – File only if debtor is in default 1) WON plaintiff has the right to compel
- Obligation became due and creditor partition. If court determines that plaintiff has
demands unless there’s a stipulation that the right to compel partition, court will grant
demand is not necessary. the complaint
- Pleading: Complaint
2) Court will issue an order directing the parties
Court: It depends to partition the prop among themselves.
- If real estate mortgage is considered as
incapable of pecuniary estimation, then it is If able to do so – Submit to court the
RTC. instrument of conveyance, convey each
- If real estate mortgage is considered as real respective share.
action: depends on the assessed value.
(latest jurisprudence) If they do not agree – Court will appoint not
more than 3 commissioners to assist in the
Action for real estate mortgage partition.
Stages:
1) Court will resolve: What court has jurisdiction?
- WON the debtor is in default and the amount - Considered as a real action so it depends on
of the of debt the assessed value of the real property
- If court that debtor is in default and the exact
amount = Court will render a judgement.
RULE 70: FORCIBLE ENTRY AND UNLAWFUL
The tenor of judgement: Court will not order the DETAINER
forem. But it will order D to pay the with not less than
90 but note than 120 days from entry of judgement
Forcible Entry
that should D fail the w/n the prescribed period, then
the prop will be sold at public auction and proceed will
Who may file?
be used to pay the of mortgage.
________________________________
Page 28 of 75
- One who is deprived of the real property by Not upon expiration but if after demand by P to vacate
force, intimidation, threat, strategies or and refuse to vacate, from there he unlawfully
strength (FITSS) possessed the property.
When to file? In Forcible Entry – FISST

- At any time within 1 year from such unlawful In Unlawful Detainer – Upon expiration of the right to
deprivation (dispossession) withhold and upon refusal to vacate upon demand
How was plaintiff deprived? By what means (FITSS) - Within 1 yearr from demand that after
demand it became unlawful.
Actual date of dispossession must be alleged in the
complaint. Demand is date of last demand must be alleged.
Is demand to vacate required? What kind of action is Unlawful Detainer?

- No REAL ACTION
What kind of action is forcible entry? Why real action?

- REAL ACTION – affects title/ possession or - It affects possession of real property.
interest therein.
Ownership is not an issue for forcible entry/unlawful
Alleged that plaintiff was in prior possession of detainer.
property.
Court has no juris over the ownership of real property.
What court has jurisdiction?
- MTC has exclusive jurisdiction regardless of May the court resolve the issue of ownership?
the assessed value/ value of damages - No
prayed for.
GR: Court cannot resolve ownership.
Unlawful Detainer When may MTC can resolve the issue of ownership?
Who may file? EXP: Only when defendant raise the defense that he
- Lessor, vendor, vendee, other person against is entitled to the possession because he is owner of
whom possession is unlawfully withheld after the prop.
the expiration
Resolution of the court as to the ownership is not
When to file? conclusive.
- Within 1 year from expiration of the right to
withhold the property Action for forcible entry/unlawful detainer – covered
by Rules on Summary Procedure
Forcible Entry vs. Unlawful Detainer What are the features on Rules on Summary
Procedure?
In Unlawful Detainer – Defendant has initial right of - All pleadings must be verified.
possession.
In Forcible Entry – Defendant has the no right of Only compulsory counter claim can be filed.
possession.
May defendant file a cross claim?
In Unlawful Detainer – Defendant is in lawfully - Yes, because all cross claims are
possession of property due to some contract compulsory it arise from same transaction.
When does at became unlawful? Cross claim is always compulsory

- When right to possess express
- When it became unlawful (contract of lease) Period to file answer:
15 days – OCA
10 days – Summary Procedure
________________________________
Page 29 of 75
Motion to Dismiss / Reply (a) Misbehavior of an officer of a court in the
GR: Prohibited performance of his official duties or in his official
EXP: Lack of jurisdiction or failure to comply with transactions;
condition precedent
(b) Disobedience of or resistance to a lawful writ,
Where to file process, order, or judgment of a court, including
- MTC where the real property is situated the act of a person who, after being dispossessed
or ejected from any real property by the judgment
If defendant fails to file answers, upon motion, or process of any court of competent jurisdiction,
defendant may be in default (OCA) but in summary enters or attempts or induces another to enter
procedure (forcible entry/unlawful detainer) fails to file into or upon such real property, for the purpose of
an answer. Plaintiff may upon motion to court to executing acts of ownership or possession, or in
render judgment on the compliant (and court may any manner disturbs the possession given to the
even motu proprio). person adjudged to be entitled thereto;
No presentation of witness in summary procedure. (c) Any abuse of or any unlawful interference
But it will be based on JAR nor cross examination in with the processes or proceedings of a court not
court. constituting direct contempt under section 1 of
this Rule;
RULE 71: CONTEMPT (d) Any improper conduct tending, directly or

indirectly, to impede, obstruct, or degrade the
administration of justice;
Who may be penalized for contempt?
- A person guilty of misbehavior in the (e) Assuming to be an attorney or an officer of a
presence of or so near a court as to obstruct court, and acting as such without authority;
or interrupt the proceedings before the same,
including disrespect toward the court, (f) Failure to obey a subpoena duly served;
offensive personalities toward others, or
refusal to be sworn or to answer as a witness, (g) The rescue, or attempted rescue, of a person
or to subscribe an affidavit or deposition or property in the custody of an officer by virtue of
when lawfully required to do so (Sec 1) an order or process of a court held by him.
What is the penalty? How may court penalized for indirect contempt?
- If committed against RTC – Fine not - As a rule, there must be a written charge and
exceeding P2,000 or imprisonment of 10 such will be given an opportunity to answer
days and hear and defend himself.
- If MTC – Fine not exceeding P200 or - If court wants to initiate the proceeding for
imprisonment of 1 day indirect contempt, what should court do?
Order/written charge, respondent to show
Contempt is in the nature of both civil and criminal cause why he should not be cited for I
action (Both fine and imprisonment) contempt.
- Direct contempt – No opportunity to answer
What is the remedy for direct contempt? charge unlike in indirect contempt –
- Prohibition/Certiorari (Rule 65) Respondent given opportunity to answer and
be heard.
Where would the aggrieved party file the petition if the
order of contempt was issued with the RTC? Who else can initiate indirect contempt?
- File with CA. - Independent action by a verified petition (any
person who is aggrieved by the respondents)
Remedy of aggrieved party imposed penalty of – SCA
imprisonment for 10 days
- File a bond in an amount fixed by the court. Where should petition for contempt be filed?
- If indirect contempt – RTC / higher court
Who may be penalized for indirect contempt? (Sec 3)
________________________________
Page 30 of 75
- If against MTC – File with the RTC where petitions for settlement of estate whether testate or
MTC is. intestate depending on the gross value of the estate.
- It may be instituted with the MTC subject – Under the rules, when one of the spouses dies, the
Appeal to RTC.
liquidation of the common properties of the spouses
meaning the surviving spouse and the deceased
What is the penalty for indirect contempt? (Sec 7) spouse shall be done in the settlement of the estate
If RTC – fine not exceed P30K or imprisonment of 6 of the deceased spouse. Okay, let me repeat, so,
months when one of the spouses dies, the liquidation of the
If LC – P5K or imprisonment of 1 month common properties of the spouses shall be done in
the settlement of the estate of the deceased spouse.
What is the remedy of a person who is held guilty for
So, before the common properties of the deceased
indirect contempt? (judgement has been rendered)
- Ordinary appeal (CA/RTC) spouse, and the surviving spouse can be liquidated a
petition for settlement of estate of the deceased
Remedy of respondent to stay the execution? spouse must first be filed.
- File a bond fixed by court
- Court may allow execution pending appeal The question is, what would be the gross value of the
exception estate of the deceased spouse? it cannot yet be
determined because half of the common properties of
Judgment in contempt is immediately executory
unless respondent gave a counter bond. the spouses would be the estate of the deceased
spouse. But that could not yet be determined, until the
Contempt is committed in connection with pending common properties of the spouses are liquidated and
case. It should be alleged in the petition, so that it may the liquidation will be done in the settlement
be consolidated with the court to the case where it is proceedings. So, a petition for settlement must be
pending. filed first, before the common properties of the
spouses can be liquidated and the gross value of
the estate of the deceased spouse can be
RULE 72-90: SPECIAL PROCEEDINGS
determined.
(SETTLEMENT OF ESTATE)
So, what would be the basis of jurisdiction? Since we

