Provisional Remedies Bar Review Guide 2017 (3)

PROVISIONAL REMEDIES AND SPECIAL CIVIL ACTIONS Bar Review Guide 2017 Justice Magdangal M. de Leon

Rules 57-71 R. Provisional Remedies PROVISIONAL REMEDIES UNDER THE RULES OF COURT: a. Attachment (Rule 57) b. Preliminary Injunction (Rule 58) c. Receivership (Rule 59) d. Replevin or delivery of private property (Rule 60) e. Support Pendente Lite (Rule 61) f. Criminal Cases (Rule 127 – in connection with the civil action deemed instituted with the criminal action) OTHER PROVISIONAL REMEDIES a. Temporary Protection Order [TPO] (RA 9262, Anti-Violence Against Women and their Children; Rule on the Writ of Amparo) b. Witness Protection Order [WPO] (RA 6981; Rule on the Writ of Amparo) c. Inspection Order [IO] (AM 07-9-12, Rule on the Writ of Amparo) d. Production Order [PO] (AM 07-9-12, Rule on the Writ of Amparo) e. Administration of Common Property (AM 02-11-12, Rule on Provisional Orders) f. Inspection, Examination of Accounts and Freeze Order (RA 9372, Human Security Act) g. Freeze Order under RA 9160 as amended by RA 9194 (Anti-Money Laundering Act) h. Seizure and Sequestration of Accounts and Assets (RA 9372, Human Security Act) i. Restriction of Travel (RA 9372, Human Security Act) j. Stay Order ( AM 00-8-10, Rules of Procedure on Corporate Rehabilitation) k. Hold Departure Order (Criminal cases under Circular 39-97 and Family cases under AM 0211-12) l. Temporary visitation rights (AM 02-11-12, Rule on Provisional Orders ) m. Guardian Ad Litem of Child (AM 02-1-19, Rule on Involuntary Commitment of Children) n. Temporary Custody of Child (AM 02-1-19 and AM 02-11-12) o. Spousal and Child Support (AM 02-11-12, Rule on Provisional Orders) COMMON REQUIREMENTS a. Affidavits are required to support the issuance of these remedies, except injunction and receivership. b. Bond is also required to answer for damages by reason of the improvident issuance of the writ. Exceptions: temporary restraining order, support pendente lite, inspection of accounts and

freeze order (Human Security Act), inspection and production orders (rule on the writ of amparo), seizure and sequestration of accounts and assets (Human Security Act), restriction of travel (Human Security Act) and hold departure order (Circular 39-97 and AM 02-11-12). Recovery of damages from the bond is governed by Rule 57, Section 20.

1. Nature of provisional remedies Provisional remedies are temporary, auxiliary and ancillary remedies available to a litigant for the protection of his rights while the main action is pending. They are writs and processes which are not main actions and they presuppose the existence of a main action. They are provisional because they constitute temporary measures availed of during the pendency of the action. They are ancillary because they are mere incidents in and are dependent upon the result of the main action. (Regalado 2008 ed.) When to apply and in what principal actions available: 1. Preliminary Attachment (Rule 57) – at the COMMENCEMENT of the action or at any time before entry of judgment a. Recovery of a liquidated sum of money b. Recovery of possession of property unjustly or fraudulently taken, detained or converted 2. Preliminary Injunction (Rule 58) - at ANY STAGE of the action prior to the judgment or final order a Action for injunction, whether or not coupled with other prayers b Forcible entry and unlawful detainer 3. Receivership (Rule 59) – at ANY STAGE of the proceedings and even up to the stage after the judgment has become final and executory as a means of enforcing the judgment a. Receivership action b. Real action involving title to or possession of realty c. Foreclosure of mortgage d. Dissolution of corporation 4. Replevin (Rule 60) - at the COMMENCEMENT of the action OR at ANY TIME before answer a. Recovery of possession of personal property b. Recovery of personal property subject of chattel mortgage as a preliminary step to extrajudicial foreclosure 5. Support Pendente Lite (Rule 61) – at the COMMENCEMENT of the proper action or proceeding, or at ANY TIME prior to the judgment or final order a. Support, whether as the main case or as one of several causes of action. b. Criminal actions where the civil liability includes support of the offspring as a consequence of the crime ( rape, seduction).

2. Jurisdiction over provisional remedies Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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The court which grants or issues a provisional remedy is the court which has jurisdiction over the main action. Even a municipal trial court may grant a provisonal remedy in action pending with it and within its jurisdiction. Exs. writ of preliminary mandatory action, ancillary to the main action of ejectment (Rule 70, Sec. 15). But where the main action is for support, provisional remedy of support pendente lite may not be granted by a municipal trial court because the main action is within the jurisdiction of the family court.