Q: What court has jurisdiction over petitions for
cannot yet determine that the gross value of the
settlement of estate, whether testate or intestate?
estate of the deceased spouse when the petition for
settlement filed. Q: What would be the basis of the
A: Under Section 33, paragraph 1 of BP 129, the
jurisdiction? A: Under the rules under existing
municipal trial court shall exercise exclusive original
jurisprudence, the basis of the jurisdiction would be
jurisdiction over petitions for settlement of estate
the gross value of the common properties of the
where the gross value of the estate does not exceed
spouses. Let us say, the gross value of the common
300,000 pesos outside Metro Manila, or does not
properties of the spouses is let us say, just to give an
exceed 400,000 pesos in Metro Manila. Under
example, it's 600,000 pesos, that's the gross value of
paragraph 4 section 19 of BP 129, the Regional Trial
the common properties of the spouses. So, you
Court shall exercise exclusive original jurisdiction
cannot liquidate that yet. You have to file the petition
over all matters of probate, meaning over petitions for
for settlement of the estate of the deceased spouse.
settlement of estate, whether testate or intestate,
Now that will be the basis of the jurisdiction of the
where the gross value of the estate exceeds 300,000
court.
pesos outside Metro Manila or exceeds 400,000
pesos in Metro Manila.
So, where do you file the petition for the settlement of
the estate of the deceased spouse since the gross
So, either the municipal trial court or the Regional
value, the common properties of the spouses are
Trial Court exercises exclusive take note not
600,000 pesos? You will file the petition for the
concurrent but exclusive original jurisdiction over
settlement of estate in the Regional Trial Court. So
________________________________
Page 31 of 75
later, after the filing of the petition for settlement of the Q: So, what happens now, if the decedent was not
estate of the deceased spouse, you liquidate now, the a resident of the Philippines at the time, now, how
common properties be spouses. So most probably, do we determine proper venue?
the gross value of the estate of the deceased spouse
is 300,000 pesos, half the value of the common A: The first rule applies when the decedent was a
properties of the spouses. So, you finally determine resident of the Philippines at the time of his death. We
that the gross value of the estate of the deceased apply another rule, which says, when the decedent
spouse is 300,000, even if it is outside Metro Manila. was not a resident of the Philippines, at the time of his
death, the petition for the settlement of his estate shall
Q: What court exercises jurisdiction over a be file in the proper court of the place where his estate
petition for settlement of the estate of a person if or a portion thereof is situated. So, if the decedent
the gross value of the estate is not exceeding was not a resident of the Philippines, what will
300,000 pesos? A: It's the municipal trial court, but determine the proper venue of the settlement of his
the petition is the already filed in the Regional Trial estate would not be his residence in the Philippines
Court. Q: So, what should be done? The gross because he was not a resident of the Philippines at
value of the estate of the deceased spouse has been the time of his death, but where his estate or a portion
determined to be not exceeding 300,000 pesos but of this state is situated.
the petition has already been filed in the Regional
Trial Court. A: Under existing jurisprudence, the So, we covered all situations, the situation when the
Regional Trial Court shall continue to exercise decedent was a resident of the Philippines at the time
jurisdiction over the petition for settlement of estate, of his death, and the situation where the decedent
the petition will not be dismissed, according to was not a resident of the Philippines at the time of his
jurisprudence, the Regional Trial Court where the death.
petition is filed should continue exercising jurisdiction.
Now, suppose the decedent was not a resident of the
Now let's now discuss proper venue. Philippines at the time of his death and when he died,
he left a parcel of land in Las Pinas City but he also
Q: What is the rule in determining proper venue in left another parcel of land in Cebu City. He also left
petitions for settlement of estate of deceased another parcel of land in Davao City. So, let us
persons, whether testate or intestate? assume that the estate of the decedent is 10 million
pesos so that there's no question as to what court has
A: So, the first rule is, if the decedent was a resident jurisdiction. The question is, where may the petition of
of the Philippines, regardless of his nationality, at the the settlement of the estate be filed? let's call the
time of his death, the petition for the settlement of his decedent Mr. Lopez. He left an estate worth 10
estate shall be filed in the proper court of the place million, but located at different places Las Pinas,
where he was a resident at the time of his death. Cebu, and Davao.
Let me repeat. So, if the decedent was a resident of Q: Where do you file? in what Regional Trial Court
the Philippines, regardless of his nationality, at the of what place may the petition for the settlement
time of his death, the petition for the settlement of his of the estate of Mr. Lopez may be filed?
estate shall be filed in the proper court. Why in the A: Proper court is the Regional Trial Court, proper
proper court? because it may be a Regional Trial venue, is the Regional Trial Court in Las Pinas, it is a
Court, it may be a municipal trial court of the place proper venue because, a portion of his estate is
where the decedent was a resident at the time of his situated in Las Pinas and when he died, he was not a
death, take note, at the time, resident at the time of resident of the Philippines.
his death, not the place of his death, but where the
decedent was a resident at the time of his death, that Q: What about the Regional Trial Court of Cebu
determines proper venue. City, may the petition be filed in Regional Trial
Court of Cebu City? Is Cebu City a proper venue?
________________________________
Page 32 of 75
A: Yes, because a portion of the state of Mr. Lopez, the other courts, meaning the RTC in Cebu, the RTC
is it also situated in Cebu City. in Davao. The question is from what are they being
excluded? Are they being excluded from their
Q: May the petition be filed in Davao City? jurisdiction over that petition for settlement of a estate
A: Yes, of course that Davao city is also a proper where the gross value is 10 million, are they being
venue. excluded from their jurisdiction? That can't happen,
you cannot exclude a Regional Trial Court from its
Suppose one of the heirs of Mr. Lopez filed a petition jurisdiction over a petition for settlement where the
for the settlement of the state of Mr. Lopez. First in gross value of the estate is 10 million, because under
Las Pinas City. So, there was a petition for the the law, a Regional Trial Court exercises exclusive
settlement of estate filed in Las Pinas City. After that, regional jurisdiction. They could not be the RTC in
another heir of Mr. Lopez filed another petition for the Cebu and Davao City could not be excluded from their
settlement of the estate of Mr. Lopez in Cebu City, jurisdiction. They could not be deprived of their
then a third heir who is residing in Davao City filed a jurisdiction, because jurisdiction over the subject
third petition for the settlement of estate. matter of a case is conferred by law. So, from what
are they being excluded, because the RPC in Las
All these three petitions were filed in proper venues Pinas will exercise its jurisdiction to the exclusion of
where the estate or a portion thereof is situated if the the other courts. They are being excluded, not from
decedent was not a resident of the Philippines at the their jurisdiction, but from the exercise of their
time of his death. So, all proper venues, all proper jurisdiction. So, you have to make a distinction
courts. The question now is which one of them between jurisdiction which is conferred by law and the
should prevail? the three petitions cannot proceed, exercise of that jurisdiction, which is conferred by law,
only one of these petitions can proceed. a court may have jurisdiction over the subject matter
of the case. But that court, which has jurisdiction over
Q: How do we determine which one of the three the subject matter of the case, may be prevented from
petitions should prevail? exercising its jurisdiction, that's what happens. That's
A: We have to apply what is known as the from what the two other courts are being excluded
exclusionary rule, we applied this rule, this from the exercise of their jurisdiction. A good example
exclusionary rule, only in this kind of situation when of that is let us say, a court has jurisdiction over the
the decedent died, he was not a resident of the subject matter of a case. But the rule says when an
Philippines and have properties in the Philippines; the indispensable party whether a plaintiff, or a defendant
properties of his estate are located in different places is not impleaded in the action, the court which has
and several petitions for the settlement estate were jurisdiction over the subject matter of the case, cannot
filed. What is this exclusionary rule? It provides that tried the case and render a judgment in the case
the first court first taking cognizance of the petition for meaning the court, although it has jurisdiction over
settlement of the estate of the decedent shall exercise the subject matter of the case, cannot exercise its
jurisdiction to the exclusion of the other courts. The jurisdiction. Why? Because an indispensable party
first petition that was filed is in Las Pinas City so the was not impleaded in the action. Okay, so that's one
court that first took cognizance of the petition was the example. So, we have to make a distinction between
RTC in last Las Pinas City. So based on the jurisdiction of the court over the subject matter of the
exclusionary rule, the petition filed in the Regional case, which is conferred by law and the exercise of
Trial Court of Las Pinas City will prevail over the that jurisdiction.
petition filed in Cebu and Davao, the RTC in Las
Pinas City will exercise jurisdiction to the exclusion of Now, given the same facts that I gave earlier,
the RTC in Cebu and Davao City. suppose the petition filed in Davao City is a petition
for the allowance of the last will and testament of Mr.
But the question is, from what are RTCs in Cebu and Lopez. So, that the heir living in Davao is in
Davao being excluded from what are they being possession of the last will and testament of Mr.
excluded? Because the rule says to the exclusion of Lopez., but that petition was filed last. So, given that
________________________________
Page 33 of 75
modification, which petition now should prevail?
should it still be the petition filed in Las Pinas because So, let's discuss a situation where some of the heirs
it was filed first and the RTC in Las Pinas first took of the decedent, where they do not want to file a
cognizance of the petition? The answer is, the petition petition for settlement of estate. Judicial settlement of
filed in Davao City for the allowance of the will of Mr. estate is very expensive and it takes a long time. So,
Lopez will now prevail, because probate there's a good reason for heirs not to want to file a
proceedings shall always be given precedence petition for settlement of the estate. Now, what is their
over interstate settlement of estate. If Mr. Lopez option? What can they do? They don't have the
left a last will and testament, that should be given money to spend to pay a lawyer, especially if that
preference because it was wishes of the testator, Mr. lawyer graduated from Arellano because a lawyer
Lopez, as embodied in his last will and testament graduated from Arellano usually charges exorbitant
should prevail. It should be given preference even fees now, so they can't afford to pay a lawyer.
over the provisions the of law in the Civil Code on
succession. Their option is to settle the estate of the decedent
extra judicially. But of course, they can do that only if
Q: Now, when is a missing person presumed dead they could agree among themselves how to partition
for purposes of the filing of the petition for the the estate of the decedent. They should agree
settlement of his estate, or for the purpose of because they can’t extra judicially settle the estate if
succession, how long should he be missing so they don't agree. But there are conditions before the
that his death can be presumed, and that a heirs may extrajudicially settle the estate of the
petition for the settlement of his estate be filed? decedent. The first condition, is that the decedent left
no will, the decedent died intestate without leaving a
A: Under the Civil Code, for purposes of succession will, The second requisite is that the decedent left no
a person should have been missing for at least 10 debts and, the third requisite is that all the heirs must
years, before a petition for the settlement of his be of legal age or if there are minor or if there are heirs
estate, maybe filed, he will be presumed dead for who are minor/s, then those minor/s should be
purposes of the filing of a petition for the settlement of represented by their guardians or authorized
his estate, but if that person disappeared, when he representatives.
was 75 years old or above, then he will be presumed
dead after five years from his disappearance for Q: Why is it required? Why is it a requirement
purposes of the filing of the petition for the settlement before the heir could extrajudicially settle the
of his estate. If the person who disappeared, while on estate that the decedent left no will? A: That is
board, an airplane, which disappeared, nothing was required because if the decedent left a will then the
heard of the airplane anymore, when the person provisions of the last will and testament should
disappeared, he was on board that airplane, which govern in the distribution of the estate to the heirs not
disappeared, the bodies of the passengers were the agreement of the parties, but the provisions of the
never recovered, so he was missing then that person will. That's why when the decedent left a will, the heirs
will be presumed dead after four years, from the time could not agree, extra judicially settle the estate,
he boarded that plane, or when a person went to war, because what will govern the persons to whom the
he was a soldier, he went to war and from the time he estate shall be given would be the provisions of the
went to war, nothing was heard all about him, he just last will and testament. As I mentioned earlier, the
vanished from the face of the earth, then he will be wishes of the testator as embodied in the last will and
presumed dead after 4 years from the time he went to testament shall prevail even over the provisions of the
war. And in other similar instances, if a person Civil Code on succession. So, if the decedent left a
boarded a ship and that ship sank to the bottom of the will the heirs cannot extra judicially settle the estate.
sea the bodies of the passengers were never
recovered, including the person it will be presumed Q: Why is it required that the decedent left no
that after for purposes of succession after 4 years debts? Why can’t the heirs extra judicially settle
from the time he boarded that ship. the estate? A: The reason is, that the creditors of the
________________________________
Page 34 of 75
decedent can only recover the claims against the would be as if the decedent left no debts the heirs
decedent when there is a pending settlement of could now, extra judicially settle the estate of the
estate proceedings that's the only way that the decedent.
creditors can recover their claim against the
decedent, now against the estate if there is a pending Q: So, let's assume that all the requisites have
settlement of estate proceedings. So, if there are been satisfied, what should the heirs do, they
creditors, if the decedent left debts, then the heirs should still do some things to do effect the
could not extra judicially settle the estate, because extrajudicial settlement of their state?
the creditors will be prevented from recovering A: Under the rules, the agreement of the parties
declaims. should be in a public instrument, so the parties will
agree on how to partition the estate among
Between the creditors and the heirs, the creditors themselves. So, they will embody that in a written
have a superior right in the estate over the heirs, agreement.
because what happens in the judicial settlement of
estate is, that before the court will order distribution of But the rules say the agreement of the heirs should
the estate to the heirs, all the creditors must first be be in a public instrument. What do the heirs do when
paid. So, when nothing is left after the creditors have they extra judicially settle the estate? they execute a
been paid, then the heirs will be left with an empty deed of extra judicial settlement of estate. That's the
bag, they will receive nothing, because the creditor contract, the agreement, deed of extrajudicial
should be paid first before the heirs could receive settlement of estate They sign it, all the heirs sign it,
anything. Okay. So that's why the decedent must if there are minors, their authorized representatives
have left no debts. will sign it on their behalf. But that would be a private
instrument, that would not be a public instrument. So
Q: The 3rd requirement is, that all the heirs must how do they satisfy that requirement, that the
be of legal age or if there are minors, they should agreement must be in a public instrument? They
be represented by their authorized should go to a notary public and acknowledge the
representative, why is that required for extra deed of extra judicial settlement before the notary
judicial settlement of estate? A: The reason is public or have the deed of extrajudicial settlement of
simple, when the heirs decide to extra judicially estate notarized by acknowledgement. That's what I
settled the estate, they are in effect entering into a meant by acknowledge before a notary public, once a
contract. That deed of extrajudicial settlement of private document is notarized by acknowledgement,
estate which the heirs signed is actually a contract. or once the parties to a private document,
So, you know, the requirement before a person can acknowledge the document before a notary public,
enter into a contract, he must be of legal age, so that that private document becomes a public instrument or
minors by themselves cannot enter into a contract document. Why? Because the notary public is
unless they are represented by their guardians, required to submit a copy of that notarized document
whether legal or judicial guardians. to the office of the clerk of court. We commissioned
him as a notary public, they are required to submit all
So, those are the requisites. the documents acknowledged before them to the
office of the Clerk of Court. The Office of Clerk of
Q: Suppose the decedent died intestate, all the Court is a public office and all these documents
heirs are of legal age but the decedent left debts, acknowledged before notaries public are kept there in
may the heirs still extra judicially settle the estate the Office of Clerk of Court. So, anything that is kept
of the decedent. Is there a way for the heirs to still in a public office and is available to any person who
extra judicially settle the estate when the may be interested, is a public document. So, it
decedent left debts? becomes a public document.
A: Yes, they should first pay all the debts of the
decedent. And so, after paying all the debts, then the But there's another requirement before they can
heirs could now extra judicially settle the estate it consummate the extrajudicial settlement of estate,
________________________________
Page 35 of 75
they should publish the fact of extrajudicial settlement estate among themselves, you know, human nature
of estate, in short, the heirs should cost the being what it is, each one of them would want the
publication of the deed of extrajudicial settlement of lion's share of the estate, the best part, the best
estate. location, the location along the road. So, everyone
wants that. I'll tell them, okay, since you cannot
Q: How many times? in what publication? A: Once agree, and you don't want to file a petition for
a week for three consecutive weeks in a newspaper settlement, which is expensive and it takes a long
of general circulation in the province. Then, later on time let's just file an ordinary action for partition, under
the deed of extra judicial settlement of estate that's Rule 69, So that's not efficient settlement. That's just
been published once a week for three consecutive an ordinary action for partition, there will be no
weeks, they should request the publisher or the editor appointment of an administrator, which is expensive.
in chief of that newspaper to issue a certification or an So that solves the problem, that still, although a
affidavit that such deed of extrajudicial settlement has petition for partition is filed in court, the settlement of
been published three times, once a week for three the estate is still extrajudicial settlement. So that's
consecutive weeks. another way of effecting extra judicial settlement, the
first is by a deed of extrajudicial settlement if the heirs
Is that all? Not yet, if the estate of the decedent could agree, but if they could not agree, they could
includes personal properties, then the heirs are just file an ordinary action for partition, and let the
required to post a bond in an amount equivalent to the court partition the estate for them.
value of the personal properties. Only if there are
personal properties included in their estate, most of
the time, there are no personal properties class, they Suppose there's only one heir and the decedent left
usually when there is cash, left by the decedent, there several parcels of land, all in the name of the
are jewelries they will just distribute it among decedent. Of course, once that the title to all those
themselves, they will not include it in the estate. But if lands left by the decedent should be transferred to his
there are personal properties included in the estate, name, but he can’t just do that. He may be in
they have to give a bond in an amount equivalent to possession of the lands, but the titles of those lands
the value of the personal properties. cannot be transferred to his name, because it will be
the register of deeds, which will do that and the
Is there any more requirement? Yes, the last register of deeds will not just transfer the name of a
requirement would be since they are inheriting title from the decedent to the lone heir. So, what
property from the decedent, they should pay estate should that lone heir do? That heir should execute
tax to the BIR, bureau of internal revenue. Then, after an affidavit – an affidavit of self- adjudication, that
they paid the estate tax, the BIR will issue, what we sole heir shall execute an ordinary affidavit to be
call a certificate authorizing registration or CAR. So notarized by jurat, and in that affidavit he will just state
after that, the heirs will now attach to the deed of extra that the decedent died leaving this properties, that he
judicial settlement of estate, the certification of the is the only heir and so I am adjudicating to myself, the
publisher that was published three times and if they entire estate of the decedent, that's what he will
posted a bond, the bond and then the certificate stated in his affidavit of self-adjudication, it's like a
authorizing registration, then they are now ready to selfie, you do something to yourself, self-adjudication,
submit those documents to the register of deeds and have it notarized just not acknowledgement, but by
that will consummate the extra judicial settlement of jurat, and then he has to comply with the other
the estate. requirements, if the estate includes personal
properties, he will also have to post a bond; to cost
But there's maybe a problem, so, let us say, all the the publication of the affidavit; he has to pay estate
heirs agreed that they don't want to file a petition for tax and then submit the documents to the register of
settlement of estate. They can't afford it. They don't deeds and that ends the extra judicial settlement of
have the money to pay the lawyer. But the problem is estate if there is only one heir.
that they could not agree on how to partition the
________________________________
Page 36 of 75
So those are the different ways of extrajudicial We will discuss these two matters.
settlement of estate.
Let's start with the first matter. What does
We will no longer discuss summary settlement of testamentary capacity mean? Does it simply
estate because somebody's settlement of estate will mean that the testator was of sound mind at the
apply only when the gross value of the state does not time he executed a will, so if it can be proved that
exceed 10,000 pesos, what do you do with an estate? the testator was of sound mind at the time the
That is not more than 10,000 pesos? That's not even executed the will, does it mean that he had
one pot of soil, that is not even one square meter of testamentary capacity? No, even if it can be shown
land in in the province. that the testator is of sound mind at the time, he
executed the will, it does not necessarily mean that
he had testamentary capacity. Why? Because
Let's now discuss production and allowance of will. testamentary capacity requires more than being of
sound mind. Even if a person is of sound mind, he
The rule says, no last will and testament shall pass may not have testamentary capacity. But a person
property whether real property or personal property cannot have testamentary capacity unless he is of
from the testator to his heirs unless it is proved and sound mind, but it's not enough that a person be a
allowed in a competent court. So, before a last will sound mind so that we can say he has testamentary
and testament can pass or transfer property from the capacity.
testator to the heirs, that last will and testament must
be first proved and then allowed in a competent court. Q: So, when do we say that a person has
testamentary capacity?
Who will prove the last will and testament? Of course, A: The testator must understand several things
it's the petitioner. Who will allow the last will and before we can say he has testamentary capacity, of
testament of course? The court, but the petitioner course, he needs to be of sound mind to understand
must first prove the last will and testament. those things. Let's assume that now that the testator
is of sound mind. So, but he must understand three
Q: What should the petitioner prove, so that the things before we can say that he has testamentary
court the proper court, well, it may be a Regional capacity. What are those? First, that the testator
Trial Court or a municipal trial court, depending understood the significance of executing a last will
on the gross value of the estate will allow the will and testament, he should know what he is doing. So,
or approve the will, what should be proved? the testator when he executes the last will and
testament should understand that by executing that
A: What should be proved is the extrinsic validity and last will and testament, he is transferring his
not the intrinsic validity of the will. properties to his heirs or to some persons of his
choice. That's the first thing that he should
The intrinsic validity of the will pertains to the validity understand. But he should also understand which is
of the contents of the will, but the extrinsic validity of more important that he's transferring his properties to
the will pertains to two matters. his heirs or to some persons of his choice, that
transfer of property will take effect not during his
Q: What are those two matters to which extrinsic lifetime, but after his death. So that's what is
validity pertain? important, because a person may transfer property
during his lifetime, but the transfer of property will take
A: First, the testator, must have testamentary effect during his lifetime let’s say a person executes a
capacity at the time he executed the last will and deed of absolute sale is the seller. So, he knows that
testament. The second, is that the last will and he is transferring his property to the buyer that will
testament was executed in conformity with the formal take effect immediately upon the signing of the
requirements prescribed by law. absolute sale during his life. But when at the testator
executes a deed a last will and testament, he should
________________________________
Page 37 of 75
understand that he is transferring his properties to his law for a notarial will is, that when each of them at
heirs and that will take effect after his death that's least three subscribing witnesses must sign the last
what is meant by the testator understanding the will and testament, so the testator will have to sign all
significance of the execution of a last will and the pages of the last will and testament. And finally,
testament. when the last will and testament is acknowledged
before a notary public, the notary public will also sign
The second, the testator should know the nature and the last will and testament in all the pages, so one of
extent of his bounty. What does that mean? that the the important formality prescribed by law for notarial
state should know the nature and extent of his will is that when each of them the three subscribing
bounty? What's that bounty? That simply means, that witnesses, the testator and the notary public, when
the testator should know exactly what are his each of them signed the will, in all the pages, all the
properties, what are the properties that he is others must be present and they should be able to
transferring to his heirs he should know those observe the signing by one of them. So, when each
properties. That is what is meant by knowing the of them signs, the last will and testament and all the
nature and extent of his bounty. others must be present, and must be able to observe
the signing, that's a very important formality
The third is that the testator should know exactly the prescribed by law for a notarial will, so that should be
persons to whom he is transferring his properties. proved.
And if the testator understands all these three, then In one case, during the trial, it was shown that when
and it takes a sound mind to understand all this , then one of the subscribing witnesses sign, the last will and
we can say he has testamentary capacity. That's the testament, it just so happened that one of the
first matter to which extrinsic validity of the will witnesses stepped out of the room just outside the
pertains, which must be proved in court. So, in courts, room and went to the bathroom, only for a moment.
petitioner must prove all those three things to prove But it just so happened that it was shown during the
that the testator has testamentary capacity at the time trial, that when one of the witnesses sign the will, the
he executed the will. other witness was outside the room where the
witness was signing the will. So, do you know what
Let us go now on the second matter, which is that the happened? Do you know what the Supreme Court
last will and testament was executed in accordance said? That fact invalidates the last will and testament.
with the formalities prescribed by law. What are these So, is it as if if the decedent died intestate because
formalities prescribed by law? It depends what kind of the last will and testament was invalidated because of
last will and testament was executed by the testator, that alone, so, it’s very strict, the formalities
was it a notarial will? then there will be formalities prescribed for notarial will is very stringent, all of them
prescribed by law for a notarial will. Was it a must be strictly complied with. So that's what the
holographic will? Then there are different formalities petitioner must do to prove that the last will and
prescribed by law for holographic will, so it depends. testament was executed that in accordance with the
Let’s give some example of formalities prescribed by formalities prescribed by law.
law for a notarial will, one formality required by law for
a notarial will is that there must be at least three What about the last will and testament is a
subscribing witnesses. Why do we call these holographic will, what are the formalities prescribed
subscribing witnesses? because they also required to by law? There is only one formality prescribed by law
sign the last will and testament. That notarial will for a holographic will. The only formality prescribed by
should be acknowledge before a notary public by at law is that the holographic will must be must be dated,
least three subscribing witnesses and the testator. written and signed by the hand of the testator, take
After the witnesses and the testator have signed the note, by the hand of testator. If that can be proven,
last will and testament, they will acknowledge it then that means the holographic will was executed in
before a notary public and will also sign the last will accordance with the formalities prescribed by law,
and testament. Another requirement prescribed by that should be proved. Suppose that the testator was
________________________________
Page 38 of 75
born without arms class, there are persons who are
born without arms now. So early in life, they learn to So, if that the testator named somebody or
write with their foot. And so that person who was born designated somebody in his last will and testament to
without arms and learn to write and even paint with administer his estate after its death, that person is the
his foot executive, a holographic will with his foot he executor. So that person named by testator in his last
dated wrote and sign the holographic will not with the will and testament may file the petition. In fact, he's
hand, but with his foot, will that satisfy before morality the best person to file the petition for the allowance of
prescribed by law or a holographic will? Because it's the will because most probably, you will be the one
very clear under the rules, the holographic wheel who is in possession of the last will and testament.
must be dated, written and signed by the hand of the Usually the testator will designate a lawyer to be an
testator. That phrase by the hand of the testator executor because the executor or the lawyer, an
should not be understood literally, just for emphasis, executor, who is a lawyer would know what he will do
that it should be the testator who dated, wrote and after the death of the testator.
signed the last will and that is what this meant. But for
emphasis, that's why it's by the hand it could be the Q: Why can't an administrator filed a petition for
foot as long as it is the foot of the testator which dated, allowance?
wrote and signed the holographic will A: Because an administrator does not exist yet.
Before the filing of the petition, an administrator is
Those two matters are what is referred to us extrinsic appointed by the court during the pendency of the
validity of the will, all of them must be proved by the petition for allowance of the will. So, how can the
petitioner so that the last will and testament will be administrator who does not exist yet before the filing
allowed by the court. What about the intrinsic validity? of the petition filed the petition? He cannot because
before the court will even look into the intrinsic validity he will be appointed later on, after the petition for the
of the will, the court should first allow it because if the allowance of the will has been filed and in the course
extrinsic validity was not prove and it disallow the will, of the proceedings of that, then an administrator may
the court would not even look into the intrinsic validity be appointed.
of the will. So, the court must first allow the will after
the extrinsic validity is proved by the petitioner before
it will look into the intrinsic validity of the will. Q: Who else may file a petition for the allowance
of the will?
Who may file the petition for the allowance of a A: The devisee.
will? By the way, the jurisdiction would still depend
on the gross value of the estate, even if the petition is Q: Who is the devisee?
for the allowance of a last will and testament, the A: A devisee is a person to whom real property is
jurisdiction will still depend on the gross value of the given by the testator in his last will and testament
estate, the same as in petition for settlement of
intestate, without a will. Q: Who is a legatee?
A: A legatee is a person to whom personal property
Q: Who may file a petition for the allowance of a is given by the testator in his last will and testament
last will and testament?
A: First is the executor; second, the devisee or the Q: Who are the persons who may have an interest
legatee or any person interested in the estate or in the estate aside from the executor, devisee or
during his lifetime the testator himself may petition the the legatee, and therefore may file the petition for
court for the allowance of his last will and testament. the allowance of a will?
Q: Who is an executor? A: As I said earlier, the rights of the creditors over the
A: An executor is a person named by the testator estate is even superior than the rights of the heirs
himself in his last will and testament to administer his because all creditors must first be paid before
estate after his death.
________________________________
Page 39 of 75
distribution will take place. So, a creditor may file the petition and ordering the petitioner to cause the
petition. publication of the petition once a week for three for
three successive weeks, in a newspaper of general
Why would they creditor file a petition? Suppose circulation in the province where the court sits.
nobody files the petition. If there is no executor named
in the will, the e devisee, the legatee, nobody takes
the initiative of filing the petition for the allowance of So, the court will issue an order fixing the date of the
the will. Why would a creditor spend money to file the hearing of the petition and directing the petitioner to
petition for the allowance of the will? The reason for cost the publication of the petition once a week for
that is simple last, because that's the only way he can three successive weeks in a newspaper of general
recover his claim against the estate. If there is a circulation in the province where the court stands,
pending petition for the allowance of a will, that's the that's better know, where the court stands now, the
reason why a creditor may file a petition, he has an court is standing.
interest in the estate because that is only way, he can
recover his claim is if there is a pending petition for Now what is required aside from the publication?
the allowance of the will. by the way, the publication is a jurisdictional
requirement. It's a jurisdictional requirement. The
he testator, as we mentioned earlier, during his court may have jurisdiction over the subject matter of
lifetime, not after, during his lifetime, may file the the case based on the gross value of the state, the
petition for the allowance of his will. That's the best court may have jurisdiction over the subject matter of
way of effecting the allowance. Testator himself the case. But if there is no publication of the petition,
during his lifetime, petition the court for the allowance in accordance with the rule, the court cannot exercise
of a will in fact, every time I have a client who consults its jurisdiction over the case.
what to do, if he got lots of property, and he does not
want to leave these properties to his heirs and later The court may have jurisdiction over the subject
on it turn out that they could not agree on how to matter of the case but sometimes the court cannot
divide or distribute the state among themselves. So, exercise its jurisdiction. But application of the petition
if I'm consulted, I advise my client, you execute a plus is a jurisdictional requirement. Without the
holographic we'll because it's simple. All you have to publication the court cannot exercise jurisdiction and
do is to put a date, write there your properties, if the court exercised jurisdiction, all the proceedings,
indicate to whom you are giving your properties, and including the judgment are null and void. So,
then sign it. That's all. You don't need a lawyer to do jurisdiction is a jurisdictional requirement. But aside
that, although some guidance may be needed by a from publication class, it is also required that all the
lawyer. So, and then I advise my client, you have the all the person’s name in the petition, the devisees,
second that the holographic will, don't wait until you the executor, the legatee, all the person's name in
die, you file a petition for the allowance of your will the petition must also be given notice of the
while you're still alive, because it's so easy to prove petition, either by personal service or by
the extrinsic validity of the will, if the testator on registered mail. Is this requirement, also a
himself. He only has to say is Yes, Your Honor, I jurisdictional requirement like publication? Under the
signed this, the court itself can observe the testator old jurisprudence, this requirement of notice to the
when he testifies. So, it's easy to prove the will if it is person's name in the petition, either by personnel
the testator himself who is testifying in court. service or registered mail is just a procedural
convenience, it is not a jurisdictional requirement.
Q: What should the court do upon the filing of a Under the present jurisprudence, this
petition for allowance of the will? requirement is also jurisdictional. Aside from
A: Upon the filing of the petition of the allowance of a publication, the persons named in the petition must
last will and testament and after determining that the also be given notice of the petition either by personal
petition is sufficient in form and substance the court service or by registered mail.
will issue an order fixing the date of the hearing of the
________________________________
Page 40 of 75
But if the petitioner is testator himself meaning during petitioner to present at least one witness who knows
the lifetime, he filed the petition, publication is not the handwriting and signature of the testator and can
required. So, if it was the testator himself, who filed swear that the last will and testament is in the
the petition, and is the petitioner, publication is not handwriting of that of the testator. So, if the last will
required. What about notice to the person's name and testament is a holographic will, but it is
in the petition, either by personal service or by uncontested, it is sufficient for the petitioner to
registered mail? it is not also required, what is present at least one witness who will testify that he
required is only notice to the compulsory heirs of the knew very well, the handwriting and signature of the
testator, only the compulsory heirs of the testator testator. Perhaps she can testify, Your Honor, I've
must be given notice, either by personnel service, or been a personal secretary of the testator during the
by registered mail. time that he executed the will and before the
execution of the will, I'd been the secretary of the
Publication is a jurisdictional requirement, notice testator for 10 years already and during that time I
to the person's named in the petition is also a was the secretary and I saw documents containing
jurisdictional requirement. his handwriting containing his signature so I'm so
familiar with the handwriting and signature of the
Q: How is the last will and testament prove? What testator.
evidence is required to prove a last will and
testament? So, that witness may have not seen that the testator
executes the will, usually there would be no eye
A: It depends, if the will is a notarial will, and there is witnesses in the execution of a holographic will
no oppositor after the filing of the petition, there's because usually it is executed by person in the
publication notice the person's name in the petition. If privacy of his room, he is alone and nobody is there
there is no person who files an opposition to the to witness the execution. So, that witness will testify
petition, then the petition is uncontested. So what that he is familiar with the handwriting and signature
evidence is required for the petitioner to prove that the of the testator and when he is shown a copy of the
extrinsic validity of the will? if it is a notarial will, if the holographic will, and by examining the handwriting
petition is uncontested, it is sufficient that one of the and signature in the holographic will, then he will
subscribing witnesses testify as to the extrinsic testify, since I'm so familiar with the handwriting and
validity of the will. So. that that that subscribing signature of the testator in my opinion, take note,
witness just one is sufficient, will testify that when he opinion, the handwriting and signature in this
signed the last will and testament in the presence of holographic will are those of us that the testator that's
the other witnesses, the presence of the notary how he will testify because he did not see the
public, in the presence of the testator, that he execution of the holographic, he cannot say I was
observed, that all the formalities prescribed by law for there I saw the executor sign or write the holographic
a notarial. And that he also observed that testator will what he will testify on is his opinion. Remember
when he signed at the time that he signed the last will class when you discuss the exceptions to the opinion
and testament was it appears that he had rule, opinion as evidence as a rule, the opinion of a
testamentary capacity, he was of sound mind. So that witness is not admissible except when except the
that lone witness, or at least one subscribing witness opinion of an expert or the opinion of an ordinary
will testify on that and that is sufficient to prove an witness when proper basis is given on the handwriting
uncontested notarial will. Suppose it is contested, of a person. Of course, a handwriting is always of a
then all the subscribing witnesses must testify, person with which he has sufficient familiarity. So
including the notary public before whom the will was that's an exception to the rule on opinion as evidence.
acknowledge. If there are no subscribing witnesses, So, the ordinary witness, who is familiar, who has who
the petitioner may present an expert witness. is sufficiently familiar with the handwriting and
signature of the testator may not testify on his opinion,
Suppose the will is a holographic wheel. If the can testify and on his opinion and that will be
holographic will is uncontested, it is sufficient for the sufficient.
________________________________
Page 41 of 75
from being appointed as administrator or executor; a
Suppose the holographic will is contested there is an person who is not a resident of the Philippines is
oppositor who filed a written opposition against the disqualified from being appointed an executor or
petition. What evidence to the petitioner present to administrator who else may not be appointed as
prove the holographic will? He will have to present at executor or administrator; third, a person who, in the
least three witnesses who will testify that they are opinion of the court is unfit to serve the duties of trust
sufficiently familiar with the handwriting and signature by reason of drunkenness, improvidence lack of in
of the testator and that in their opinion, the lack of integrity and knowledge or by reason of his
holographic will is dated, written and signed by the conviction for an offense involving moral turpitude
testator himself. If there are no witnesses who can
testify, who are sufficiently familiar with the So, if the testator named a person in his last will and
handwriting and signature of the testator, the testament us to be the executor, that person named
petitioner may present a handwriting expert. as executor class is still need to be appointed by the
court although he is named by the testator himself in
How will a handwriting expert testify? How can the the last will and testament he needs to be appointed
handwriting expert testify that the holographic will is by the court, does not mean that it is named by the
dated, written and signed by the hand of the testator? state or he will be the executor he will have to be
So, first what the petitioner will do is to produce at appointed by the court.
least five sample documents containing handwritings
and signatures of that the testator and he will present So, suppose a person is named as executor by the
it in court and show it to the oppositor and if the testator in his last will and testament and somebody
oppositor admit that those documents contain the proposed the appointment of that person as executor
genuine handwriting and signatures of the testator. on the ground on the ground is a minority, he is not a
And then the expert witness will now compare the resident of the Philippines or in the opinion of the
handwriting in the holographic will and the court he is unfit to serve the duties of an executor or
handwriting and signature appearing in the sample administrator then the court may not appoint him now,
documents. Then, the expert will then testify. “Your so that the appointment of that executor named in the
Honor. I've been handwriting expert for so many last will and testament maybe opposed. In the
years and testified in so many cases. So, after appointment of an administrator, by the way, when
comparing the signature and handwriting in the five should the court appoint an administrator? If the
sample documents and the handwriting and signature decedent died intestate, then there could be no
in this holographic will Your Honor, in my expert executor name so the court will have to appoint an
opinion behind the writing in the holographic will and administrator. If the decedent left a will, but did not
the signature in the hand in the holographic will and name a person as executor in his will, then the court
the handwriting and signatures appearing in the will have to appoint an administrator. If the decedent
sample documents or made by one and the same left a will and named an executor, but the executor is
person.” That’s how a handwriting expert will testify. disqualified or incompetent or if he refuses the
appointment then the court has to appoint an
As I say mentioned earlier when a petition for administrator. So, in those instances, the court will
settlement of estate or allowance of a last will and have to be to appoint an administrator.
testament is filed the court will either appoint an
administrator or if somebody is named as an executor In the appointment of an administrator there is an
in a last will and testament, then the court will have to order of preference. What is that order of
appoint an executor. preference?
Q: Who are disqualified or who may not be Q: On what other grounds may the appointment
appointed as executors or administrators? of the administrator be opposed? On the ground
A: There are certain disqualifications in the appoint that the oppositor has the better right to be appointed
as executor or administrator. Minors are disqualified as administrator under the order of preference.
________________________________
Page 42 of 75
Suppose it is a creditor who seeks appointment as implied, whether due, not due or contingent shall be
administrator, a surviving spouse may oppose, the filed in the probate court in the settlement
appointment of that creditor as administrator on the proceedings within the period prescribed by the court.
ground that the surviving spouse, the oppositor has a Otherwise, they will be lost forever.
better right to be appointed under the order of
preference. So, on those two grounds, the What else? what other money claims may be filed
appointment of an administrator or maybe opposed. in the probate court in the settlement
So, after the court has issued letters testamentary, proceeding? Expenses incurred due to the last
which means the court has appointed an executor or illness of the decedent or expenses incurred for the
has issued letters of administration, which means the funeral of the decedent, so, even in death, the
court has appointed an administrator, then it is the decedent will pay for his for the expenses of his
duty of the court to issue an order, giving notice to all funeral because the expenses for the funeral of the
the creditors who have money claims against the decedent will be charged against his estate his own
estate to file their claims with the probate court. properties. It will be charged against the estate as
Probate court means the court before which the money claims perhaps, the hospital where the
settlement proceeding is pending within a period of decedent died of his last illness then the hospital now
not less than two years. may file a claim for the expenses incurred in the
hospital for the last illness of the decedent, those
What happens if a creditor was a money claim and money claims may be filed with the probate court in
that notice, by the way, notice to creditors should be the settlement proceedings. What else? Any
published to give notice to the creditors, so if a judgment for money, so, if there is already a judgment
creditor fails to file his claim within the period for money against the decedent, then that judgment
prescribed by the court, then his claim is deemed for money, maybe executed, but it should be filed with
waived, it is lost forever. Unless the estate through the probate court in the settlement proceedings as
the administrator or executor files a case against him money claim, so those money claims shall be filed
then he may still set up as a counterclaim his claim with the probate court in the settlement proceedings
against the estate that he failed to file with the probate within the period prescribed by the court, otherwise,
court in the settlement proceedings within the period they will be deemed waived they could no longer be
prescribed by the court. collected by the creditors. As I said earlier, if a
creditor has a claim other than a money claim, his
He may still set that up as counterclaim against the claim may be to recover property from the estate,
estate if the estate files a claim against him, that he he cannot file it in the probate court in the
may set it up as a counterclaim. Otherwise, that claim settlement proceedings, he has to file a separate
is lost forever. action against the estate represented by either
the executor or by the administrator. Actually, the
What money claims may be filed with the probate action the case against the estate shall be filed
court in the settlement proceedings? Because against the administrator or executor as a
only those claims may be filed with the probate court representative of the estate so the administrator or
in the settlement proceedings, other creditors whose executor will be the defendant for other claims other
claim whose claims are not money claims, they than money claims.
should file a separate action not file a claim with the
probate court in the settle settlement proceedings. Q: What will the court do if money claims have
Only money claims class may be filed with the been filed? What will the probate court do?
probate court in the settlement for proceedings. But A: The court will hear each of those money claims
what are these money claims that should be filed and decide, issue on order either approving the claim
with the probate court in the settlement or denying it but the court will hear each claim that is
proceedings within the period prescribed by the filed with the probate court, the administrator or
court otherwise, it's lost forever? First, claims for executor will be given the chance to oppose the
money arising from contract whether expressed or money claim. The aggrieved party may appeal that
________________________________
Page 43 of 75
order of the court denying or approving a claim. So, that's how the administrator will pay be the claims
this is one instance when multiple appeals may be against the estate. First, the administrator must
filed in one case, while the case is pending, in the observe the preference of credits. So, the
proper court, orders of the court denying or approving administrator will pay first all the claims of the
a claim may already be appealed. So, what will be the government against the estate in terms of taxes,
mode of appeal? If multiple appeals are allowed in whatever dues or whatever, so, let's assume that all
one case? What is the proper mode of appeal? those claims in the first level in the preference of
Record on appeal. credit have been paid, all the creditors belonging to
the first level have been paid. If there are still
After the court has to resolve all the money claims, properties left then the administrator will pay those
then what's the next step for the court? Will it be claims belonging to the second level, if all of them
distribution of the properties to the heirs? NO. By the have been paid, then the administrator will go to the
way, if one money claim is resolved ahead of the third level. So, it may happen that the properties of
others, that money claim will not yet be paid, it will be the estate are not enough to pay the creditors
set aside. After all the money claims against the belonging or the claims belonging to one level. So,
estate have been resolved by the court, then the court there are still properties, but they are not enough to
will order the administrator to pay all those money pay all the claims in one level, the higher levels have
claims. Most probably the estate will have no cash, all been paid already in full, but in one level, it may
they will have real properties. How will the happen that properties of the estate may not be
administrator pay those money claims, they are all enough to pay all the claims. So, what should the
money claims? So, the administrator has to sell the administrator do? then the rules provide that the
properties of the estate. First the personal properties administrator should pay all the claims pro rata to the
which are not assigned to anybody to a legatee in a amount of the claims, all of them will be paid but not
last will and testament. If they are not enough to pay in full but only prorated to their claims. If not, all claims
the creditors then the administrator will have to sell belonging in one level can be paid, they will be paid
real properties which are not assigned to a devisee pro rata.
and if they are not yet enough, the proceeds are not
enough to pay all the money claims, then the So, if there are properties left after all the claims have
administrator will have to sell personal properties that been paid, after the expenses of the settlement have
are assigned to legatees. Now, if yet they are not been paid, the compensation for the administrator
enough, then the administrator will have to sell real have been paid, if there are properties left then the
properties that are assigned to devisees. If all the court will issue an order of distribution then whatever
properties of the state have been sold to pay the properties are left will be distributed to the heirs if
creditors then nothing is left. there are still properties left.
Q: But suppose the properties of the estate are If the debts that the decedent left are bigger than the
not enough to pay all the money claims against properties, there's nothing actually for the heirs to
the estate. How will the administrator or executor inherit. The heirs will inherit if there are properties left
pay the creditors if the properties of the estate are by the decedent, but if the decedent left debts and the
not enough to pay all the creditors, some properties that the decedent left is not even enough
creditors may be paid, but not all creditors? to pay his debts, then in effect, the decedent did not
leave any properties for his heirs.
A: First, the order of the preference of credit in the
Civil Code will have to be observed. There's a
preference of credit, some claims are preferred over CASES IN SETTLEMENT PROCEEDINGS
others. Now, there is a preference of credit in the Civil
Code, I think the first in the preference of credit are in the case of Edgar San Luis vs. Felicidad San
taxes and claims, debts owing to the government. So, Luis, the Supreme Court made a distinction between
residence which is synonymous with domicile and
they are the first so all of them must be paid first. So
________________________________
Page 44 of 75
residents referring to the physical personal or actual the administrator or successor, after being appointed,
residence of a person. makes an inventory of all the properties of the estate.
Now, sometimes it may happen that a property which
Okay. So, for purposes of election cases, residence was included in the inventory of the properties of the
is synonymous with domicile. For purposes of estate of the decedent is the subject of a claim by a
election cases, residence, if that word is used is third party. So a third party is claiming ownership over
residence, that's synonymous with domicile, what is a property, which is included in the inventory of
domicile? Domicile is the legal, fixed, permanent properties of the estate. Now, the question is made
residence to which when a person is absent, he the probate court now resolved the issue of
intends to return. He has the intention of returning, ownership, which party? Should that property be
okay let me repeat. So residence, which is included in the inventory of the properties of the
synonymous with domicile as used in election cases, estate because it belonged to the dissident? Or
refers to the legal, fixed, permanent residence of a should the court decide that property belongs to the
person to which when he is absent, he has the third party claimant, according to this case of Agtarap
intention of returning. Okay did you get it, class? vs. Agtarap, the probate court has no power or has
That's domicile or residence as understood in election no jurisdiction to resolve the issue of ownership as a
cases. Okay, what about residence for purposes of probate court. As a probate court, the court has no
determining venue in settlement proceedings, what is power or jurisdiction to resolve the issue of
that residence? How do we understand the word ownership.
residence? Residence for purposes of determining
venue is the personal, physical or actual residence of Now, the court may resolve the issue of ownership
a person. It is the personal, physical and actual but only for purposes of determining whether to
residence of a person at any one time. So, that's how include the subject property in the inventory or to
you should understand residence for purposes of exclude it from the inventory. The resolution of the
determining venue. That's how you should probate court, in respect to the issue of ownership is
understand residence for purposes of determining not conclusive. It is provisional, only to determine
venue in settlement of estate proceedings which is whether to include the property in the inventory or to
different from residents which is synonymous with exclude it. But if the resolution of the probate court is
domicile, which is used in election cases which is the provisional, it's not conclusive, the parties may still
legal, fix and permanent residence to which when a resolve the issue of ownership in a separate action,
person is absent, he has the intention of returning. not in the settlement proceedings before the probate
Okay. Okay, so that was the doctrine in the case of court, because the probate court has no jurisdiction
Edgar San Luis vs. Felicidad San Luis. or power to resolve the issue of ownership, although
it may resolve the issue of ownership, but only to
Now, let's go to the case of Agtarap vs. Agtarap. determine whether the property should be included in
Now, in this case of Agtarap vs. Agtarap, the the inventory or not. But such resolution of the
Supreme Court ruled that the probate court meaning probate court is only provisional, not conclusive.
the court before which a settlement of estate Okay. Now, there is an exception to that rule. The
proceeding is pending, whether testate or intestate probate court may resolve the issue of ownership, if
has no jurisdiction to resolve the issue of ownership. all the parties involved are heirs. Let us say, the third
Let me repeat. So according to the Supreme Court in party claimant is also one of the heirs, but that he is
the case of Agtarap versus Agtarap the probate court, claiming that he is the sole owner of the property and
meaning the court before which a settlement therefore, that property should no longer be included
proceeding is pending, whether testate or intestate in the inventory. So the claimant is also an heir. So all
has no jurisdiction has no power to resolve the issue the parties involved are heirs. And if all the parties
of ownership. Okay, let us discuss that. Suppose in who are heirs agreed to submit to the probate court,
the course of the settlement proceedings, a third party the resolution of the issue of ownership and the rights
claims ownership of a property that is included in the of third parties will not be prejudiced, then the probate
inventory of properties of the estate. You know that court now may resolve conclusively the issue of
________________________________
Page 45 of 75
ownership. Okay, so that is an exception to the wife of the decedent is really the legal wife of the
general rule. The general rule is that the probate court decision. Okay. You know, sometimes when a man
has no power to resolve the issue or ownership. But dies, there's so many women claiming to be the legal
if all the parties involved are heirs, meaning even the wife of the man, especially if the man is rich. So when
claimant is an heir, but he is claiming sole ownership he dies, there's so many women claiming, “I’m the
of the property, it does not want that the property be legal wife of that man so I'm entitled to a share -- a
included in the inventory because he's claiming that big share in his estate, I'm entitled to one half of the
he is the owner of that property. And since all the conjugal properties.” Okay.
parties are heirs, including the claimant, they may
agree to submit the issue of ownership to the probate Now, in the case of Suntay III vs. Cojuangco-
court and if the rights of third parties will not be Suntay, the Supreme Court discussed the basis for
prejudiced, then the probate court may resolve the the appointment of an administrator. What should the
issue of ownership now, conclusively. That's the court consider in appointing an administrator?
exception to the general rule. Okay. Do you Several persons may want to be appointed to be an
understand class? Okay. Do you understand? So that administrator -- several persons Now, what factor
was the doctrine laid down in the case of Agtarap vs. should the court consider? Or what factors should the
Agtarap. court consider in deciding which of several persons to
appoint as administrator? According to the Supreme
Now, what is now the extent of the power of the Court, it should be the interest, the extent of the
probate court? What issues may a probate court interest of the person in the estate, the bigger the
resolve? It cannot resolve the issue of ownership. So, interest of the person in the estate, the better right, he
what are the issues that as a probate court may now has to be appointed as administrator. So it is the
resolve the probate court has the power and “interest.” You remember when we discuss the order
jurisdiction to resolve or to determine the status of of preference in the appointment of an administrator?
each of the heirs and whether the property in the Who is, well, who belongs to the first level in the order
inventory is conjugal or exclusive. So, the probate of preference? Who are the persons who belong to
court as a probate court, has the jurisdiction to resolve the first level of preference in the appointment of
the status of its heir. Is a person claiming to be an heir administrator? The surviving spouse - so it's the
be illegitimate or illegitimate child of the decedent? So surviving spouse. Why is it the surviving spouse?
the court, the probate court, has the power to resolve Why does he or she belong to the first level in the
that issue. Is he really an illegitimate child of the order of preference? It's because the surviving
decedent so that if so, then he is entitled to a share in spouse is not only an heir of the deceased spouse,
the estate. So the probate court has the power to he or she also owns half of the conjugal property of
resolve that issue. the spouses which will be liquidated in the settlement
proceedings of the deceased spouse. So remember?
Now. It may also, the issue may also arise, whether Where the common properties of the spouses are to
or not a particular property is the sole property of the be settled in the settlement proceedings of the
decedent or it is a conjugal property of the decedent deceased spouse? So that's why the surviving
and his or her spouse. That issue may be resolved by spouse is number one in the list. Now, who is a next
the probate court. Another example of when the of kin, we recall, I mentioned that, who is a next of kin
probate court may resolve the status of an heir -- A in the context of the order of preference in the
woman who claims to be the legal wife of the appointment of an administrator? who is a next of kin,
decedent, if there is opposition from other heirs, that does next of kin refer to all the relatives of the
would now be an issue. Now, the question is made decedent, the answer is no. Although it refers to
the court determine whether that woman was relatives, next of kin does not refer to all relatives, it
claiming to be the legal wife of the decedent and refers only to relatives, who, under the law are entitled
therefore, a legal heir is really the legal wife of the to a share in the estate of the decedent. What law
decedent. So the probate court has the power to under the provisions of the Civil Code on succession,
resolve whether that woman claiming to be the legal the legal heirs -- who are the legal heirs? So these
________________________________
Page 46 of 75
are the persons referred to as next of kin. Now, Estate of Hilario Ruiz v. Edmond Ruiz
between one next to kin and another next of kin, who
has the better right to be appointed? Who has the Now, during the pendency of the settlement
proceedings, who are entitled to an allowance? Who
better right to be appointed as administrator? It
depends -- the one having the greater share in the among the heirs are entitled to an allowance
estate of the decedent has a better right to be according to the case of Estate of Hilario Ruiz vs.
appointed as administrator. Do you understand Court of Appeals, the Supreme Court said that under
class? So, that is the main factor that the court should Article 188 of the Civil Code, the decedent, legitimate
spouse, okay, so, the legitimate spouse of the
consider in deciding whom to appoint as
administrator, okay. Okay. decedent. His children -- the children of the decedent
-- are entitled to the allowance regardless of their age,
So, if there are several persons applying to be take note class, the children of the decedent are
appointed as administrator, each one of them must entitled to the allowance regardless of their age, civil
prove that he has a greater interest than the others to status or even if they have gainful employment. Okay.
be appointed as the administrator. So take note of that. Not only the minor children are
entitled to the allowance during the pendency of the
Okay, let's go to another case. Jose Lee vs. RTC of settlement proceedings. First, the surviving spouse
Quezon City. Do you have this in your list/syllabus? and all the children have the discipline, regardless of
So when is the property of the decedent deemed their age, civil status -- they may be married, or
transmitted to his heirs? So the Supreme Court regardless of their -- whether they are gainfully
answered that question in this case of Jose Lee vs. employed or not, even if they are gainfully employed,
RTC of Quezon City. So when is the property or when they have their own income, they are still entitled to
are the properties of the decedent transmitted to his allowance during the pendency of the settlement
heirs? Is it when the court issues an order of proceeding. That's according to the Supreme Court.
distribution to the heirs after the settlement That's not according to me. If it’s according to me, I
proceedings? The answer is no. It is at the moment of won't give anything to the surviving spouse. You
death of the decedent, that his properties are should take care of himself. He did not take care of
transmitted to his heirs. No, at the moment of death - me during my lifetime, why should she be entitled to
- upon death of the decedent, his properties are allow once during the pendency of the settlement of
automatically/immediately transmitted to his heirs. So my estate? I would even disinherit her, given the
you have to determine when at the moment of death, chance. My wife, class, is not listening. That's why I'm
that's when he acquires ownership of his share in the saying that. She is in the other room. That's why I'm
estate of the decedent. That's why when a decedent saying that, but she's listening in. She has her own
dies, an heir may already sell his aliquot share -- laptop, see, she might be listening. You'll see a name,
aliquot meaning undetermined -- he may already sell. which is unfamiliar to you. She might be that one.
Now, of course, the buyer would not know – the buyer
of that aliquot share in the estate would not know the Now, also, in this case of Estate of Hilario Ruiz vs.
exact area or if it is a parcel of land. But legally, upon Court of Appeals, the Supreme Court said before any
the death of the decedent, an heir may already sell distribution would be ordered by the court, all the
his undetermined or aliquot share in the estate. That debts -- including funeral charges, expenses of
was what was resolved in this case of Lee v. RTC of administration, allowance to the widow, and estate
QC because an heir sold his share even before there tax -- should be paid first. So, all the debts should be
was distribution. Okay, so the issue was whether that paid before any distribution would be ordered by the
sale was valid. According to the Supreme Court, that probate court. All the debts of the estate must be paid,
sale was valid because ownership of the properties including funeral charges, and the expenses of the
are transmitted to the heirs at the moment of death of administration and the allowance of the widow. Why
the decedent at the moment of death class, okay. Any only widow? Why not allowance of the widower?
questions? Suppose the surviving spouse is the husband. Is he
entitled to allowance? Because what is mentioned
________________________________
Page 47 of 75
here is the allowance of the widow. The widow refers should be filed? Expenses for the last funeral? I'm
to the surviving wife. Do you agree? If the surviving sorry. There's no first funeral then last funeral. There's
spouse is the husband – it is called a widower. But only one funeral for every person. So expenses for
the funeral of the decedent and expenses for the last
the allowance seems to pertain only to the widow.
illness of the decedent. Claims for expenses for the
Unfair, it's unfair to men. The law that we have are funeral and last illness of the decedent shall be filed.
unfair to men, there is gender discrimination plus These are of course, money claims — shall be filed
against men. Do you agree, class, our laws are with the probate court in the settlement proceedings.
biased against men and biased in favor of women. And lastly, judgment for money. So if there is already
a judgment for money against the decedent when he
Okay. Since you are not saying anything that means died, that judgment for money should be filed with the
you agree? No, you agree. So take note class, before probate court in the settlement proceedings. Okay, so
any distribution could be ordered by the probate those are the claims that should be filed with the
probate court in the settlement proceedings.
court, all the debts must have been paid, all the
expenses of administration must have been paid, the What about actual claims to recover property from the
allowances to the surviving spouse should have been decedent? Let us say, claims to recover a parcel of
paid. And all others, before distribution could be land from the decedent, you cannot file that with the
ordered by the probate court. probate court in the settlement proceedings because
it is not a money claim, only money claims may be
In the case of Union Bank vs. Santibanez, the filed with the probate court in the settlement
Supreme Court discussed what should be proved by proceedings, okay? So, what is the remedy of the
the petitioner for the court to allow a last will and creditor if his claim is not a money claim, but to
testament. We discussed that, if you remember. So, I recover property, like a parcel of land or even
remember discussing with you that what the petitioner personal property, what is his remedy? His remedy is
should should prove is the extrinsic validity of the will, to file a separate action against the estate
which pertains either to both two matters: first, is that represented by the administrator or the executor. So
the testator had testamentary capacity at the time he he has to file a separate action, Class. He cannot file
executive the will, and [second] that the last will and the claim to recover property with the probate court in
testament was executive in accordance with the the settlement proceedings because only money
formalities prescribed by law. Do you remember, claims may be filed with the probate court in deciding
class? Those two matters pertain to extrinsic validity. settlement proceedings. So the filing of money claims
So, according to the Supreme Court in the case of with the probate court is mandatory. Why is it
Union Bank vs. Santibanez, before the last will and mandatory? Because if the creditor fails to file his
testament can transfer properties of the testator to his claim with the probate court in the settlement
heirs, the last will and testament must be true and proceedings within the period prescribed by the court,
then allowed and what is to be proved? It is the then that money claim is lost forever. Although
extrinsic validity of the last will and testament, which nothing is forever, but that money claim is lost forever.
pertains to two matters: first, whether the testator had Only money claims are lost forever.
testamentary capacity when he executed the last will
and testament, and second that the last will and Now, what is the remedy of a creditor-mortgagee if
testament was executed in accordance with the the mortgagor-debtor is the decedent who is already
formalities prescribed by law. I hope you still dead. How will he seek the foreclosure of the
remember that class. mortgaged property? The decedent is already dead,
the mortgagor-debtor is already dead. So what is the
In this same case of Union Bank vs. Santibanez, the remedy of the mortgagee-creditor? He has different
Supreme Court also discussed the mandatory nature options. Actually three options, Class. The
of the filing of all money claims with the probate court mortgagee-creditor, if he wants he can forego the
in the settlement proceedings, you remember? We mortgaged property. If he wants, he can just file a
discussed what claims should be filed with the simple money claim with the probate court in the
probate court in the settlement proceedings. settlement proceedings. He will waive the mortgage,
Otherwise, they will be deemed lost forever. What are he will just file his money claim with the probate court
these claims? All money claims arising from contract in the settlement proceedings. But if he does that, he
expressed or implied, whether due, not due or cannot and he fails in his money claim with the
contingent should be filed with the probate court in the probate court, he can no longer resort to the
settlement proceedings. What other money claims foreclosure of the mortgage property. Because these
________________________________
Page 48 of 75
options are alternative. The mortgagee-creditor has of the probate court, the probate court may declare
to choose one. If he chooses one, he foregoes the that disposition null and void. Okay, that was the
other remedies. Okay. So that's one option of the ruling in the case of Silverio, Sr. vs. Silverio, Jr.
creditor-mortgagee, he forgets about the mortgage
and then he files a simple money claim with the And the probate court may declare the disposition null
probate court in the settlement proceedings OR he and void at any time during the pendency of the
can foreclose the mortgaged property against whom settlement proceedings. Only during that time, after
will file the action for foreclosure or mortgage? The the termination of the settlement proceedings, the
mortgagor-debtor is already dead. So if he chooses aggrieved party may have to file a separate action to
this option — to foreclose the mortgage, against have the disposition declared null and void, but during
whom will he file the action for foreclosure of the pendency of the settlement proceedings, if there
mortgage? Against the administrator or executor. is any unauthorized disposition of a property
Okay Class, is that clear? So, the mortgagee-creditor belonging to the estate, the probate court can declare
may opt to file an action for foreclosure against the it in the same proceedings — declare it null and void.
administrator or executor of the estate.
In the case of Spouses Butiong v. Plazo, the
And if there is a deficiency, Class — after the sale of Supreme Court discussed the instances when the
the mortgaged property, if there is a deficiency, the court has to appoint an administrator.
mortgagee-creditor can file the deficiency as an
ordinary money claim with the probate court in the Of course, the first instance is when the decedent
settlement proceedings. Okay. So the mortgagee- died intestate. So an executor could not not have
creditor may foreclose on the mortgaged property been designated because the decedent died intestate
against the administrator or executor of the estate, or left no will. Then the probate court has to appoint
and if there is a deficiency, he can file the deficiency an administrator or even if the decedent left a will, but
with the probate court in the settlement proceedings. if he did not designate any person in his last will and
The third option for the mortgagee-creditor is to testament as executor, then the probate court has to
actually extrajudicially foreclose the mortgaged appoint an administrator. Okay? The third instance is
property. The risk in that option Class is that if there when the decedent left a last will and testament, has
is a deficiency, the mortgagee-creditor can no longer designated an executor in his last will and testament,
recover the deficiency. Okay. So those are the three but the person designated as executor is either
options of a creditor-mortgagee against the decedent incompetent or he refused the appointment for the
— who is a deceased mortgagor-debtor. Okay, Class. designation or even if he's competent, he accepts the
So that was discussed in the case of Heirs of appointment but if it does not give a bond as required,
Maglasang vs. MBC. What's MBC? Do you know? then the court has to appoint an administrator. So
Heirs of Maglasang vs. MBC? Manila Banking those are the instances when the probate court has
Corporation. Okay. Okay, so Manila Banking to appoint an administrator. Let me repeat. The first
Corporation. instance is when the decedent died intestate; the
second instance is when the decedent left a will, but
The ruling in the case of Aranas vs. Mercado is the did not designate any person as executor or the
same as that other case where the Supreme Court decedent left a will, has designated an executor, but
discussed the power of the probate court to resolve the person designated as executor is either
the issue of ownership. We already discussed that the incompetent — meaning is a minor or not a resident
probate court has no jurisdiction or power to resolve of the Philippines or in the opinion of the court, he is
the issue of ownership. So that was also discussed in unfit to serve the duties of an administrator, okay? Or
the case of Aranas vs. Mercado, so we don't have to even if the person designated as executor is
discuss this again. competent, he accepted the trust but if he does not
give a bond, then the probate court has to appoint an
In the case of Silverio, Sr. Vs. Silverio, Jr., the administrator. That's the ruling in the case of
Supreme Court said that the probate court may Spouses Butiong vs. Plazo. So we are done with
declare any disposition of property under the cases regarding settlement of estate. Any
administration by the administrator or executor if the questions, Class?
same was effected without the authority of the
probate court. So meaning an administrator or
executor cannot dispose of any property belonging to
the estate. So if the administrator disposes of a RULE 91: ESCHEATS
property belonging to the estate, without the authority
What is Escheat?
________________________________
Page 49 of 75
- Escheat is what you do when you take an because the decedent left no heirs. So, the sole heir
exam? Escheat. Do you do that class? You of the decedent is the Republic of the Philippines. So,
know, there's so many complaints from you should understand an Escheat proceeding is the
professors. We have a group chat - the same as a settlement proceeding. Okay. So, knowing
professors have a group chat and we that an Escheat proceeding is similar to or the same
exchange notes regarding our experiences. as a settlement proceeding — only that in an Escheat
And I read a lot of complaints from professors proceeding, the Republic of the Philippines is the sole
that when students are calling for recitation, heir.
they read their answer. That's a common
complaint among professors. So I thought I Now, what court exercises jurisdiction over a
never posted a complaint myself. I have no Petition for Escheat?
complaints. No, because I see to it that when
I formulate my questions for recitation, even - It depends on the gross value of the estate
if you look at your notes, you won’t find your (RTC/MTC).
answer there so that solves the problem. - If the gross value of the estate does not
Okay. Although you may be able to answer exceed P300,000 outside Metro Manila or
some of my questions by looking at your does not exceed P400,000 within Metro
notes, but you cannot answer all the Manila, it should be filed with the MTC
questions. Okay, so let's discuss Escheat. (Exclusive Original Jurisdiction). (Par. 1, Sec.
33 of B.P. 129)
Now what is the literal meaning of the word Escheat? - If the gross value of the estate exceeds
P300,000 outside Metro Manila or exceeds
- As a noun, it means a reversal, a returning of P400,000 within Metro Manila, it should be
property to where the property previously filed with the RTC (Exclusive Original
belonged. So, that is the literal meaning of Jurisdiction). (Par. 4, Sec. 19 of B.P. 129)
Escheat, the concept of Escheat originated
during the Middle Ages — during the feudal How do you determine the proper venue in
times when the king in a kingdom distributes escheat proceedings?
vast tracts of land to his Lords. So, the Lords
in turn, distributes parcels of land to his - In the proper court where the decedent was
vassals, a Lord distributes parcels of land to a resident at the time of his death.
his vassals. So, originally these lands belong - If the decedent was a resident of the
in the kingdom — belong to the king. The Philippines at the time of his death, the
King, to maintain the loyalty of the feudal escheat proceedings of his estate shall be
lords, the king distributes vast tracts of lands done in the proper court of the place where
to these feudal lords who in turn distribute he was resident at the time of his death.
small parcels of lands to his vassals. So, - If the decedent was not a resident of the
when a vassal dies without leaving any heir, Philippines at the time of his death, the
then the the properties — the lands of the escheat proceedings of his estate shall be
vassal who died without any heir, done in the proper court of the place where
returns/reverses to the feudal lord who gave the properties or any portion thereof were
him that land. So, that is the concept of located or situated.
Escheat, Class. At present, since we don't
have kings or feudal lords, the principle is that *In the case of escheat proceedings, there is only one
all lands belong to the State. So, if a person petition that may be filed. There is only one petitioner.
dies without leaving any heir or any person The exclusionary rule is not applicable.
entitled to his estate, then all the properties of
By whom may a petition for escheat be filed?
the person will go back to the State to which
it originally belonged, at least that's the - By the Republic of the Philippines,
concept of Escheat. represented by the Office of the Solicitor
General or his representative.
So, in short, an escheat proceeding simply means a
settlement of estate proceedings where the Republic What should the court do upon the filing of a
of the Philippines is the sole heir. A settlement petition for escheat?
proceeding is a settlement of estate proceeding but
the Republic of the Philippines is the sole heir - If the petition is sufficient in form and
________________________________
Page 50 of 75
substance, the Court shall issue an order the judgment of the escheat proceeding.
fixing the time and date of the hearing of the
petition and the order shall be directed to the Other actions for escheat?
petitioner to cause the publication before the
hearing at least once a week for six (6) - Section 5, Rule 91. If there is transfer of
successive weeks in some newspaper of property seized in violation of the Constitution
general circulation published in the province. (an alien may not own a real property in the
Philippines) or any statute. Example, Parcel
When should the court fix the hearing of the of land sold to an Australian Citizen.
petition?
- Not more than 6 months from the entry of the

order. CASES ON RULES 91 AND 92:
What matters should the petitioner (Rep. of the Rule 91: Escheat
PH) prove so that the court will grant the petition?
ALVARICO v. SOLA
- The petitioner shall prove all the requisites In this case the Supreme Court just said that all
that: actions for escheats shall be filed or may be filed only
by the Republic of the Philippines, represented by the
1. The decedent died intestate.
Solicitor General; and there is a basis in law for that,
2. The decedent left personal or real
properties. the Supreme Court cite that section 101 of the public
3. The decedent left no heirs or any person plan Act, which provides that all actions for escheats
who is entitled to his estate (creditors). or reversion to the government of lands of the public
domain or improvements, thereon, shall be instituted
Suppose all the requisites were proven, for whose by the Solicitor General acting in the name of the
benefit these personal or real properties be Republic of the Philippines. So, that's the basis in law
given?
of the rule that an action for escheats or a petition for
- Personal Property an escheat; may be filed only by the Republic of the
Philippines represented by the Solicitor General. A
A. if living in the Philippines - private person cannot file a petition or escape for
city/municipality where he last obvious reasons that the action is for properties left
resided;
by a decedent to guide without heirs to be reversed to
B. if not living in the Philippines -
city/municipality where the properties return to a government. So why should a private
may be found. person file an action for escheat? So, and there is,
Real Property - whether living in the Philippines or as I said, a basis in law for that which is section 101
not, it shall be given to the city/municipality where the of the public land act.
properties are situated.
Maltos v Heirs of Eusebio Borromeo
For what purpose will these properties be used?
Now, in this case, the Supreme Court cited that one
- It will be used for public schools, public instance when an action for escheat is proper. in this
charitable institutions and centers in the said case, a land covered by a free patent was sold during
municipalities or cities the five-year prohibitory period under the public land
What is the remedy of an heir or a person who is act. According to the Supreme Court, in a sale of a
entitled to a share in estate whether as an heir free patent within a five-year period, where the sale of
who was excluded from the estate or creditor if an a land covered by a free patent is prohibited, any sale
estate was escheated in favor of the Republic of occurring within that five year period is null and void.
the Philippines? Within what period? So, what is the remedy? If a land covered by a free
patent is sold within that five-year period, where any
- He may file his claim in the court before which
the escheat proceeding was tried and disposition of the land is prohibited under the law, the
decided within five (5) years from the date of remedies for the government through the Solicitor
________________________________
Page 51 of 75
General to file a petition for petition of escheats. So petition for the petition with the court, to ask
this is one instance when an action for escheats filed permission from the court to sell the property of the
by the Republic of the Philippines is proper to recover ward, otherwise such sale entered into by his parents
a parcel of land covered by a free patent, sold within on behalf of his minor child without judicial authority
the prohibited five year period. is unenforceable unless it is ratified by the minority
when he reaches the age of majority.
Rule 92: Guardianship
NILO OROPESA v. OROPESA
CANIZA v. COURT OF APPEALS In this case, the Supreme Court just define the nature
The Supreme Court discuss the different duties and of the relationship between a guardian and a ward.
powers of a guardian. So according to the Supreme According to the Supreme Court, guardianship is a
Court, the Guardian over the person and estate of the trust relation of the most sacred character in which
ward are appointed by a competent court has full one person called a guardian acts for another, called
authority to take possession of ward’s the property a ward, whom the law regards as incapable of
and to perform all other acts necessary for the managing his own affairs, or taking care of himself. A
management of such estate. It is also the duty of the guardianship is designed to further care of the ward’s
guardian to take care of the ward’s person and to well being Not the well being of The Guardian. so
attend to his or her physical as well as spiritual needs guardianship is for the benefit of the ward, not for the
to assure the ward to assure the wards well-being. A benefit of the guardian. Okay, let's so that's how the
guardian also has the right to the custody of the ward; Supreme Court define or describe the nature of the
in preference even to the relatives and friends of the relationship between a guardian and his or her ward.
ward. So, the guardian has the right to the custody of
the ward even in preference of the relatives of the ABAD v. BIAZON
ward or the friends of the ward. Supreme Court said that the relationship between a
guardian and a ward is necessarily terminated by the
NERI v. HEIRS OF HACHI USOP UY death of either of them. Of course, when, when the
according to the Supreme Court, a sale entered into Guardian dies, the guardianship is terminated. When
by the father of a minor acting as a legal guardian in the work dies, the guardianship is terminated. Here,
behalf of this minor child without the proper authority there was a petition for review on certiorari filed with
of the court is unenforceable in accordance with the Supreme Court assailing the appointment of The
articles 1317 and 1403 of the Civil Code. So Guardian. So there was a petition for review on
according to the Supreme Court, a sale entered into certiorari, under rule 45, filed with the Supreme Court,
by the father acting as a legal guardian, in behalf of assailing the appointment of The Guardian and then
his minor child, without the proper authority of a the Guardian died during the pendency of that appeal
competent court is unenforceable under the before the Supreme Court. So what is the effect of
provisions of the Civil Code. Unless, such sale is the death of the guardian to the pending appeal?
ratified by the minor when he reached the age of We the supreme court where the appointment of The
majority. Guardian is being a sale. So according to the
Supreme Court, since the relationship between a
Okay. So take note, a legal guardian, is one who guardian and a ward is terminated by the death of
becomes a guardian, by operation of law, a parent of either of them, the pending appeal is rendered moot
a parent of a minor, by being a parent, automatically and academic. there's no need to proceed with the
or by operation of law becomes a guardian of the appeal because there's no relationship anymore of
minor. He does not need any judicial appointment. So guardianship between the Guardian who died and the
you need not or she may not be appointed by the ward, there is no more guardianship. The appeal has
court. But if the parent is the legal guardian of this become moot and academic.
minor child, or a her minor child would want to sell any
property belonging to the minor he needs judicial
RULES 92-97: GUARDIANS AND GUARDIANSHIP
approval. So what should he do? He should file a
________________________________
Page 52 of 75
There are two kinds of Guardians. What are these their properties, thereby becoming easy prey
kinds of Guardians? to deceit or exploitation.
1. Legal Guardians - by operation of law