3. Preliminary Attachment Preliminary attachment defined a. a provisional remedy b. issued upon order of the court where the action is pending, c. to be levied upon the property of the defendant therein, d. the same to be held thereafter by the sheriff e. as SECURITY for the satisfaction of a judgment in said action f. in favor of the attaching creditor against the defendant. (Virata vs. Aquino, September 10, 1973) NOTES: DEFINITION AND NATURE 1. The provisional remedy of preliminary attachment is harsh and rigorous for it exposes the debtor to humiliation and annoyance. The rules governing its issuance are, therefore, strictly construed against the applicant (Wee vs. Tankiansee, G.R. No.171124, February 13, 2008). If the requisites for its grant are not shown to be all present, the court shall refrain from issuing it, for, otherwise, the court which issues it acts in excess of its jurisdiction (See Philippine Bank of Communications v. Court of Appeals, G.R. No. 115678, February 23, 2001, 352 SCRA 616). Likewise, the writ should not be abused to cause unnecessary prejudice. If it is wrongfully issued on the basis of false or insufficient allegations, it should at once be corrected (Wee vs. Tankiansee, supra, citing Benitez v. Intermediate Appellate Court, No. L-71535, September 15, 1987, 154 SCRA 41, 46). 2. Attachment is a proceeding in rem. It is against the particular property, enforceable against the whole world. The attaching creditor acquires a specific lien on the attached property which ripens into a judgment against the res when the order of sale is made. It in effect means that the property attached is an indebted thing and a virtual condemnation of it to pay the owner's debt (Biñan Steel Corporation vs. Court of Appeals, October 15, 2002, 391 SCRA 90). Attachment is in the nature of a proceeding quasi in rem although it is sometimes referred to as an action in rem. Nevertheless, the legal effects are identical because in both cases, jurisdiction over the person of the defendant is not required as long as the court acquires jurisdiction over the res.(Biaco vs. Countryside Rural Bank, 515 SCRA 106) . th

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Ancillary to principal proceeding The attachment must fail if the suit itself cannot be maintained as the purpose of the writ can no longer be satisfied. When the main action is appealed the attachment is also considered appealed, It cannot be the subject of an independent action (Olib vs. Pastoral, 188 SCRA 692 [1990]). Writ of attachment may be issued ex parte An order of attachment may be issued either ex parte or upon notice and hearing by the court in which the action is pending, or by the Court of Appeals or Supreme Court (Rule 57, Sec. 2). It may be issued ex parte because to require notice to the adverse party would defeat the purpose of attachment and enable the adverse party to abscond or dispose of the property before the issuance of the writ (Mindanao Savings and Loan Association, Inc. vs. CA, 172 SCRA 480).  Writ of preliminary attachment may be issued EX PARTE. Several writs may be issued at the same time addressed to the sheriffs of the courts of different judicial regions. (Rule 57, Sec. 2)

a. Grounds for issuance of writ of attachment

(Rule 57, Sec. 1) - DERFCN

1. Depart - Action (a) for RECOVERY of a specified amount of MONEY OR DAMAGES, other than moral and exemplary, (b) on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict (c) against a party who is ABOUT TO DEPART from the Philippines with INTENT TO DEFRAUD his creditors; 2. Embezzlement - Action (a) for MONEY OR PROPERTY embezzled or fraudulently misapplied or converted to his own use (b) by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; 3. Recover possession - Action (a) to RECOVER POSSESSION OF PROPERTY unjustly or fraudulently taken, detained or converted, (b) when the property, or any part thereof, has been CONCEALED, REMOVED, or DISPOSED of to prevent its being found or taken by the applicant or an authorized person; 4. Fraud - Action against a party (a) who has been guilty of a FRAUD in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof; 5. Defraud creditors - Action against a party (a) who has REMOVED OR DISPOSED of his property, or is about to do so, (b) with INTENT TO DEFRAUD his CREDITORS; or Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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6. Non-resident - Action against a party (a) who DOES NOT RESIDE AND IS NOT FOUND in the Philippines, or (b) on whom SUMMONS may be SERVED BY PUBLICATION. In short: 1. Action for recovery of money or damages 2. Action involving embezzled money or property 3. Action to recover property fraudulently taken 4. Action involving fraud in contracting or performing obligation 5. Action against party who has removed or disposed of property to defraud creditors 6. Action against non-resident defendant who is not found in the Philippines Sufficiency of grounds to sustain an attachment: fraudulent intent cannot be inferred from a debtor’s inability to pay or comply with obligations We find an absence of factual allegations as to how the fraud alleged by petitioner was committed. As correctly held by respondent Court of Appeals, such fraudulent intent not to honor the admitted obligation cannot be inferred from the debtor’s inability to pay or to comply with the obligations (PCL Industries Manufacturing Corporation vs. CA, G.R. No. 147970, March 31, 2006). The particulars of such circumstances necessarily include the time, persons, places and specific acts of fraud committed. An affidavit which does not contain concrete and specific grounds is inadequate to sustain the issuance of such writ. In fact, mere general averments render the writ defective and the court that ordered its issuance acted with grave abuse of discretion amounting to excess of jurisdiction. . (Watercraft Venture Corporation vs. Wolfe, G.R. No. 181721, September 9, 2015) Cause of action must be specifically stated in the affidavit; sufficiency of the averments in applicant’s affidavit The basis of petitioner’s application for the issuance of the writ of preliminary attachment against the properties of respondent is Section 1(d) of Rule 57. For a writ of attachment to issue under this rule, the applicant must sufficiently show the factual circumstances of the alleged fraud because fraudulent intent cannot be inferred from the debtor’s mere non-payment of the debt or failure to comply with his obligation (See Philippine National Construction Corporation vs. Dy, G.R. No. 156887, October 3, 2005, 472 SCRA 1, 9-12). The applicant must then be able to demonstrate that the debtor has intended to defraud the creditor (Spouses Godinez vs. Hon. Alano, A.M. RTJ-98-1409, February 18, 1999, 362 Phil. 597). The affidavit, being the foundation of the writ, must contain such particulars as to how the fraud imputed to respondent was committed for the court to decide whether or not to issue the writ (Wee vs. Tankiansee, G.R. No.171124, February 13, 2008).