a. Biological Parents of a What is it that a person suffering the penalty of
minor/incompetent person civil interdiction?
2. Judicial Guardians - by appointment of a
competent court - They cannot dispose of their properties if they
a. Guardian ad litem - a person are suffering the penalty of civil interdiction.
appointed by the court to represent a Therefore, a guardian may be appointed
minor or a competent person who is regardless of their mental capacity or ability,
a party in a pending case before the to manage their properties.
court.
What rules govern petitions for guardianship? Why are hospitalized lepers considered
incompent? Lepers who are not hospitalized are
- It depends. For incompetent persons, Rules not considered incompetents.
92-97 of the Rules of Court will govern. If over
minors, Administrative Circular 03-02-05-SC - Hospitalized Lepers cannot be confined in an
governs which took effect on May 1, 2003. ordinary hospital. There is a leper colony in
Palawan. They are hospitalized in that place.
What court exercises jurisdiction over petitions of They are confined to one place that is why a
guardianship? hospitalized leper — being confined cannot
manage their properties. That is why a
- It depends. For Petition for guardianship of guardian may be appointed to manage their
incompetent persons are cognizable by the properties while they are hospitalized.
regional trial court - being incapable of
pecuniary estimation (Par. 1 of Sec. 19, B.P. Who are prodigals?
Blg. 129). For Petition for guardianship of
minors, family court. - A person who spends his money recklessly
and irresponsibly so that he can’t manage his
What is the proper venue for petitions of properties that’s why he needs a guardian to
guardianship of incompetent persons? manage his properties for him.
- The Regional Trial Court of the place where Who may file for a petition of guardianship of an
the incompetent person resides. incompetent person?
What court exercises exclusive and original - Any relative, friend or any other person may
jurisdiction over petitions for guardianship over file in behalf of the incompetent person?
minors?
May the petition of guardianship of an
- Family court (Sec. 5 par. B of Family Court incompetent person be opposed?
Act of 1997 or Republic Act No. 8369).
- Yes, on the following grounds (Sec. 4, Rule
For purposes of guardianship, who are 93 of the Rules of Court):
considered incompetent persons?
1. Competency of the alleged incompetent;
1. Person suffering the penalty of civil 2. Unsuitability of the person seeking to be
interdiction appointed as guardian.
2. Hospitalized Lepers
3. Prodigals
4. Deaf and mute who are unable to read and Order of preference in the appointment of a
write guardian of a minor:
5. Persons of unsound mind
6. Who are of sound mind but for reason of age, 1. Surviving grandparent (in case there are
illness, weak mind, and other similar causes several, the court must select taking into
are unable to/cannot or without outside aid account all relevant considerations);
cannot take care of themselves or manage 2. Oldest sibling (brothers or sisters over 21
years old unless disqualified)
________________________________
Page 53 of 75
3. Actual custodian of the minor over 21 years - Trust is a fiduciary relationship, that is
old unless unfit or disqualified created when a person calls the trustor
4. Any other person in the sound discretion of transfers the legal title and possession of his
the court would serve the best interest of the
property to another person or the trustee for
minor
the benefit of a third party called the
beneficiary,
PETITION FOR GUARDIANSHIP OF MINORS:
What is a fiduciary relationship?
On what ground may the petition for guardianship
- Relationship based on trust. Why? because
of minors be filed?
a person called the trustor transfers the legal
1. Death, continued absence or incapacity of title and possession of his property to another
both parents of the minor; person or the trustee. For benefit of a third
2. Suspension, deprivation or termination of party called the beneficiary.
parental authority of parents;
3. Remarriage of the surviving parent if the
So, a trust always involves three parties; who are
latter is found to be unsuitable to exercise
parental authority (What is the ground? The these parties?
remarriage or the fact of unsuitability? - The trustor which creates the trust. The
Ground has no relation to remarriage, it is the trustee, the person on whom the trustor
fact of unsuitability. Even if parent did not entrusts his property for the benefit of a 3rd
remarry but still found to be unsuitable, then party called the beneficiary.
the petition may be allowed)
4. When the best interest of the minor so
How many kinds of trusts are there?
requires
- there are two kinds: implied and express
Under the general powers of a guardian, may a What is implied trust?