b. Requisites Attachment bond (Rule 57, Sec.3) Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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An attachment bond is a pre-requisite to the issuance of a writ of attachment. Until the attachment is discharged or lifted in accordance with law, the bond continues to be valid even when the PREMIUM IS NOT PAID.

c. Issuance and contents of order of attachment; affidavit and bond Issuance and contents of order of attachment (Rule 57, Sec.2) • may be issued either ex parte or upon motion with notice and hearing by the court in which the action is pending, or by the Court of Appeals or the Supreme Court. • must require the sheriff of the court to attach so much of the property in the Philippines of the party against whom it is issued, not exempt from execution, as may be sufficient to satisfy the applicant's demand, EXCEPT if such party makes a DEPOSIT or gives a BOND in an amount equal to that fixed in the order. Amount may be (a) sufficient to satisfy the applicant's demand or (b) the value of the property to be attached as stated by the applicant, exclusive of costs. Contents of affidavit of applicant (Rule 57, Sec. 3) An order of attachment shall be granted only when it appears by the affidavit of the applicant, or of some other person who personally knows the facts, that 1. a sufficient cause of action exists, 2. the case is one of those mentioned in section 1 hereof, 3. there is no other sufficient security for the claim sought to be enforced by the action, 4. the amount due to the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims. The affidavit and bond must be filed with the court before the order issues. Condition of applicant’s bond (Rule 57, Sec. 4) Applicant must give a bond executed to the adverse party in an amount fixed by the court in its order granting the issuance of the writ conditioned that the applicant will pay: 1. all the costs which may be adjudged to the adverse party and 2. all damages which the adverse party may sustain by reason of the attachment if the court shall finally adjudge that the applicant was not entitled thereto.

Improper issuance and service of writ of attachment A distinction should be made between issuance and implementation of the writ of attachment. This is necessary to determine when jurisdiction over the defendant should be acquired to validly implement the writ. The grant of the provisional remedy of attachment involves three stages: first, the court issues the order granting the application; second, the writ of attachment issues pursuant to the order granting the writ; and third, the writ is implemented. For the initial two stages, it is not necessary that jurisdiction over the person of the defendant be first obtained, but once the implementation of the writ commences, the court must have acquired jurisdiction over the defendant (Mangila vs. Court of Appeals, G.R. No. 125027, August 12, 2002, 387 SCRA 162).

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d. Rule on prior or contemporaneous service of summons Prior or contemporaneous service of summons required An ORDER of attachment may be granted ex parte. Its grant or denial rests upon the sound discretion of the court. However, its ENFORCEMENT shall be preceded or contemporaneously accompanied by service of summons and copy of the complaint, order of attachment and bond posted by the applicant (Davao Light and Power Co., Inc. vs. CA, 204 SCRA 343 [1991]). EXCEPTIONS TO PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS (Rule 57, Sec. 5)

1. Summons could not be served personally or by substituted service despite diligent efforts; 2. Defendant is a resident of the Philippines temporarily absent therefrom; 3. Defendant is a non-resident of the Philippines; or 4. The action is in rem or quasi in rem.

e. Manner of attaching real and personal property; when property attached is claimed by third person Rule 57, Sec. 5. Manner of attaching property. The sheriff enforcing the writ shall without attach only so much of the property of the adverse party not exempt from execution, as may be sufficient to satisfy the applicant's demand, UNLESS the adverse party (a) makes a DEPOSIT with the court from which the writ is issued, or (b) gives a COUNTERBOND executed to the applicant, in an amount equal to the bond fixed by the court in the order of attachment or to the value of the property to be attached, exclusive of costs. No levy on attachment pursuant to the writ issued under section 2 hereof shall be enforced unless it is preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint, the application for attachment, the applicant's affidavit and bond, and the order and writ of attachment, on the defendant within the Philippines. Rule 57, Sec. 7. Attachment of real and personal property; recording thereof. The sheriff executing the writ shall attach real and personal property in the following manner: 1. Real property, growing crops, or any other interest therein a. By filing with the registry of deeds a copy of the order, together with a description of the property attached and a notice that it is attached, or that such real property and any interest therein held by or standing in the name of such other person are attached; and b. By leaving a copy of such order, description, and notice with the occupant of the property, if any, or with such other person or his agent if found within the province. 2. Personal property capable of manual delivery a. By taking and safely keeping it in his custody, after issuing the corresponding receipt therefor 3. Stocks or shares, or an interest in stocks and shares, of any corporation or company

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a. By leaving with the president or managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the party against whom the attachment is issued, is attached pursuant to the writ 4. Debts and credits, including bank deposits, financial interest, royalties, commissions, and other personal property not capable of manual delivery a. By leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, a copy of the writ, and notice that the debts owing by him to the party against whom the attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to said party, are attached in pursuance of such writ 5. The interest of the party against whom attachment is issued in property belonging to the estate of the decedent, whether as heir, legatee, or devisee a. By serving the executor or administrator or other personal representative of the decedent with a copy of the writ and notice, that said interest is attached b. A copy of said writ of attachment and of said notice shall also be filed in the office of the clerk of the court in which said estate is being settled and served upon the heir, legatee, or devisee concerned. 6. If the property sought to be attached is in custodia legis a. A copy of the writ of attachment shall be filed with the proper court or quasi-judicial agency, and notice of the attachment served upon the custodian of such property. (Section 7, Rule 57 of the Rules of Court)

Effects of attachment 1. ATTACHMENT OF DEBTS, CREDITS AND ALL OTHER SIMILAR PERSONAL PROPERTY(Rule 57, Sec. 8 ). — •

All persons (1) having in their possession or under their control any credits or other similar personal property belonging to the adverse party, or (2) owing any debts to him, at the time of service upon them of the copy of the writ of attachment and notice as provided in the last preceding section, shall be LIABLE TO THE APPLICANT for the amount of such credits, debts or other similar personal property, until the attachment is discharged, or any judgment recovered by him is satisfied, unless such property is delivered or transferred, or such debts are paid, to the clerk, sheriff, or other proper officer of the court issuing the attachment.

•

Attachment and Garnishment distinguished

Garnishment is an attachment by which the plaintiff seeks to subject to his claim property of the defendant in the hands of a third person or money owed by such third person or garnishee to the defendant. The rules on attachment also apply to garnishment proceedings. Attachment

Property is usually in the possession of the party litigant.

Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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Subject is real or personal property

Garnishment

Property is in the possession of a third party. Subject is personal property, usually debts or security.

Garnishment of bank deposits does not violate the bank secrecy law (RA 1405) - because it does not involve examination or inquiry into the deposit, but is merely to inform the court whether defendant has a deposit in the bank which may be garnished. Public funds are exempt from garnishment – any judgment against the government cannot be enforced by execution against its public funds because disbursement of public funds must be covered by a corresponding appropriation passed by the legislature. When garnishment order lifted. – A garnishment order shall be lifted if it is established that: (a) the party whose accounts have been garnished has posted a counterbond or has made the requisite cash deposit; (b) the order was improperly or irregularly issued as where there is no ground for garnishment or the affidavit and/or bond filed therefor are defective or insufficient; (c) the property attached is exempt from execution, hence exempt from preliminary attachment; or (d) the judgment is rendered against the attaching or garnishing creditor. In order that the trial court may validly acquire jurisdiction to bind the person of the garnishee, it is not necessary that summons be served upon him. The garnishee need not be impleaded as a party to the case. All that is necessary for the trial court lawfully to bind the person of the garnishee or any person who has in his possession credits belonging to the judgment debtor is service upon him of the writ of garnishment. The garnishee becomes a virtual party to or a forced intervenor in the case. A separate action needs to be commenced only when the garnishee "claims an interest in the property adverse to him (judgment debtor) or denies the debt." (Perla Compania de Seguros, Inc. vs. Ramolete, G.R. No. L-60887 November 13, 1991) Garnishment has been defined as a specie of attachment for reaching credits belonging to the judgment debtor and owing to him from a stranger to the litigation. A writ of attachment is substantially a writ of execution except that it emanates at the beginning, instead of at the termination, of a suit. It places the attached properties in custodia legis, obtaining pendente lite a lien until the judgment of the proper tribunal on the plaintiff’s claim is established, when the lien becomes effective as of the date of the levy. By virtue of the writ of garnishment, the deposits of the defendants with Citytrust were placed in custodia legis of the court. From that time onwards, their deposits were under the sole control of the RTC and Citytrust holds them subject to its orders until such time that the attachment or garnishment is discharged, or the judgment in favor of Lee is satisfied or the credit or deposit is delivered to the proper officer of the court. ( Bank of the Philippine Islands vs. Lee, G.R. No. 190144, August 1, 2012)

2.

ATTACHMENT OF INTEREST IN PROPERTY BELONGING TO THE ESTATE OF A DECEDENT (Rule 57, Sec. 9) •

The attachment of the interest of an heir, legatee, or devisee in the property belonging to the estate of a decedent, shall not impair the powers of the executor, administrator, or Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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other personal representative of the decedent over such property for the purpose of administration. •

When any petition for distribution is filed, such personal representative shall report the attachment to the court and in the order made upon such petition, distribution may be awarded to such heir, legatee, or devisee, but the property attached shall be ordered delivered to the sheriff making the levy, subject to the claim of such heir, legatee, or devisee, or any person claiming under him.