guardian sell or dispose of real property of his - is one that is created by law or established by
ward, whether an incompetent person or a minor? operation of law. When certain conditions are
- Under the general powers of the guardian, present, then a trust is created according to
no. the provisions of law.
However, the guardian may sell provided that he files What are these provisions of law under which an
a petition with the court seeking permission to sell a
implied trust may be established?
specific property. On what ground/reason? If the
property or income of the ward is insufficient for his - It is governed by 1443 - 1446 of the Civil
maintenance and his family Code.
On what grounds may the petition for How is an express trust established?
guardianship of a minor be opposed? - a trust relationship is not an agreement. It is
1. That the alleged minor is no longer a minor; a unilateral act. An expressed trust is
2. The unsuitability of the person seeking to be established by a unilateral act of a person.
appointed as guardian; Unlike an agreement, it's always an
3. If there is an order of preference of agreement is always the meeting of the
appointment of guardian (i.e. grandparents minds of at least two persons, but a trust
vs. oldest siblings) relationship is established by the unilateral
act of one person called the trustor. So an
expressed trust is one that is created or
RULE 98: TRUSTEES
established by the intention of trustor.
- So when the trustor transfers the legal title
What is a trust? Define a Trust.
and possession of his property to another
called the trustee, for the benefit of a third
________________________________
Page 54 of 75
party, a trust relationship is created. Of has to name the beneficiary. So that's how
course, the trustee has to accept the the trustor will established a trust by
appointment. But it is the intention, it is the transferring the legal title and possession of
act of the trustor of transferring the legal title his property to a trustee, and then naming a
the legal title or possession of his property to beneficiary.
the trustee for the benefit of a beneficiary - But if that that's how it is done, take note,
which creates the trust so it's not an there's no need for any special proceeding. If
agreement between two parties. It's a unit the trustor names or designates a specific
unilateral act person as his trustee, and transfers to him the
legal title and possession of his property,
- So, an expressed trust is one that is then there's no need for any special
established by a unilateral act of a person proceeding, because although it may not be
called a trustor when he transfers the legal clear, under Rule 98. The special proceeding
title and possession of his property to the here is for the appointment of the trustee.
trustee the for the benefit of a beneficiary. Although it's not clear, based on the
expressed trusts are governed by articles provisions of rule 98, it is not clear that the
1447- 1457. special proceeding here is for the
appointment, a petition for the appointment of
There's no need for a special proceeding with regard a trustee, that's the special proceeding that
to the creation or establishment of implied trust we are discussing under Rule 98. It's not
because they are established by operation of law, clear, you won't know that easily and
there's no need for a special proceeding. So, we are immediately by just reading the provisions of
not interested in implied trust we are interested only rule 90.
with express interest. So, how is an express trust is - that is the special proceeding, the filing of a
established or created by a trustor? petition or the appointment of a trustee, that's
- Expressed trust is established either in a last why the title is trustees. But the problem is, if
will and testament or in any other written the trustor names or designates a trustee,
instrument. So, when a testator executes his then that trustee need not be appointed by
last will and testament, he may create a trust the court. He is the trustee without the need
in his last will. So an expressed trust may be of judicial appointment. Okay, did not have
created or established by the testator in his that class, there's no there's no need for
last will and testament, or the trustor may special proceedings for the appointment of a
establish in a written instrument. trustee because when the trustor appoints a
- How would he establish a trust? By trustee in a written instrument or in his last will
transferring in that last will and testament or and testament, then there's no need for the
in the written instrument, the title and the court to appoint a trustee, and there's no
legal title and possession of this property to need for a petition for the appointment of a
another person to the trustee for the benefit trustee to be filed.
of a third party called the beneficiary. That's
how an express trust is established in a last In what instances is there a need to file a petition for
will and testament or in any other written the appointment of a trustee in a competent court
instrument. So, the trustor will establish he because as I said, if a trustee is appointed by the
establish a trust, must transfer the legal title court or in a written instrument, there's no need for the
or possession and possession of this court to appoint a trustee for the filing of a petition or
property to a trustee. So necessarily the trustee
trustor as to designate or appoint a trustee, - 1. when the trustor for some reason, fails to
when he establishes a trust, either in his last designate a trustee in a last will and
will and testament, or in a written instrument, testament where he establishes a trust
he has to designate a trustee. And then he
________________________________
Page 55 of 75
- NOTE: the trust must be clearly and
positively created established by the trustor. NOTE: Rule 98 is a special proceeding for a
there should be a clear express intention on petition for the appointment of a trustee. Even
the part of the trustor to create a trust, it in the case of an executor or administrator,
should be clear. So if the testator clearly they have to be appointed by the court as
established a trust in his last will and trustee. But if the testator himself, named a
testament, but did not name anybody as trustee in his last will and testament, then
trustee. it's not necessarily that the there is no need for the court to appoint a
administrator is the trustee of a trust. So the trustee
testator has to name another person, a
specific person as trustee. So if the testator What court has jurisdiction over a petition for the
fails to name a person, any person as trustee, appointment of a trustee?
but he clearly established a trust in his last - RTC because it is incapable of pecuniary
will and testament, then there's a need for the estimation, because you cannot assign a
court to appoint a trustee. monetary value on the petition.
- BASIS: [paragraph one, section 19 129]
- 2. let us say, the testator clearly established which provides that the Regional Trial Court
a trust in his last will and testament, and he shall exercise exclusive original jurisdiction in
named somebody as a trustee. But that all cases where the subject in litigation is
person name as trustee of the trust, incapable of pecuniary estimation,
establishing the last will and testament
declined the appointment, or even if he Venue. where do you file the petition for the
accepted the appointment, he resigned or he appointment of a trustee?
died or otherwise, he's terminated as a - there's no provision under Rule 98 regarding
trustee for some reason, proper venue,
Then there would now need for the court to - Before you can determine the proper venue
appoint a trustee, so the testator may make or a petition for the appointment of a trustee
somebody, as trustee in his last will and you have to identify whether a petition for the
testament, but that trustee declined the appointment of a trustee is a real action or a
appointment or after accepting the personal action.
appointment he resigned, or he accepted the - REAL ACTION is one that affects title two, or
appointment, But later on, he died off COVID- possession of your property. a real action
19. So there would now be a need for the shall be commenced and tries in the proper
appointment of a trustee Or if a person was record of the place where the real property
named as trustee, he accepted the involved or a portion thereof off is situated.
appointment and was later on, terminated. - PERSONAL ACTION is any action not a real
Let's say he became incapacitated, so he can action. It shall be commenced and tried in the
no longer perform the duties of a trustee. So proper court of the place where the plaintiffs
there would now be a need for the court to reside, or where the defendant resides at the
appoint a trustee. election of replay.
- So before you will know the proper venue,
But take note if the testator himself or the you should first ask the question. Was the
trustor himself provided for a way of trust that was created, affect Real Action or
substituting the trustee in case he declines personal action? Then apply the rules.
the appointment or in case he resigns or dies
or is terminated, if the testator himself - NOTE: the petition for a trustee is an action
provided for a way for the substitution, then personam hence, there is no a specific
that should govern. And there would be no defendant made
need for a court to appoint a trustee.
________________________________
Page 56 of 75
What about the beneficiary should the beneficiary
accept the benefit expressly? Remember, there When is there legitimate filiation?
should always be three parties involved in interest. - There is a legitimate relation between a
Without one, the trust will not exist. So, the question parent between parents and a child when the
is the express consent of the beneficiary necessary parents are legally married. A relationship
for the existence of the trust? between his married parents and a child
- it is not essential because the consent of the - what adoption seeks to create between two
beneficiary is presumed. So even if the persons a relationship similar to that of
beneficiary does not give his expressed legitimate filiation not just filiation but
consent, his consent is presumed by law. It's legitimacy.
only when he expressly rejects the benefit - Filiation which is the relationship between a
that the trust will came. If the beneficiary does child and his married parents
not say anything, then his consent is - what is sought to be created by adoption is
presumed. Express consent is not not filiation alone, but legitimate filiation
necessary. It's not needed, because it's
always presumed that the beneficiary What laws govern adoption in the Philippines?
accepts the trust even if it does not say - Domestic Adoption Act [RA 8552]
anything. - ICAD Act [RA 8043]
RULE 99: ADOPTION What rule or rules govern adoption in the Philippines
both domestic adoption and inter country adoption
What is what is adoption? what rules or set of rules govern adoption because
- adoption is a juridical act which creates rule 100 has been repealed
between two persons a relationship similar to - AM-02-06-02-SC [August to 22, 2002]
that which results from legitimate filiation
- it creates a relationship between two What court exercises exclusive original jurisdiction
persons. Meaning, that relationship does not over petitions for adoption under Republic Act 8552.
yet exist, because why create a relationship - The court with exercises original and
if it already exists. So, what is supposed to be exclusive jurisdiction is the family court under
create that does not yet exist between a Paragraph C, Section 5, Family Court Act of
relationship between two person. So, what 1997, RA 8369; it is provided that the family
does adoption do? it creates a relationship courts shall exercise exclusive original
between two persons similar to that, which jurisdiction over petitions for adoption of
results from legitimate affiliation. So, at the children under RA 8552.
start, there is no relationship similar to how do you determine proper venue of petitions for
legitimate filiation between two persons. adoption of children?
- So adoption, which is a juridical act, creates - the proper venue for a petition for adoption
that kind of relationship, which is similar to under RA 8552 is the family court where the
that which results from legitimate creation. place where the adoptive parents reside [
Sec. 6, AM 02-06-02- SC].
What is legitimate filiation?
- There is a legitimate filiation when the who may adopt under RA 8552?
relationship between a father or between a - Under the domestic adoption act the
parent and the son or daughter, has no legal following are persons who can adopt legally:
impediments Filipino citizen
Alien
Is there a filiation between a biological parent,
whether a father or a mother and his or her child? What qualifications should a Filipino citizen have to
- Yes, there is filiation by that fact alone adopt under domestic adoption?
________________________________
Page 57 of 75
- the qualifications to have a Filipino citizen for the adoption cannot proceed without
him for him or her to be able to adopt under the consent of the other spouse.
the domestic adoption are the following: Why is that required?
i. He must be of legal age; Once adopted by the parent, the
ii. he must be a good moral character; spouse who is the parent of the
iii. he must be of good moral character; illegitimate child, that child will
iv. has not been committed a crime acquire all the rights of legitimate
involving moral turpitude; child as far as the parents who
v. the Filipino citizen must be at least 16 adopts him is concerned; he will
years older. acquire all the rights of a legitimate
vi. the adopters must be in the position child including succession and rights.
to support and care for the child Then that child now if adopted by the
within the means of the family; parent, will not compete with the
vii. must have full civil capacity other spouse, as far as successional
viii. must be in possession of the school rights are concerned.
civil capacity and legal rights
You know that the share of the
Why is it a requirement or a qualification that a Filipino surviving spouse in the estate of the
citizen wants to adopt under domestic adoption? be deceased, the spouse is equal to the
at least 16 years older than this? share of one child of that illegitimate
- Adoption creates legitimate filiation. To child and if one illegitimate child is
approximate legitimate filiation. adopted by the parent, that child will
acquire all the rights of illegitimate
Now what qualifications should an alien have to adopt child including succession of rights,
under the domestic adoption? and he will be competing with the
- the alien must have the qualifications other spouse. So that gives the other
required by law of Filipino citizens spouse a reason not to give consent
to the adoption. And if he does that,
Why you would that requirement that spouses should he or she does have a consent, then
adopt jointly approximate legitimate a filiation, which the adoption will not proceed.
we said earlier, is the relationship of a child and his Another thing the feelings of the
married parents. other spouse know one spouse has
- To approximate legitimate filiation because a child outside the marriage wants to
there is no legitimate filiation between one legitimize the status of that child to
parent child, there should always be two that of legitimacy and give him all the
parents. So if one spouse will adopt then that rights of illegitimate child so that the
will not approximate legitimate filiation other spouse may not want that.
What are those instances with the spouses are not READ: who may be may be adopted under the
required to adopt jointly? domestic adoption Act. The rules says that minors in
i. when the adopters wants to adopt the custody of the Department of Social Welfare and
the legitimate child of his or her Development if declared by the DSW D, as legally
spouse. Because there is already a available for adoption, the legitimate child of one
legitimate filiation for that spouse spouse or the other, or illegitimate child of one spouse
with regards to that child, so there is by the other spouse to elevate the status of his or her
no need for jointly adopting him or illegitimate child,
her
ii. when the adopter sir seeks to adopt May a person of legal age be adopted? When?
his or her illegitimate child. In fact,
________________________________
Page 58 of 75
- As a rule, only minors can be adopted. a he does not want to do that, if the alien does
person of legal age cannot be adopted as a not want to do that, then he can adopt under
rule. Only by way of an exception may a the intercountry adoption act. There's a
person of legal age be adopted. not as a problem only to that there's a catch,
general rule, but that's an exception. the only
instance when a person of legal age may be What is that? who may be adopted under the inter
adopted is when that person has been country adoption
consistently treated and considered by the - only those only those minors who are
adopting parents as their own child since he qualified to be adopted under the domestic
or she was a minor. okay. So a person of adoption act, but for one reason or another
legal age regardless of his marital status, he cannot be adopted. So, it should be shown
may already be married, may be adopted. If first before a child of Filipino child may be
he, been consistently treated, and adopted under ICAD, it must be shown that
considered by the adopting parents, as their that child that child for some reason cannot
own child, since his or her minority, provided be adopted under the domestic adoption.
that that condition is true that he has been
persistently treated and considered by the What court exercises jurisdiction over petitions for
adapting parents as their own child since his adoption ICAD?
or her minority since she or he was a minor. - may be filed either with the family court of the
place where the child is found or where the
If the adoptee is of legal age, because under the child decides or directly with the inter country
family courts act of 1997, the family court shall adoption board. If the petition for adoption
exercise exclusive regional jurisdiction over petitions under the inter country adoption act is filed
or adoption of children, meaning minors, but here the with a family court, it will not decide the case.
adoptee is of legal age. So what court exercises Family Court will just determine whether the
jurisdiction over application for adoption of an petition is sufficient in form and substance
adoptee who is of legal age? once it determines that the petition is
- RTC, are incapable of pecuniary estimation; sufficient in form and substance the Family
Section 19, Par 1 BP 129 Court will refer to case to the inter country
adoption board. So, it's the inter country
Who may adopt under ICAD? adoption board that exercises jurisdiction
- Aliens or Filipinos residing abroad over petitions for adoption under the inter
A Filipino citizen who is a green card holder country adoption. It’s not these Family Court.
is not a permanent residence in the It's an administrative proceeding, it's not a
Philippines anymore, he is a permanent judicial proceeding, the adoption under the
resident of the United States. So, that Filipino inter country adoption act.
citizen under the domestic adoption must be
made under the inter country adoption act, NOTE: there’s no more special proceedings for
because although he simply because he said constitution of family homes, it is done by operation of
he is no longer a permanent resident of the law.
Philippines.
voluntary dissolution – no more special proceeding in
What about an alien? court, it is already transferred to SEC
- an alien was never resided in the Philippines
hence he must adopt base on ICAD, because Judicial Recognition of Natural Child – no more
if he wants to adopt under the domestic special proceedings
adoption, then he should reside in the
Philippines for at least three continuous years
before departure upon filing of the petition. If
________________________________
Page 59 of 75
RULE 102: HABEAS CORPUS corpus affords a much quicker and more effective
remedy.
Habeas corpus is a Latin phrase, which literally
means to have or to produce the body. Corpus means Jurisprudence mandates that for the writ of habeas
body, as in Corpus Christi, Body of Christ. Knowing corpus to be available, the restraint on a person's
what habeas corpus literally means what then is a writ liberty must be actual and effective, not moral or
of habeas corpus. A writ of habeas corpus is an order nominal. Physical restraint, however, is not always
issued by a competent court, directing a person necessary. As long as there is restraint, that
detaining or having custody of another to present effectively frustrates a person's freedom of action. A
before the court at a given time, and date, the person person may not be behind bars, or shackled with
he is detaining, and to explain to the court, the legal change but if he is being effectively deprived of his
basis for the detention or custody. This definition liberty, by some threat or bodily harm, then he may
informs us that when a court issues the writ of habeas apply for the writ of habeas corpus. Since actual and
corpus, it does not determine yet the legality or effective restraint is a prerequisite for the issuance of
illegality of a person's detention. By issuing the writ, the writ, a person who may have been unlawfully
the court simply orders the person detaining another detained, but was later granted bail and accorded,
to appear before it together with the person he is temporary liberty or otherwise ordered released by
detaining and to explain to the court, the legal basis the court may no longer avail himself of the writ of
of detention. habeas corpus. And if there is alwritsy a pending
habeas corpus case, then such proceeding should be
It is only after this confrontation between the court, dismissed.
the person detaining another and the person
detained, that the court will conduct a hearing to By whom may the writ of habeas corpus be issued?
determine the legality or illegality of the detention. If In other words, where may the petition for the writ of
the court finds that detention lacks legal bases, it will habeas corpus be filed Sec 2 of rule 102 ordains, that
order the person's release. If the detention is with the petition may be filed with the (1) Regional Trial
legal bases, the court will allow the person's Court or a judge thereof; (2) It may be filed with the
continued detention. Court of Appeals or any member thereof and (3) It
may also be filed with the Supreme Court or any
On what grounds may a person properly apply for the member thereof. If the petition pertains to the custody
writ of habeas corpus? of a minor, it shall be filed with the Family Court. This
Sec 1, Rule 102 gives us two grounds. First, when a is provided for by paragraph (B) Sec 5 RA 8369, also
person is illegally detained, or otherwise deprived of known as the Family Courts Act of 1997. Based on
his liberty, or second, when a person is unlawfully existing jurisprudence, however, this law has not
deprived of the rightful custody of another. deprived the Court of Appeals or the Supreme Court
of their jurisdiction over petitions for writ of habeas
A mother was been deprived by his estranged corpus involving minors. What does it mean that the
husband of the custody of her five (5) year old petition for writ of habeas corpus may be filed with a
daughter has two remedies to choose from: (1) she Regional Trial Court or a judge thereof with a Court of
may file a petition for custody of minors under Appeals or any member thereof or with the Supreme
Administrative matter number 03-04-04-SC or (2) the Court or any member thereof? Let me explain. In all
mother may apply for the writ of habeas corpus under other instances where the law confers on a court, or
Rule 102. regional jurisdiction over a case, the initiatory
pleading is always filed with the court never with a
In both these remedies, the court may fully resolve judge or a member of the court. A petition for writ of
the issue as to who between the parties has the better habeas corpus is unique, because it may be filed not
right of custody over the minor. Between the two only with the court, but also with the judge or a
remedies there is no question. The writ of habeas member of the court. Thus, a petition for writ of
habeas corpus may be filed with the Regional Trial
________________________________
Page 60 of 75
Court as a court of law, or it may be filed with its judge be ordered to appear before the court and bring with
separate from the Regional Trial Court where he him the person he is detaining. If the person detaining
presides. The petition may be filed with the Court of another is not an officer, the writ shall be directed to
Appeals or with the Supreme Court as a collegiate an officer, who shall be ordered to take custody of the
court or it may be filed with any of its justices, person being detained and present him to the court.
separate from the court of which he is a member. The officer will also be directed to summon the person
detaining another to appear before the court and
To illustrate, a person who wants to file a petition for explain to the court the reason for the detention.
writ of habeas corpus, may go to the Court of Appeals
at Padre Faura Street during office hours on a The officer to whom the writ is directed, is required to
Monday and file his petition there. Or he may go to submit to the court a written Return of the writ, where
the house of a justice of the Court of Appeals at 11 he shall state, among others, the legal basis for the
o'clock in the evening on a Sunday and file the detention.
petition with him. Of course, there is no guarantee that
he will be allowed inside the house of the justice. Take note that the court which issues the writ may not
necessarily be the same court where the return of the
The rule provides that the court, judge or justice with writ will be made. This happens because the court
whom the petition is filed, may issue the writ on any which issues the writ may make the writ returnable
day and at any time. not to itself, but to a lower court.
Assuming a person wants to file the petition for writ of Let us say that upon the filing of a petition, the third
habeas corpus with the Regional Trial Court or the division of the Court of Appeals issues the writ of
Family Court, to what province or city should he go to habeas corpus. The third division, may, however,
file the petition? make the writ returnable not to itself but let us say to
the Regional Trial Court of Pasay City. The person to
In the recent case of Tujan Mlitante versus Cada- whom the rate is directed, will make a return of the
Deapera. The Supreme Court ruled that if the petition rate not to the third division of the Court of Appeals,
is to be filed with the Regional Trial Court or the family which issued the writ but to the RTC of Pasay City to
court, it shall be filed in the city or province of the which the writ was made returnable.
judicial region where the writ is intended to be
enforced. In the 2015 case of Datukan Malang Salibo versus
Warden. The Supreme Court explained the
Let us say that Juan is unlawfully detaining Pedro at procedure when the court which issued the writ
the former's house in Las Pinas City where should makes it returnable to a lower court. Let's listen to the
Pedro's wife file the petition so that the writ can be court. Should the court issuing the writ designate a
enforced against Juan in Las Pinas City the petition lower court to which the writ is made returnable, the
may be filed with the RTC of any city in the National lower court shall proceed to hear and decide the
Capital Judicial Region petition. By virtue of the designation, the lower court
acquires the power and authority to determine the
The rule is that a writ issued by the Regional Trial merits of the petition and render judgment therein.
Court or the family court may be enforced at any place The judgment of the lower court may then be
within its Judicial Region. On the other hand, a writ appealed to a higher court having appellate
issued by the Court of Appeals or the Supreme Court, jurisdiction over it.
or any of its members, may be enforced anywhere in
the Philippines. From this we learn that when the court that issued the
writ makes it returnable to a lower court, the lower
To whom shall the writ of habeas corpus be directed? court acquires the power to hear and decide the
It depends. If the person detaining another is an petition as if it was originally filed with it. The judgment
officer, the writ shall be directed to him, and he shall rendered by the lower court in the petition for habeas
________________________________
Page 61 of 75
corpus is appealable as if it was rendered by the lower into all manner of involuntary restraint and to relieve
court in the exercise of its original jurisdiction. a person there from if such restraint is illegal. If there
is no restraint on a person's liberty whatsoever, the
In the same case of the Datukan Malang Salibo, the writ of habeas corpus is unavailing.
Supreme Court made a distinction between the writ of
habeas corpus that is issued by the Court upon the In Cirapio vs Sandiganbayan. The Supreme Court
filing of a petition and the judgment rendered by the reinstated an old doctrine that the writ of habeas
Court after the hearing of the petition. It is the writ that corpus does not lie where the person alleged to be
orders the production before the court of the person restrained of his liberty is in the custody of an officer
allegedly restrained of his liberty. On the other hand, and their process issued by a court, which had the
it is in the judgment, where the court determines the jurisdiction to issue the same. This is especially true
legality or illegality of the detention. when the detainee was put under detention pursuant
to a warrant of arrest issued by the court after the
Between the issuance of the writ and the rendition of filing of an information against him. Moreso, if the
the judgment, the issuance of the writ is of greater detainee voluntarily surrendered to the authorities
consequence. The issuance of the writ sets in motion, upon learning that a warrant for his arrest had been
the speedy judicial inquiry on the legality of a issued.
detention. It is for this reason that the Supreme Court
has enjoined trial courts to issue writs of habeas In the case of Sanka vs City Prosecutor of Cebu. The
corpus with liberality. Even if the petition for its Supreme Court ruled that although the aggrieved
issuance may, on its face, appear to be devoid of party was unlawfully deprived of his liberty if he has
merit. It is better for the trial court to err on the side of alwritsy been released from detention by order of the
issuing the writ than to err on the side of denying it. court, the pending petition for writ of habeas corpus
Much greater harm is done when the writ is wrongfully should be dismissed for having been mooted.
denied than when it is wrongfully granted.
In another case, the Supreme Court ruled that even if
Let us discuss some of the significant doctrines a person's detention was, at its inception, illegal but
relative to the writ of habeas corpus that the Supreme due to some supervening events, such as the filing of
Court has laid down in a number of recent cases. an information against him, and the issuance of a
warrant for his arrest, the detention becomes legal. A
In the case of Ilusorio versus Bildner, the Supreme petition for the writ of habeas corpus may, therefore,
Court shut down the effort of the wife, using the writ no longer be filed or a pending one should be
of habeas corpus as a bludgeon to compel her 86 dismissed.
year-old, but irresistibly rich husband to live with her.
The Supreme Court said, it is for the husband, who In Mangila vs Pangilinan. The Supreme Court enjoin
was shown to be of sound mind and capacitated, to trial courts to deny the writ of habeas corpus if the
decide whether to live with his wife or not, no court person claiming to be under illegal detention has
has the power, even if armed with a writ of habeas other remedies easily available to him. If a person, for
corpus to compel an unwilling husband to live with his instance, is detained by virtue of a warrant of arrest,
wife. The husband made it clear to the court that he which he claims to be invalid, the proper remedy for
was not being prevented from leaving the house of his him is not to file a petition for writ of habeas corpus,
own choice, and that he was free to see and meet with but to file a motion to quash the warrant of arrest or a
any person he wanted. There was simply no restraint motion for investigation of the case. The Supreme
on his Liberty as to warrant the granting of the reliefs Court went further to say that the writ of habeas
prayed for by the wife. I guess the husband just corpus is not in the nature of a writ of error. Meaning,
wanted to socially distance himself from his wife. it is not intended to correct errors of fact or errors of
law committed by the court. Neither can it take the
The Supreme Court added that the essential object place of an appeal, or certiorari.
and purpose of the writ of habeas corpus is to inquire
________________________________
Page 62 of 75
The question in a petition for habeas corpus is of the custody of her five (5) year old daughter by her
whether the proceedings that led to the issuance of estranged husband.
the assailed order of arrest are, for any reason, null
and void. The writ should be denied with the law or RULE 103: CHANGE OF NAME
the rules provides for other remedies and where
exceptional circumstances do not exist. Moreover, Why is there a need for a person desiring to change
the writ of habeas corpus should not be granted in his name to file a petition with the court? Why can't he
advance of a trial. The orderly course of a trial must just go to the civil registrar concern and request for a
be pursued and the usual remedies exhausted before change of name? The reason is that the law requires
resorting to the writ of habeas corpus. it.
In the case of Tuhan Militante which we have Article 376 of the Civil Code provides that no person
mentioned earlier, the Supreme Court explained that can change his name or surname without judicial
the service of summons on the respondent is not authority. Under this provision, no person by himself
required in a petition for habeas corpus. The writ of can change his name. He needs to be authorized by
habeas corpus place a somewhat similar role, a a court to change his name. And the only way to
summons in ordinary civil actions. When the writ of secure judicial authority is to file a petition with the
habeas corpus is served on the respondent. The proper court.
court acquires jurisdiction over his person.
Is there an instance when a person may change his
Let me repeat in a petition for habeas corpus name without judicial authority?
services, summons is not required for the court to
acquire jurisdiction over the person of the respondent. Yes, Republic Act 9048, which took effect on April
It is the service of the writ of habeas corpus that vests 2001 created an exception to the general rule
on the court jurisdiction over the person of the established by Article 376. Sec 1of RA 9048 provides
respondent. that no entry in a civil register shall be changed
without judicial order except change of first name or
Datukan Malang Salibo vs Warden is a case of nickname, which can be changed by the concerned
mistaken identity. Speaking through justice Leon, city or municipal city register. Under this law,
then the chairman of the aborted bar exams. The therefore, a person desiring to change his first name
Supreme Court said that when the person arrested or nickname need not file a petition with the court. He
and detained is not the person charged in the may do so in an administrative proceedings before
information and named in the warrant of arrest, he the Local Civil Registrar.
was in effect arrested without a warrant, and detain
without a lawful process. For all intents and purposes, From here on, we will confine our discussion to
therefore, he is entitled to the protection of the writ of petitions for change of surname under Rule 103.
habeas corpus.
What court exercises exclusive original jurisdiction
Let us review some instances when the Supreme over petitions for change of surname?
Court ruled that the aggrieved party has properly
availed himself or herself of the writ of habeas corpus. Since the subject of a petition for change of surname
is incapable of pecuniary estimation, the Regional
First, an accused to a serving sentence in excess of Trial Court exercises exclusive original jurisdiction
the proper penalty that may be imposed for the crime over it as provided by paragraph1, Sec 19 of BP 129
of which he was convicted. Second, an accused as amended.
serving sentence under a judgment rendered by a
court, which it turns out, had no jurisdiction over the What rule determines proper venue for petitions for
offense charged. Third, a mother who was deprived change of surname, Sec 1, R103 provides that the
petition for change of name shall be filed in the
________________________________
Page 63 of 75
Regional Trial Court of the province or city where the weeks in a newspaper of general circulation in the
petitioner resides. province where the court sits. The Solicitor General
or the city or provincial prosecutor, shall be given
You should relate this with Sec2, R103, which notice of the hearing, and directed to appear on behalf
requires by implication that the petitioner should have of the government.
been a bona fide resident of the province or city where
the petition is filed for at least three (3) years before To give us an idea of what grounds for a change of
the filing of the petition. This fact of residence for at name may be allowed. Let us look at some of the
least three (3) years is deemed so important that it is grounds for a change of name that the Supreme Court
required to be alleged in the petition as one of the considered proper and valid.
jurisdictional facts.
(1) when the name is ridiculous, dishonorable or
What name may be changed in a petition for change extremely difficult to write or pronounce, (2) when
of name under Rule 103? they change results as a legal consequence, as in
legitimation, or adoption; (3) when the change will
Only a person’s surname appearing in his certificate avoid confusion; (4) when one has continuously used
the birth. A person's name appearing in his baptismal and be known since childhood by a Filipino name, and
certificate, or school records, or the name by which was unaware of alien parentage; (5) a sincere desire
he is known in the community may not be the subject to adopt a Filipino name to erase signs of former
of a petition for change of name under Rule 103. Of alienates provided it is done in good faith, and it would
course, all it takes is an affidavit to change all these not prejudice anybody; and (6) when the surname
other names. causes embarrassment, and there is no showing that
the desired change of name was for a fraudulent
Who may file the petition for change of name? The purpose, or that the change of name would prejudice
person seeking to change his name, or any other public interest.
person on his behalf, may file the petition for change
of name. Let us briefly discuss some of the more significant
rulings on change of name that the Supreme Court
What matters should be alleged in the petition? The has promulgated in recent years.
following matters should be alleged, (1) that the
petitioner has been a bona fide resident of the In the case of In re petition for change of name of
province or city, where the petition is filed for at least Julian Lim Carulasang Wang, the petitioner, a minor
three (3) years prior to the filing of the petition; (1) the represented by his mother prayed that his middle
reason why the change of name is sought; (3) the name been removed from his Certificate of birth. The
name asked for and for all aliases, or nicknames by reason he gave was that he and his parents were
which the petitioner is known, must be set forth in the about to immigrate to Singapore, where people don't
title of the petition. carry middle names. He said he was asking for the
change of name to avoid being discriminated against
Upon the filing of a petition for change of name, what in Singapore. The Supreme Court shut down the
should the court do? If the court finds the petition to petition stating that for a change of name to be
be sufficient in form and substance, the court shall granted, the petitioner must show a proper and
issue an order fixing the date of the hearing of the reasonable cause or a compelling reason for the
petition, which shall not be within 30 days prior to an change of name. The petitioner must also convince
election, nor within four (4) months after the last the court that his continued use of his name will cause
publication of the order. him prejudice. The Supreme Court said the petitioner
failed on both counts the Supreme Court went further
In the same order, the court shall direct the petitioner to expound on the nature of change of name.
to cause the publication of the order before the
hearing at least once a week for three successive
________________________________
Page 64 of 75
The court said that the state has an interest in the Kagandahan had at birth, the very rare condition
name borne by individuals for purposes of called congenital adrenal hyperplasia, or inter
identification. For this reason, a change of name is a sexuality. Simply stated, she was born with the
privilege, and not a right before a person can be biological characteristics of both the male and female
authorized to change his name, given him, either in sexes. She was registered as female, and given the
his certificate, the birth or civil registry, he must show name Jennifer. As she grew older, however, miss
proper and reasonable cause, or any compelling Kagandahan male characteristics became dominant
reason, which may justify sets change. The question to the point that she developed muscles grew a beard
of proper and reasonable cause is left to the sound and acquired the feelings that a man has towards a
discretion of the court. woman. This was what prompted Miss Kagandahan
to file the petition. In granting Miss Kagandahan’s
To summarize, there are two requisites that a person petition, the Supreme Court said that a person with
must satisfy before he can legally change his name intersex anatomy deserves to be given the choice of
or his surname: (1) he must show a proper or what path to make with regards to his sexual
reasonable cause or a compelling reason to justify the development and maturation. In the absence of
change and (2) he must prove that he will be evidence that he is an incompetent or that classifying
prejudiced by the continued use of his true and official him as a male or female will harm other members of
name. society, his petition must be granted.
The case of Silverio vs Republic is one for the books.