Rules regarding terceria (third party claims) – Rule 57, Sec. 14  The third person whose property was levied on must make an • AFFIDAVIT of his title thereto, or right to the possession thereof, • stating the grounds of such right or title, and • serves such affidavit upon the sheriff while the latter has possession of the attached property and a copy thereof upon the attaching party The sheriff shall not be bound to keep the property as a general rule.  The sheriff is bound to keep the property when the attaching party, on demand of the sheriff, files a BOND approved by the court to INDEMNIFY the third-party claimant in a sum not less than the value of the property levied upon. (indemnity bond)  In case of disagreement as to such value, the same shall be decided by the court issuing the writ of attachment.  No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond.  The sheriff shall not be liable for damages for the taking or keeping of such property, to any such third-party claimant, if such bond is filed.  The proceedings set forth above shall not prevent such claimant or any third person from vindicating his claim to the property in the same or separate action.  or prevent the attaching party from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or a separate action.  When the writ of attachment is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff is sued for damages as a result of the attachment, he shall be represented by the Solicitor General, and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose. Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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 Aside from Rule 57, Sec. 14, the other provisions of the Rules of Court dealing with terceria or third party claims are Rule 39, Sec. 16 (execution) and Rule 60, Sec. 7 (replevin).  In case of a third party claim in attachment (Rule 57, Sec. 14) and replevin (Rule 60, Sec. 7), the third party claimant MAY STILL INTERVENE because there is still no judgment. That is why said provisions state that the third party claimant may vindicate his claim to the property in the same or separate action.  The timing of the filing of the third party claim is important because the timing determines the remedies that a third party is allowed to file. A third party claimant under Section 16 of Rule 39 may vindicate his claim to the property in a separate action, because intervention is no longer allowed as judgment has already been rendered. A third party claimant under Section 14 of Rule 57, on the other hand, may vindicate his claim to the property by intervention because he has a legal interest in the matter in litigation. (Fort Bonifacio Development Corporation vs. Yllas Lending Corporation., G.R. No. 158997, October 6, 2008) NOTES: Property to be attached only so much as to satisfy demand The sheriff is required to attach only so much of the property of the party against whom the order is issued as may be sufficient to satisfy the applicant’s demand, the amount of which is stated in the order, unless a deposit is made or a counter bond is given equal to said amount. However, if the value of the property to be attached is less than the amount of the demand, the amount of the applicant’s bond may be equal to the value of said property, and the amount of the adverse party’s deposit or counter bond may be equal to the applicant’s bond. The writ of preliminary attachament is issued upon the approval of the requisite bond (Insular Savings Bank vs. Court of Appeals, G.R. No. 123638, June 15, 2005). Preference of levy on attachment duly registered over a prior unregistered sale The settled rule is that levy on attachment, duly registered, takes preference over a prior unregistered sale. The preference created by the levy on attachment is not diminished even by the subsequent registration of the prior sale. This is so because an attachment is a proceeding in rem. It is against the particular property, enforceable against the whole world. The attaching creditor acquires a specific lien on the attached property which nothing can subsequently destroy except the very dissolution of the attachment or levy itself. The lien continues until the debt is paid, or sale is had under execution issued on the judgment, or until the judgment is satisfied, or the attachment discharged or vacated in some manner provided by law. Thus, in the registry, the attachment in favor of respondents appeared in the nature of a real lien when petitioner had his purchase recorded. The effect of the notation of said lien was to subject and subordinate the right of petitioner, as purchaser, to the lien (Valdevieso vs. Damalerio, G.R. No. 133303, February 17, 2005, 451 SCRA 664, 670).

Such a proceeding, in effect, means that the property attached is an indebted thing Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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and a virtual condemnation of it to pay the owner’s debt. The lien continues until the debt is paid, or sale is had under execution issued on the judgment, or until the judgment is satisfied, or the attachment discharged or vacated in some manner provided by law. Thus, in the registry, the attachment in favor of respondents appeared in the nature of a real lien when petitioner had his purchase recorded. The effect of the notation of said lien was to subject and subordinate the right of petitioner, as purchaser, to the lien (Valdevieso vs. Damalerio, G.R. No. 133303, February 17, 2005, 451 SCRA 664, 670; See also Lavides vs. Pre, G.R. No. 127830, October 21, 2001 and Biñan Steel Corporation vs. Court of Appeals, October 15, 2002, 391 SCRA 90).

The principal claim of respondent, as plaintiff a quo, is in the amount of P25,200,000.00, representing the three (3) unfunded checks drawn against, and presented for clearing to, respondent bank. Jurisprudence teaches that a writ of attachment cannot be issued for moral and exemplary damages, and other unliquidated or contingent claim (Insular Savings Bank vs. Court of Appeals, G.R. No. 123638, June 15, 2005, 460 SCRA 122).

Merits of the action in which a writ of preliminary attachment has been issued not triable on a motion for dissolution of the attachment. When the preliminary attachment is issued upon a ground which is at the same time the applicant’s cause of action, the defendant is not allowed to file a motion to dissolve the attachment under Section 13 of Rule 57 by offering to show the falsity of the factual averments in the plaintiff’s application and affidavits on which the writ was based – and consequently that the writ based thereon had been improperly or irregularly issued – the reason being that the hearing on such a motion for dissolution of the writ would be tantamount to a trial of the merits of the action. In other words, the merits of the action would be ventilated at a mere hearing of a motion, instead of at the regular trial (Chuidian vs. Sandiganbayan, G.R. No. 139941, January 19, 2001).

f. Discharge of attachment and the counter-bond •

After a writ of attachment has been enforced, the party whose property has been attached, or the person appearing on his behalf, may move for the discharge of the attachment wholly or in part on the security given. • Grounds for discharge: 1. Debtor has posted a COUNTER-BOND or makes a CASH DEPOSIT in an amount equal to that fixed by the court in the order of attachment. But if the attachment is sought to be discharged with respect to a particular property, the counter-bond shall be equal to the value of that property as determined by the court. In either case, the cash deposit or the counter-bond shall secure the payment of any judgment that the attaching party may recover in the action (R57S12); 2. Attachment was improperly or irregularly issued or enforced, as where there is no ground for attachment under Section 1 (R57S13); 3 . The bond filed is defective or insufficient (R57S13); 4. Attachment is excessive but the discharge shall be limited to the excess (R57S13); 5. Property attached is exempt from execution (R57S2 and R57S5); 6. Judgment is rendered against the attaching creditor (R57S19). Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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Rule 57, Sec. 15. Satisfaction of judgment out of property attached; return of sheriff. If judgment be recovered by the attaching party and execution issue thereon, the sheriff may cause the judgment to be satisfied out of the property attached, if it be sufficient for that purpose in the following manner: (a) By paying to the judgment obligee the proceeds of all sales of perishable or other property sold in pursuance of the order of the court, or so much as shall be necessary to satisfy the judgment; (b) If any balance remains due, by selling so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that purpose remain in the sheriff's hands, or in those of the clerk of the court; (c) By collecting from all persons having in their possession credits belonging to the judgment obligor, or owing debts to the latter at the time of the attachment of such credits or debts, the amount of such credits and debts as determined by the court in the action, and stated in the judgment, and paying the proceeds of such collection over to the judgment obligee. The sheriff shall forthwith make a return in writing to the court of his proceedings under this section and furnish the parties with copies thereof. Rule 57, Sec. 16. Balance due collected upon an execution; excess delivered to judgment obligor. If after realizing upon all the property attached, including the proceeds of any debts or credits collected, and applying the proceeds to the satisfaction of the judgment, less the expenses of proceedings upon the judgment, any BALANCE shall remain due, the sheriff must proceed to COLLECT such balance as upon ordinary execution. Whenever the judgment shall have been paid, the sheriff, upon reasonable demand, must RETURN to the judgment obligor the attached property remaining in his hands, and any proceeds of the sale of the property attached not applied to the judgment. Rule 57, Sec. 17. Recovery upon the counter-bond. When the judgment has become executory, the surety or sureties on any counter-bond given pursuant to the provisions of this Rule to secure the payment of the judgment shall become charged on such counter-bond and bound to pay the judgment obligee upon demand the amount due under the judgment, which amount may be recovered from such surety or sureties after notice and summary hearing in the same action. • •

If the judgment is in favor of the party against whom the attachment was issued (ATTACHEE), the whole sum deposited must be REFUNDED to him or his assignee (R57S18), and All the proceeds of sales and money collected or received by the sheriff, under the order of attachment, and all money attached remaining in the sheriff’s hands, shall be DELIVERED to such party, and the order of attachment DISCHARGED (R57S19).

NOTES: Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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There are only two ways of quashing a writ of attachment: (a) by filing a counterbond immediately; or (b) by moving to quash on the ground of improper and irregular issuance. These grounds for the dissolution of an attachment are fixed in Rule 57 and the power of the Court to dissolve an attachment is circumscribed by the grounds specified therein. Petitioner’s motion to lift attachment failed to demonstrate any infirmity or defect in the issuance of the writ of attachment; neither did he file a counterbond (Chuidian vs. Sandiganbayan, G.R. No. 139941, January 19, 2001).

Without evidence of malice, attaching party not liable for moral damages. A wrongful attachment may give rise to liability for moral damages but evidence must be adduced not only of the torment and humiliation brought upon the defendant by the attaching party but also of the latter's bad faith or malice in causing the wrongful attachment, such as evidence that the latter deliberately made false statements in its application for attachment. Absent such evidence of malice, the attaching party cannot be held liable for moral damages. (Spouses Santiago vs. Allied Banking Corporation, G. R. No. 16450, November 25, 2008) Attachment bond under Sec. 3 is different from the bond under Sec. 14 (proceedings where property claimed by third person). Sec. 3 refers to the attachment bond to assure the return of defendant’s property or the payment of damages to the defendant if the plaintiff’s action to recover possession of the same property fails, in order to protect the person’s right of possession of said property, or to prevent the defendant from destroying the same during the pendency of the suit. Under Sec. 14, the purpose of the bond is to indemnify the sheriff against any claim by the intervenor to the property seized or for damages arising from such seizure, which the sheriff was making and for which the sheriff was directly responsible to the third party (Fort Bonifacio Development Corporationvs. Yllas Lending Corporation, G.R. No. 158997, October 6, 2008). No sale of property covered by writ of preliminary attachment before prior judgment; exception A writ of attachment is a provisional remedy and its issuance does not have the effect of a final judgment over the property attached. Thus, the property cannot be sold before fiinal judgment. Exception: An attached property may be sold after levy on attachment and before entry of judgment whenever it shall be made to appear to the court In which the action is pending, upon hearing with notice to both parties, that (a) the attached property is perishable or that (b) the interests of all the parties to the action will be subserved by the sale of the attached property (Rule 57, Sec. 11; China Banking Corporation vs. Asian Corporation and Development Corporation, G.R. No. 158271, April 8, 2008).