After undergoing sex reassignment from male to RULE 108: CANCELLATION OR CORRECTION OF
female, petitioner prayed that his first name in his ENTRIES IN THE CIVIL REGISTRY
certificate the birth changed from Rommel to Mely
and his sex from male to female. By the way, you Why is it necessary for a person who wants to cancel
might be interested to know that one of the or correct an entry in the Civil Registry to institute a
procedures done in connection with the sex special proceeding in court? Why can’t he just go to
reassignment was called penectomy which is the the civil register concern and request for the desired
surgical removal of the penis. Going back to Mely the cancellation or correction of an entry? The answer is
Supreme Court acted as a total killjoy. It denied that the law requires it.
Mely’s petition.
Article 412 of the Civil Code provides that no entry in
In denying the petition, the Supreme Court has this to the civil register shall be changed or corrected without
say the statutes define who may file petitions for judicial order.
change of first names, and for correction or change of
entries in the Civil Registry, where they may be filed, Article 412 establishes a general rule. Is there an
what grounds may be invoked, what proof must be exception to this general rule? Yes, it is found in Sec
presented and what procedures shall be observed. 1 of RA 1948, which provides that no entry in a civil
register shall be changed or corrected without a
If Congress intends to confer on a person who has judicial order except for clerical or typographical
undergone sex reassignment, the privilege to change errors, which can be corrected or changed by the
his name, and sex to conform with this reassigned concerned city or municipal civil registrar.
sex, it has to pass a law. Since there is as of now, no
such law, the instant petition must be denied. Since clerical or typographical errors in the civil
register, may now be corrected only in an
Miss Kagandahan, it turned out was a lot luckier than administrative proceeding before the concerned local
Mr. Silverio. In the case of Republic vs Kagandahan, civil register. We have to know exactly when an error
the petitioner prayed that her gender be changed is merely typographical or clerical, and when is it
from female to male, and her first name be changed substantial?
from Jennifer to Jeff. The story was that Miss
________________________________
Page 65 of 75
Paragraph 3, Sec 2 of Republic 1948 defines clerical N.B. Take note of the difference between the venue
or typographical error as a mistake committed in the of a petition for change of name and the venue for a
performance of clerical work, such as writing, petition for correction of entry. While a petition for
copying, transcribing, or typing an entry in the civil change of name shall be filed in the Regional Trial
register, that is harmless and innocuous. A clerical or Court of the place where the petitioner resides. A
typographical error is one which is visible to the eyes, petition for correction of entry shall be filed in the
or obvious to the understanding, and can be easily Regional Trial Court of the place where the Civil
corrected by referring to other existing record or Registry concern is situated. The Civil Registry
records. On the other hand, any error that affects the concern refers to the Civil Registry, where the entry
nationality, age, status, or sex of a person is sought to be corrected is found.
considered substantial.
We have been talking about correcting entries in the
Guided by this distinction between clerical or type for civil register. Now, what acts, events, orders or
graphical errors, and substantial errors, we can now decrees are entered in the civil register under Sec 2
focus our discussion on correction or cancellation of of Rule 108 they are (1) births, (2) marriages, (3)
substantial errors in a special proceeding before the deaths (Why is it that death always follows marriage),
court. (4) legal separations, (5) judgments declaring
marriages void ab initio, (6) naturalization, (7) civil
But before we proceed, let us make sure we don't interdiction, etc.
commit the common error of mistaking a petition for
change of name and the rule 103. For a petition for Who may file a petition for correction of entry? Any
correction of an entry in the Civil Registry, which may person interested in the act, event, order or decree
be its may be a person's name under rule 108. When contained in the entry sought to be corrected may file
a person files a petition for change of name, there is the petition.
no error in his name to speak of. All he wants is that
his name appearing in the certificate to birth be Let us now discuss the kinds of proceedings that
replaced with another name. On the other hand, when may be conducted under Rule 108. Before the
a person files a petition for correction of letters, say enactment of Republic Act 9048 on April 2001, two
his name, entered in the Civil Registry, there is an (2) kinds of proceedings be conducted in a petition for
error in his name that he wants to be corrected. correction of entry. First is a summary proceeding and
the other one is adversary proceeding.
It is important for us to know one from the other
because its petition has its own specific rules. A summary proceeding is conducted when the errors
sought to be corrected are merely clerical, or
What court exercises exclusive original jurisdiction typographical such as misspelled name or misspelled
over petitions for correction of substantial errors in place of birth. On the other hand, adversary
entries in the Civil Registry. Since the subject of a proceeding is held when the errors sought to be
petition for correction of entry is incapable of corrected, are substantial ones, or those that affect a
pecuniary estimation, the Regional Trial Court person's nationality, marital status, legitimacy, age,
pursuant to paragraph 1 Sec 19 of BP 129, as sex or the like.
amended, exercises exclusive original jurisdiction
over it. Since clerical or typographical errors can no longer be
corrected in a judicial proceeding, but only in an
How do we determine the proper venue in petitions administrative proceeding before the local civil
for correction of entries? Sec 1 of Rule 108 tells us register. By virtue of Republic Act 1948. There is no
that a petition for correction of an entry shall be filed more room for summary proceedings under Rule 108.
in the Regional Trial Court of the city or province
where the Civil Registry concerned is situated. With only adversary proceedings left under Rule 108,
we can now discuss its requirements. A valid
________________________________
Page 66 of 75
adversary proceeding requires the concurrence of 2 son were never married. The Supreme Court
requisites: (1) the order of the court fixing the date of considered the correction prayed for to be substantial,
the hearing, must be published once a week for three which required a full blown adversity hearing. The
consecutive weeks in a newspaper of general Supreme Court said the father of the child should
circulation in the province where the court sits; and have been impleaded because his right may be
(2) all persons who have or claim any interest, which prejudiced by the correction.
would be affected by the court action shall be
impleaded as respondents. In the case of Republic vs. Kho, the petitioner asked
the court that the citizenship of her mother indicated
The first strike was it is mandated by Sec 4 while the in his birth certificate, the change from Filipino to
second requisite is mandated by Sec 3 of Rule 108. Chinese and the word married opposite the phrase,
As a rule, failure to implead, a person whose right or date the marriage of parents be deleted. The
interest may be prejudice by the intended correction petitioner claimed that her mother was Chinese and
is fatal to the validity of the adversary proceeding. his parents were never married. Since the correction
They are indispensable parties without whom the sought would affect the petitioner’s legitimacy, his
court cannot proceed with the trial and render a valid mother's citizenship and his parents’ marital status,
and binding judgment. The Supreme Court has, the Supreme Court ruled that the corrections sought
however, recognized certain exceptions. were all substantial. Such being the case the
Supreme Court said an adversary proceeding should
In Republic versus Uy, the Supreme Court held that have been held in pleading. Both parents are
the failure to implead and notify the affected or petitioner as indispensable parties
interested parties may be cured by the publication of
the notice of hearing. For this exception to apply, In Republic vs. Olaybar, a woman who without her
however, the Supreme Court imposed certain knowledge was made to appear to have married a
conditions, the petitioner must show that (1) he made man whom he did not know, was allowed by the court
earnest efforts to bring to the court all possible to correct the entries in the purported marriage
interested parties, or (2) the interested parties contract pertaining to the wife because it was done in
themselves initiated the corrections proceedings, or an adversary proceeding held in the trial court. She
(3) that the petitioner did not know that there were caused the publication of the notice of hearing as
interested parties or (4) when a party is inadvertently required by Sec 4, Rule 108 as well as impleaded not
excluded. only the Civil Registry concern, but also the man
whom she was supposed to have married.
In a case the Supreme Court described to us how an
adversary proceeding should be conducted. An
appropriate adversary proceeding, the Supreme RULE 107: ABSENTEES
Court explains, is one where the trial court conducts
a trial where all relevant facts are fully and properly I'm sure most of you, by experience and practice are
developed, where opposing parties are given the experts in this absentees.
opportunity to demolish its others case and where the
evidence are thoroughly weighted and considered. There are two (2) kinds of petition that may be filed
under Rule 107:
Let us review some recent cases on correction of (1) petition for the appointment of a provisional
entry and the rule 108. representative; and
(2) petition for the declaration of absence and the
In Eliosida vs Civil Register, the petitioner prayed that appointment of a trustee or administrator.
the surname of her son appearing in his birth
certificate be changed from that of his father to her When may a petition for the appointment of a
maiden name, and his status from legitimate to provisional representative be filed? It may be filed
illegitimate. She alleged that she and the father of her when a person has disappeared. He's worried about
________________________________
Page 67 of 75
being unknown for a period of not more than two on the known heirs, legatees, devices, creditors and
years, provided the snap left an agent or the power of other interested persons at least 10 days prior to the
his agent has expired. date of the hearing.
Who may file the petition? Any interested party,