4. Preliminary Injunction DEFINITION AND NATURE • A preliminary injunction is an order granted at any stage of an action prior to judgment of final order, requiring a party, court, agency, or person to refrain from a particular act or acts. It is a preservative remedy to ensure the protection of a party’s Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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substantive rights or interests pending the final judgment in the principal action. A plea for an injunctive writ lies upon the existence of a claimed emergency or extraordinary situation which should be avoided for otherwise, the outcome of a litigation would be useless as far as the party applying for the writ is concerned (Phil. Ports Authority v. Cipres Stevedoring & Arrastre, Inc., G.R. No. 145742, 14 July 2005, 463 SCRA 358, 373-374). •

A preliminary injunction is a provisional remedy that a party may resort to in order to preserve and protect certain rights and interests during the pendency of an action. Its sole objective is to preserve the status quo until the merits of the case can be heard fully. Status quo is defined as the last actual, peaceful, and uncontested status that precedes the actual controversy, that which is existing at the time of the filing of the case. Indubitably, the trial court must not make use of its injunctive relief to alter such status. (Pineda vs. Court of Appeals, G.R. No. 181643, November 17, 2010).

•

A preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order requiring a party or a court, an agency, or a person to refrain from a particular act or acts. It may also require the performance of a particular act or acts, in which case it is known as a preliminary mandatory injunction. Thus, a prohibitory injunction is one that commands a party to refrain from doing a particular act, while a mandatory injunction commands the performance of some positive act to correct a wrong in the past. (Delos Santos vs.Metropolitan Bank and Trust Company G.R. No. 153852 , October 24, 2012) 1âwphi

a. Definitions and Differences: Preliminary

1

Injunction and Temporary

Restraining Order – may be issued ex parte or without a hearing, and is effective for a limited period. Preliminary Injunction - may not be issued ex parte and is effective while the main case is pending There is no power, the exercise of which, is more delicate which requires greater caution, deliberation, and sound discretion, or (which is) more dangerous in a doubtful case than the issuing of an injunction. It is the strong arm of equity that never ought to be extended unless in cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. (University of the Philippines v. Catungal, Jr., G.R. No. 121863, May 5, 1997, 272 SCRA 221,236 ) Injunction, Preliminary Injunction, and Temporary Restraining Order Distinguished Injunction is a judicial writ, process or proceeding whereby a party is ordered to do or refrain from doing a certain act. It may be the main action or merely a provisional remedy for and as an incident in the main action. The main action for injunction is distinct from the provisional or ancillary remedy of preliminary injunction which cannot exist except only as part or an incident of an independent action or proceeding. As a matter of course, in an action for injunction, the auxiliary remedy of preliminary injunction, whether prohibitory or mandatory, may issue (Bacolod City Water District vs. Labayan, G.R. No. 157494, December 10, 2004, 446 SCRA 110 citing Urbanes Jr. vs. Court of Appeals, G.R. No. 117964, March 28, 2001, 355 SCRA 537). Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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A preliminary injunction is granted at any stage of an action or proceeding prior to the judgment or final order. It persists until it is dissolved or until the termination of the action without the court issuing a final injunction. (Id, citing Miriam College Foundation Inc., vs. Court of Appeals, G.R. No. 127930, December 15, 2000, 348 SCRA 265). A restraining order is issued to preserve the status quo until the hearing of the application for preliminary injunction which cannot be issued ex parte (Id, citing Miriam College Foundation Inc. vs. Court of Appeals, G.R. No. 127930, December 15, 2000, 348 SCRA 265). Under the Rules of Court, probability is enough basis for injunction to issue as a provisional remedy, which is different from injunction as a main action where one needs to establish absolute certainty as basis for a final and permanent injunction.(Hernandez vs. NAPOCOR, G.R. No. 145328, March 23, 2006). PURPOSE 1. The purpose of a preliminary injunction is to prevent threatened or continuous irremediable injury to some of the parties before their claims can be thoroughly studied and adjudicated (Medina vs. Greenfield Development Corporation, G.R. No. 140228, November 19, 2004, 443 SCRA 150; Light Rail Transit Authority vs. Court of Appeals, G.R. Nos. 139275-76 and 140949, November 25, 2004, 444 SCRA 125; Sps. Estares vs. Court of Appeals, G.R. No. 144755, June 8, 2005). 2. Its sole aim is to preserve the status quo until the merits of the case can be heard fully (Cortez-Estrada vs. Samut, G.R. No. 154407, February 14, 2005). Thus, it will be issued only upon a showing of a clear and unmistakable right that is violated. Moreover, an urgent and permanent necessity for its issuance must be shown by the applicant (First Global Realty and Development Corporation vs. San Agustin, G.R. No. 144499, February 19, 2002, 377 SCRA 341). 3. Meaning of Status Quo The status quo is the last actual peaceable uncontested status (LAPUS) that preceded the controversy (Dolmar Real Estate Development Corporation, G.R. No. 172990, February 27, 2008; Preysler Jr vs. Court of Appeals, G.R. No. 158141 July 11, 2006). Distinguished from Prohibition INJUNCTION Generally directed against a party