relative of or friend may file the petition.
When shall the trusteeship or administration be
When may a petition for declaration of absence and deemed terminated?
the appointment of a trustee or administrator be filed? (1) Upon order of the court, when the absentee
It shall be filed when a person has disappeared from appears personally or by means of an agent;
his residence for more than two years, without any (2) when the death of the absentee is proved and his
news about him, or since the receipt of the last news testate or intestate heirs appear; and
about him. If the absentee has left a person in charge (3) when a third person appears showing by a proper
of the administration of his property, the petition may document, that he has acquired the absentees
be filed five years after his disappearance. property.
Who may file the petition for declaration of absence? Let us now discuss prerogative writs.
It may be filed by:
(1) the spouse present; What are these prerogative or peremptory writs?
(2) the instituted heirs;
(3) the legal heirs; and 1. Writ of Amparo
(4) by persons who have some right over the property 2. Writ of Habeas Data; and
of the absentee that are subordinate to the condition 3. Writ of Kalikasan
of the absent this death.
Prerogative means priviledge. If you have the
With what court should the petitions for appointment prerogative to do something that means you can do
of a representative and the declaration of absence be it, but others cannot.
filed? Since the subject of both petitions is incapable
of pecuniary estimation, but petitions shall be filed The word peremptory means something that cannot
with the Regional Trial Court of the province or city be challenged, refuse or questioned. In another
where the missing person was residing at the time he context peremptory means something that requires
disappeared. immediate obedience without question. A peremptory
command is an order that you cannot question, but
Who may be appointed the absentees representative must immediately follow.
trustee or administrator?
(1) the present spouse is the most preferred. But if Having learned the meaning of the words, prerogative
there is no legal separation, if for some reason, the and peremptory, which are used to characterize the
present spouse cannot be appointed, (2) any three writs, we are about to discuss, I'm sure you've
competent person may be appointed by the court. got an inkling of the real nature of this three writs.
By the way, the two other prerogative writs are the
What should the court do upon the filing of a petition writ of habeas corpus and the writ of certiorari.
for the appointment of a representative or a petition
for the declaration of absence? The court shall issue Writ of Amparo
an order fixing the date of the hearing and directing
the petitioner to cause the publication of the order Let's start with a writ of Amparo. Like so many things,
prior to the date of the hearing once a week for three we borrowed the concept of Amparo from Mexico but
(3) consecutive weeks in a newspaper of general don't jump into conclusion. Amparo is not the name of
circulation in the province or city where the absentee a Latina. It's a Spanish word, which literally means
resides. Copies of the order shall likewise be served protection. The Supreme Court introduced the Writ of
________________________________
Page 68 of 75
Amparo in the Philippines when it promulgated
Administrative Matter 07-9-12-SC on September 25, What rule determines proper venue if the petition is
2007. Two months earlier, the former Chief Justice filed with the Regional Trial Court? The petition shall
Renato Puno, and former Associate Adolfo Ascunia be filed in the Regional Trial Court of the place where
officially announced the adoption of the writ of the threat, acts or omission was committed or any of
Amparo on the occasion of the national summit on its elements occurred.
extrajudicial killings and enforced disappearances
held at the Manila Hotel. So much for this trivia. Please take note that when it comes to venue, a
petition for writ of Amparo partakes of the nature of a
When may a person file a petition for writ of Amparo? criminal action. During the pendency of the petition for
A person may apply for the Writ of Amparo if his right writ of Amparo the court may upon motion grant some
to life, liberty, and security is violated or threatened interim reliefs such as:
with violation by an unlawful act or omission of a (1) Temporary Protection Order;
public official or employee or of a private individual or (2) Inspection order;
entity. The writs may also be applied for in cases of (3) Production order; and
extralegal killings and enforced disappearances. (4) Witness protection order.
Who may file the petition for Writ of Amparo? By what amount or quantum of evidence shall the
parties in a petition for Writ of Amparo prove their
1. If he is able to, the aggrieved party himself may file respective factual allegations? The rule on Amparo
the petition requires both parties to prove their respective factual
2. If we can’t as when he is the victim of extralegal allegations by substantial evidence.
killing, or enforced disappearance. Some other
specified persons or entities may file in the order You will recall that substantial evidence is the
given quantum of evidence required in administrative
cases, it is defined as such amount of relevant
A. Any member of his immediate family - his spouse, evidence which a reasonable mind might accept as
children and his parents. adequate to support a conclusion. It is more than a
B. If the aggrieved party or the members of his mere scintilla of evidence. The standard of substantial
immediate family are unable to file the petition, any of evidence is satisfied when there is a reasonable
his ascendance descendants or collateral relatives grounds to believe based on the evidence submitted
within the fourth civil degree of consanguinity or that a particular fact in issue is true. Substantial
affinity may file it. evidence need not be overwhelming or preponderant,
C. If not one of the persons mentioned earlier is able as is required in ordinary civil cases, or evidence
to file the petition, then any concerned citizen, beyond reasonable doubt, as is required in criminal
organization, association or institution may file the cases, but the evidence must be enough for a
petition. reasonable mind to support a conclusion.
Where may the petition for Writ of Amparo be filed? By way of defense, the rule on Amparo fixes a
The petition may be filed with the Regional Trial Court standard of diligence that a respondent must observe
or any Regional Trial Court judge. It may also be filed to escape liability. The standard diligence required
with the Sandiganbayan, the Court of Appeals or with depends on who the respondent is. A respondent who
a Supreme Court, or any justice of this Courts. A writ is a private individual or entity must prove that he has
issued by any of these courts, including the Regional observed ordinary diligence as required by law.
Trial Court is enforceable anywhere in the
Philippines. This is different from a Writ of Habeas A respondent who is a public official or employee
Corpus, which when issued by the Regional Trial must prove that in the performance of his duty, he has
Court is enforceable only within the courts judicial observed extra ordinary diligence as required by law.
region. A respondent public official or employee cannot
________________________________
Page 69 of 75
invoke the presumption that the official duty has been individuals acting with the direct or indirect
regularly performed. acquiescence of the government, followed by a
refusal of government authorities to disclose the fate
To what court and by what mode of appeal is a or whereabouts of the person concerned or a refusal
judgment in a petition for Writ of Amparo appealable? to acknowledge the deprivation of liberty, which
The judgment of the courts having original jurisdiction places sets persons outside the protection of law.
over a petition for writ of Amparo is appealable
directly to the Supreme Court by petition for review on Burgos vs Esperon, the Supreme Court define the
certiorari under Rule 45 within five (5) working days limits to the role of the court in a petition for Amparo.
from notice of judgment. They note the appeal may The court explained that the role of the court in a Writ
raise questions of fact or questions of law or both. of Amparo proceedings is merely (1) to determine
This is of course, an exception to the rule that in whether an extra-legal killing or enforced
petitions for review on certiorari only questions of law disappearance has taken place; (2) To determine
may be raised. who is responsible or accountable; and (3) to define
and impose the appropriate remedies to address the
Let us discuss some cases where the Supreme Court disappearance.
laid down important doctrines on the writ of Amparo.
It does not determine guilt, nor pinpoint criminal
Tapus vs Del Rosario, the Supreme Court speaking culpability for the killing or disappearance. The
through Justice Brion said that the writ of Amparo is Amparo court may only determine responsibility, or at
intended to respond to the extraordinary rise in the least accountability for the extra-legal killing or
number of killings and enforced disappearances as enforced disappearance for the purpose of imposing
well as to address violations of or threats to the rights the appropriate remedies to address it. Having
to life, liberty, or security. It is an extra ordinary and determined the person or persons responsible for the
independent remedy beyond those remedies that are killing or disappearance, the Amparo court may
already available under existing rules. Seen another recommend to the proper authorities the filing of
way, the writ of Amparo is a remedy intended to criminal cases against those found to be criminally
supplement those who already existing under the liable.
rules.
The Supreme Court added that while the rule on
The writ of Amparo was never intended to protect Amparo accords the court a wide latitude in crafting
concerns that are purely property or commercial. remedies to address an enforced disappearance, it
Neither is it a lead that will issue on vague and cannot without violating the nature of the writ of
uncertain grounds. Amparo as a summary remedy that provides rapid
judicial relief grant remedies that would complicate
Castillo vs Cruz, the SC declared that the Writ of and prolong rather than expedite the investigations
Amparo is intended to address the intractable already ongoing.
problem of extra-legal killings and enforced
disappearances. Its coverage in its present form is Roxas versus GMA, the Supreme Court expounded
confined to these two instances, or to threats thereof. on what it referred to as evidentiary difficulties in
Amparo proceedings. The court observed that ironic
The Supreme Court companion by defining extra- as it seems, part and parcel of the reason why a
legal killings and enforced disappearances. petitioner for a Writ of Amparo may find difficulty in
According to the Supreme Court, extra-legal killings producing substantial evidence proving her
are those committed without due process of law that allegations of government complicity in her abduction
is, without legal safeguards or judicial proceedings. and torture may be attributed to the awkward situation
On the other hand, there is enforced disappearance if we're in the very police or military officers alleged to
a person is arrested, detained or abducted by a be involved in an enforced disappearance or
government official or organized groups, or private
________________________________
Page 70 of 75
extralegal killing are at the same time, the very ones A. A person is arrested, detained, abducted or in any
tasks by law to investigate the matter. way deprived of his liberty;
B. the Act was carried out by or with the authorization,
This is a unique characteristic of these proceedings, support or acquiescence of the government or a
and is the main source of the evidentiary difficulties political organization;
faced by petitioners in Amparo cases to somehow C. it is followed by the state or political organizations
offset evidentiary difficulties, the court said the refusal to acknowledge or give information on the fate
Amparo rule plays a potent safeguard which is to or whereabouts of the person subject of the Amparo
require the respondent who is a public official or petition; and
employee to prove that no less than extraordinary D. that the intention for such refusal is to remove the
diligence, as required by applicable laws, rules and person from the protection of the law for a prolonged
regulations is observed in the performance of duty. period of time.
Thus, unless and until any of the public respondents
is able to show to the satisfaction of the Amparo court, None of these elements is present in the mother's
that extraordinary diligence has been observed in loss of the custody of a child.
their investigations, they cannot shed the allegations
of responsibility for the enforced disappearance and Canlas vs NAPICO Homeowners Association, a
extralegal killing despite the prevailing scarcity of group of persons whose houses were about to be
evidence to that effect. demolished under a final order which has become
executory, which came all the way from the Supreme
Garam vs Segi. Feeling public dishonor and the ire of Court filed a petition for Amparo to prevent the
her parents, an unwed mother delivered her baby in demolition.
secret, and then gave it to the care and official
custody of the DSWD. A couple of years later, when In denying their petition, the Supreme Court said the
things turn for the better for the mother, she changed demolition of a dwelling by virtue of a final judgment
her mind and decided to get back her child. When she of the court, which in this case was affirm with finality
demanded that her child be given back to her the by the Supreme Court is not included among the
DSWD refused saying that the child is about to be enumeration of rights as stated in Sec 1 of the rule on
adopted by a well to do couples. The mother filed a Amparo for which the remedy of a Writ of Amparo is
petition for Amparo to recover custody of her baby. made available.
The Supreme Court rebuffed the mother's misguided
effort. The court explained that the privilege of the writ Their claim to their dwelling assuming they still have
of Amparo is a remedy available to victims of any, despite the final executory judgment adverse to
extrajudicial killings and enforced disappearances or them does not constitute right to life, liberty and
threats of a similar nature regardless of whether the security. There is therefore no legal basis for the
perpetrator of the unlawful act or omission is a public issuance of the writ of Amparo.
official, or employee or a private individual.
It is envisioned basically to protect and guarantee the PREROGATIVE WRITS:

right to life, liberty and security of persons, free from
fears and threats that vitiate the quality of life. Clearly, WRIT OF HABEAS DATA
they're being not enforced disappearance, the writ of
Amparo is not the proper remedy for a mother once The Supreme Court brought the Writ of Habeas Data
to recover the custody of her biological child from the into existence when it promulgated AM-08-1-16-SC
DSWD, to which she had voluntarily committed the on January 22, 2008.
child.
Sec 3 (g) of RA 9851, an enforced disappearance The writ of habeas data is a tool meant to protect a
occurs when the following elements exist: person's image, privacy, honor information, and
freedom of information. It is intended to provide a
________________________________
Page 71 of 75
forum to enforce one's right to truth and to information When a criminal action is filed after the filing of a
privacy. Thus safeguarding the constitutional petition for writ of habeas data, the letter shall be
guarantees of a person's right to life, liberty and consolidated with a criminal action. When a criminal
security against the abuse in this age of information action and a separate civil action are filed after the
technology. Like the writ of Amparo Habeas Data was filing of the petition for a writ of habeas data, the
conceived as a response given the lack of effective petition shall be consolidated with a criminal action
and available remedies to address the extraordinary despite the consolidation, however, the procedure
rise in the number of killings and enforced under the rule on habeas data shall continue to
disappearances. Its intent is to address violations of govern in the disposition of the reliefs in the petition.
or threats to the rights to life, liberty or security as a
remedy, independently from those provided under What is the effect of the filing of the criminal action to
existing rules. the filing of a petition for writ of habeas data? When a
criminal action has been commenced, no separate
When may a person file a petition for habeas data? petition for the writ based on the same act remission
He may file it when his right to privacy in life, liberty or shall be filed. The relief under the writ may, by motion,
security is violated or threatened by an unlawful act, be granted to an aggrieved party in the criminal case.
or omission of a public official or employee or of a The procedure under the rule on habeas data shall
private individual or entity engaged in the gathering, govern the disposition of the reliefs available under
collecting or storing of data or information regarding the route of habeas data.
him, his family, home and correspondence.
To what court and by what mode of appeal is a
Who may file the petition for writ of habeas data? judgment in a petition for writ of habeas data rendered
a. If he is able to, the aggrieved party himself may file by any of the courts having original jurisdiction over it
the petition appealable? The appeals shall be taken directly to the
b. If he can’t because he is the victim of extralegal Supreme Court, by way of rule 45 within five (5)
killing, or enforced disappearance, the petition may working days from notice of the judgment. The appeal
be filed by any member of his immediate family, he may raise both questions of fact, and law.
spouse, children, and his parents; or
c. If none of those mentioned can file the petition, any Let us discuss some recent cases on the writ of
of his ascendance descendant or collateral relative of habeas data.
the aggrieved party within the fourth civil degree of
consanguinity or affinity in default of those Vivares versus St. Therese College, a group of
mentioned in the preceding paragraph. scantily clad female students had themselves
photographed and naturally, they posted the photos
With what court may the petition for habeas data be in the internet with the private setting of for a friend's
filed? It may be filed with the Regional Trial Court, only. A schoolmate was able to access the photos
where the petitioner or respondent resides or where from the internet, which he passed on to the school
the data or information is gathered, collected or authorities, who tried to impose sanctions against the
stored at the option of the petitioner. When the action female students. Feeling aggrieved and exposed, the
concerns public data files of government offices, the female students file a petition for writ of habeas data
petition shall be filed with the Supreme Court, the against the school. The Supreme Court denied the
Court of Appeals or the Sandiganbayan. petition saying the writ of habeas data is aimed at
protecting an individual's right to informational
The filing of a petition for writ of habeas data shall not privacy. It is a procedure designed to safeguard
preclude the filing of separate criminal civil or individual freedom from abuse in the information age.
administrative actions based on the same act or The writ, however, will not issue on the basis merely
omission of the respondent. of an alleged unauthorized access to information
about the person. Availment of the writs requires the
existence of a nexus between the right to privacy on
________________________________
Page 72 of 75
the one hand, and the right to life, liberty or security image, privacy, honor, information and freedom of
on the other. Without an actionable entitlement to the information of an individual. It is meant to provide a
right to informational privacy, habeas data petition will forum to enforce once right to the truth and to
not prosper. informational privacy. Thus, safeguarding the
constitutional guarantees of a person's right to life,
Since there was no showing that the female students liberty and security against abuse in this age of
use a full proof privacy setting when they posted their information technology.
photos on Facebook, they did not have the right to
information our privacy, which may be protected from The writ of habeas data will not issue to protect purely
violation or threatened violation by the writs of the property or commercial concerns, nor when the
data. grounds invoke are vague or doubtful.
The Supreme Court gave a little sermon for Employment is a property right under the due process
compulsive internet users. It is incumbent upon clause of the Constitution. If what prompted the
internet users to exercise due diligence in their own employee to file the petition for habeas data was her
line dealings and activities and must not be negligent concerns respecting the terms and conditions of
in protecting their rights. Equity serves the vigilant, employment, the same should be dismissed.
demanding relief from the courts requires that the Jurisdiction over such concerns is lodged by law with
claimants themselves take utmost care in the LRC and the labor Arbiter's not the Regional Trial
safeguarding a right, which they alleged to have been Court.
violated. These are indispensable.
Lee versus Ilagan. A spurned woman was able to
The respondent school argued that it should not have extract from the camera of her former lover, a police
been impeded because it was not engaged in officer, the digital memory, containing a video footage
gathering collecting or storing data or information. showing him having sex with another woman. Feeling
The Supreme Court rejected the school's argument. that the video footage may somehow find its way to
The court explained that the phrase engaged in his superior officers, or be uploaded in the internet for
gathering, collecting or storing data or information public consumption, the policeman filed against the
does not necessarily mean that the activity is done in woman a petition for the writ of habeas data. The
pursuit of a business. It is enough that the respondent Supreme Court denied the petition saying that for the
is shown to have gathered, collected or restored data writ to be granted, the petitioner must show the
or information about the aggrieved party or his or her connection between his privacy interest and any
family. The respondent will not be in the business of violation of his right to life, liberty or security. The
gathering, collecting or storing data. Whether the petitioner must also prove that respondent has
activity is done with regularity, as when one pursues committed some overt acts towards the end of
a business, or just a personal endeavor for any other violating his right to privacy in life, liberty or security.
reason is immaterial, and such will not prevent them The petitioner failed to prove any of such overt acts.
from getting to said person or entity.
Meralco versus Lim, an employee was transferred to WRIT OF KALIKASAN

another station by her employee, after an anonymous
letter was circulated in her office, denouncing her for Let us now discuss the writ of kalikasan. The rule on
lack of loyalty to the company. The company claimed the writ of kalikasan is Rule 7 of the Rules of
that the transfer was for the protection of the Procedure for Environmental cases, also known as
employee, but it refused to investigate the truth of the Administrative Matter 09-6-8-SC.
allegation in the letter and who circulated it. The
employee filed a petition for habeas data against her When may a petition for Writ of Kalikasan be filed? It
employer. In denying the petition, the Supreme Court may be filed when the constitutional rights of persons
said the habeas data rule is designed to protect the to a balanced and healthful ecology is violated or
________________________________
Page 73 of 75
threatened with violation by an unlawful act or (ECC) issued to the power plant builder. Respondent
omission of a public official or employee or private Paje, on their part, questioned the propriety of raising
individual or entity involving environmental damage of the issue of the alleged defect in the ECC in a petition
such magnitude as to prejudice the life, health or for writ of kalikasan without the petitioners having first
property of inhabitants in 2 or more cities or exhausted all administrative remedies. Speaking
provinces. through Associate Justice Del Castillo the Supreme
Court has this to say, in general, the proper procedure
Who may file the petition for writ of kalikasan? The to question a defect in an ECC is to follow the appeal
petition may be filed by a natural or juridical person, process in accordance with the applicable law and
and they be authorized by law, people's organization, rules. After complying with the proper administrative
nongovernmental organization, or any public interest appeal process, the course may then be made to the
group accredited by or registered with any courts, in accordance with the doctrine of exhaustion
government agency, on behalf of the persons whose of administrative remedies. In exceptional cases,
constitutional right to a balance and healthful ecology however, the rate of kalikasan may be availed of to
is violated or threatened with violation. challenge the defects in the ECC provide the two
requisites concur. First, the defects are causally link
With what court or courts made a petition for writ of or reasonably connected to an environmental
kalikasan be filed? The petition shall be filed with the damage of the nature and magnitude contemplated
Supreme Court or with any of the stations of the Court under the rules on writs of kalikasan; and second, the
of Appeals. The filing of a petition for the issuance of case does not violate or falls under an exception to
the writ of kalikasan shall not preclude the filing of the doctrine of exhaustion of administrative remedies
separate civil, criminal or administrative actions or primary jurisdiction. Given the extreme urgency of
based on the same act or omission of the resolving the issue of the alleged defect in the ECC
respondents. due to the looming power crisis, the instant case may
be considered as an exception to the doctrine of
During the pendency of the proceeding, a party may, exhaustion of administrative remedies.
upon a verified motion be granted, discovery
measures such as ocular inspection, and production, The rules of procedure may be suspended in order to
or inspection of documents or things. address issues which ordinarily would not be proper
in the writ of kalikasan case. The issue of the alleged
To what court and by what mode of appeal is a defect in the ECC may therefore, be resolved in the
judgment rendered by the Court of Appeals in a instant writ of kalikasan case.
petition for writ of kalikasan appealable? The
judgment is appealable to the Supreme Court by Dolo vs Paje, the Supreme Court merely underline
petition for review on certiorari and the rule 45 within the concept of Continuing Mandamus which is
15 days from notice of judgment.Aside from questions defined as a writ issued by a court in an
of law, the appeal may raise questions of fact. environmental case directing any agency or
instrumentality of the government or officer thereof to
Paje vs Casino. This case involved the environmental perform an act or series of acts decreed by final
concerns raised by a group of local and national judgment, which shall remain effective until the
legislators regarding the setting up by a partly judgment is finally satisfied.
government owned company of a coal fire power
plant in sitio nagla torre mount Redondo Subic Bay Arigo vs Swift pertains to the plight of USS Guardian,
Freeport zone. The group of legislators led by then a US military ship, which ran aground at a shoal of the
congressman Theodoro Casino filed with the Court of Tubbataha Reefs, about 80 miles off the coast of
Appeals a petition for writ of kalikasan against the Palawan. The US government immediately
then Secretary of Environment and Natural apologized for the incident and promised to pay
Resources Ramon Paje and others questioning the whatever damage was caused to the reef. It then
validity of the environmental compliance certificate proceeded to conduct salvage operations until the
________________________________
Page 74 of 75
last screw of the grounded ship was removed from petitioners in a petition for a writ of kalikasan. The civil
the coral reef. Wanting to attract some publicity, a case and criminal complaint filed by petitioners
group of environmental zealots who impleaded against the respondents are the proper proceedings
minors and generations yet unborn, a scope to ventilate and determine the individualized ability of
petitioners, filed a petition for writ of kalikasan against respondents for the dire environmental damage
the commander of the ship and more than a dozen caused by the dumping of petroleum products coming
US and Philippine Officials, including the President from the leak in the oil pipelines in Bangkal, Makati
Noynoy Aquino. Among others, the petitioners prayed City.
that respondent, US officials be ordered to cease and
desist from the salvaged operations, and that the Do marine mammals have locus standi? In other
local officials be ordered to perform all remedial words, May, the whales, dolphins and porpoises
measures to rehabilitate and prevent further damage acting by themselves bring an action in court? The
to the reefs. Supreme Court answer this intriguing question and
the case of Resident marine mammals versus Reyes.
In its decision, dated September 16 2014, the Even before the rules of procedure for environmental
Supreme Court declared that the petition has become cases became effective, the Supreme Court had
moot in the sense that the salvage operations sought already taken a permissive position on the issue of
to be enjoin, or restrain had already been locus standi in environmental cases. In Oposa, the
accomplished when the petitioners sought the Supreme Court allowed the suit to be brought in the
recourse from the court. But in so far as the directive name of generations yet unborn based on the
to the Philippine respondents to protect and concept of intergenerational responsibility, in so far as
rehabilitate the coral reef structure and marine habitat the right to a balance and helpful ecology is
adversely affected by the grounding incident, are concerned.
concerned, petitioners are entitled to those reliefs,
notwithstanding the completion of the removal of the Furthermore, the Supreme Court said that the right to
USS Guardian from the coral reef. a balance and healthful ecology a right that does not
even need to be stated in the Constitution, as it is
However, the court was mindful of the fact that the US assumed to exist from the inception of humankind
and Philippine Government both expressed carries with it the correlative duty to refrain from
readiness to negotiate and discuss the matter of impairing the environment.
compensation for the damage caused by the USS
guardian. The US Embassy has also declared it is In light of the foregoing, the need to give the resident
closely coordinating with the local scientists and marine mammals legal standing has been eliminated
experts in assessing the extent of the damage and by the rules. The rules on environmental cases allow
appropriate methods of rehabilitation. Exploring any Filipino citizen as a steward of nature, to bring a
avenues for settlement of environmental cases is not suit to enforce our environmental laws. It is worth
prescribed by the rules. It is in fact encouraged. noting that, in the instance case, the stewards are
joined as real parties in the petition and not just as
West Tower condominium vs Philippine Industrial representatives of the marine mammals. The
Corporation, is whether or not the court in a petition stewards Ramos and Osorio having shown in their
for writ of kalikasan may determine the civil liability of petition that there may be possible violations of laws
the respondents and award damages to the concerning the habitat of the resident marine
petitioners. In resolving the issue. The Supreme mammals are therefore declared to possess the legal
Court said it will not rule on whether the individual standing to file this petition.
directors and officers of the respondent corporations
are liable or not. The court is mindful of Paragraph E
Sec 15 Rule 7 of the Rules of Procedure for
Environmental Cases, which explicitly prohibits the
court from granting award of damages to individual
________________________________
Page 75 of 75

Consolidate Remedial Law Review 2 Transcribed Notes: Provisional Remedies To Special Proceedings

Transféré par

Informations du document

Titre original

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Consolidate Remedial Law Review 2 Transcribed Notes: Provisional Remedies To Special Proceedings

Transféré par

Droits d'auteur :

Formats disponibles

CONSOLIDATE REMEDIAL LAW REVIEW 2

TRANSCRIBED NOTES: PROVISIONAL How to secure the judgment?

a) In an action for the recovery of a specified

EXP: Instances a writ of preliminary attachment be

1) When the defendant is a resident of the What is writ of preliminary of injunction?

When may the court appoint a receiver? (R59, Sec

RULE 62: INTERPLEADER - The relief sought by the person filing a

Let us now discuss certain doctrines on Mandamus

So what doctrines were established in this case of RULE 67: EXPRORIATION

Who are the alter egos? 1) WON expropriation is proper or taking is

May PED be delegated by the government to other In reference to Petitioner:

Is there a law? 2) Determination of Just Compensation

When to file? In Forcible Entry – FISST

Is demand to vacate required? What kind of action is Unlawful Detainer?

What kind of action is forcible entry? Why real action?

When does at became unlawful? Cross claim is always compulsory

RULE 71: CONTEMPT (d) Any improper conduct tending, directly or

So, what would be the basis of jurisdiction? Since we

- Not more than 6 months from the entry of the

1. Legal Guardians - by operation of law

Under the general powers of a guardian, may a What is implied trust?

The case of Silverio vs Republic is one for the books.

Who may file the petition? Any interested party,

It is envisioned basically to protect and guarantee the PREROGATIVE WRITS:

Meralco versus Lim, an employee was transferred to WRIT OF KALIKASAN

Vous aimerez peut-être aussi