PROHIBITION Generally directed against a court, tribunal or personal exercising judicial powers Does not involve the jurisdiction of the May be on the ground that court is acting court without or in excess of jurisdiction May be the main action or provisional Always a main action remedy only

Issues on jurisdiction 1. Pursuant to the policy of judicial stability, the judgment or order of a court of competent Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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jurisdiction may not be interfered with by any court of concurrent jurisdiction (Javier vs. Court of Appeals, February 16, 2004, 423 SCRA 11; See also Chings vs. Court of Appeals, February 24, 2003, 398 SCRA 88). 2. Injunctions issued by the Regional Trial Courts are limited to acts committed or to be committed within its territorial jurisdiction. The doctrine is, however, limited to prohibitory and injunctive writs. Section 21 of BP 129 reads: “Original jurisdiction in other cases – Regional Trial Courts shall exercise original jurisdiction (1) in the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which may be enforced in any party of their respective regions.” 3. Judge's authority to issue a writ of preliminary injunction only within his/her territorial jurisdiction As the presiding judge of RTC, Marawi City, he should have known that Makati City was way beyond the boundaries of his territorial jurisdiction insofar as enforcing a writ of preliminary injunction is concerned. Section 21(1) of B.P. Blg. 129, as amended, provides that the RTC shall exercise original jurisdiction in the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which may be enforced in any part of their respective regions (Gomos vs. Adiong, A.M. No. RTJ-04-1863, October 22, 2004, 441 SCRA 162). 4. The authority of a judge to issue a writ of injunction is limited only to and operative only within his province or district and any such writ issued in contravention of such limitation is void (Dela Paz vs. Adiong, November 23, 2004, 443 SCRA 480). Original action for injunction outside the jurisdiction of the Court of Appeals What petitioner filed with the appellate court was an original action for preliminary injunction which is a provisional and extraordinary remedy calculated to preserve or maintain the status quo of things and is availed of to prevent actual or threatened acts, until the merits of the case can be heard. An original action for injunction is outside the jurisdiction of the Court of Appeals, however. Under B.P. 129, the appellate court’s jurisdiction to grant a writ of preliminary injunction is limited to actions or proceedings pending before it (Section 2 of Rule 58) or in a petition for certiorari, prohibition or mandamus (Section 7 of Rule 65). In the case at bar, petitioner’s complaint-in-intervention in Civil Case No. 00-196 was pending before Branch 256 of the Muntinlupa RTC, not with the appellate court. Petitioner’s petition before the appellate court does not show that in issuing the writ of possession, the Muntinlupa RTC acted without or in excess of its jurisdiction or with grave abuse of discretion for it to be treated as either one for certiorari or prohibition (AllgemeineBau-Chemie Phils., Inc., vs. Metropolitan Bank & Trust Co., Honorable N. C. Perello, G.R. No. 159296 , February 10, 2006). Injunction to restrain extrajudicial foreclosure involving several parcels located in different provinces Separate injunction suits may be filed for breach of mortgage contract with injunction to restrain extrajudicial foreclosure proceedings of mortgaged properties located in different provinces without violating the rule against forum shopping since injunction is enforceable only within the territorial limits of the trial court, thus the mortgagor is left without remedy as Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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to the properties located outside the jurisdiction of the issuing court unless an application for injunction is made with another court which has jurisdiction over the latter court (Benguet Management Corporation vs. Court of Appeals, September 18, 2003, 411 SCRA 347). Authority of any member of the court to issue a TRO While any member of the Court of Appeals may issue preliminary injunction or TRO, this power is exercised only in case of extreme urgency and in the tradition of the Supreme Court, the Court en banc or division ratifies or confirms the act of the single justice at the very next session of the Court (Heirs of the Late Justice Jose B.L. Reyes vs. Court of Appeals, August 2005, 338 SCRA 282; Rule VI, Section 5 of the Internal Rules of the Court of Appeals) Cases where preliminary injunction is prohibited or must be issued with utmost caution and judiciousness 1. Release of articles under seizure and forfeiture proceedings by the Bureau of Customs (Commissioner of Customs vs. Court of Appeals, G.R. Nos. 111202-05, January 31, 2006; Zuno vs. Cabredo, A.M. No. RTJ-03-1779, April 30, 2003; Administrative Circular No. 7-99). 2. Injunction orders in labor cases (Art. 255, Labor Code, as amended by BP 227) 3. Injunction to enjoin or restrain criminal prosecution (Borlongan vs. Pena, G.R. No. 143591, November 23, 2007; Samson vs. Guingona, Jr., G.R. No. 123504, December 14, 2000) 4. Injunction to prevent the foreclosure of real estate mortgages by government financing institutions (OCA Circular 93-2004 in relation to Sec. 1, Rule 141 of the Rules of Court, Sec. 3, PD 385 and Administrative Circular No. 07-99) 5. Injunction to prevent the Anti Money Laundering Council from issuing and /or implementing freeze orders, with the exception of writs issued by the Court of Appeals and the Supreme Court (RA 9160 as amended by RA 9194) 6. Injunction to restrain the Presidential Agrarian Reform Council from performing its tasks (Sec. 55, RA 6657) 7. Injunction against public administrative officers in the issuance of public grants for the exploitation of natural resources (PD 605)

No preliminary injunction against government infrastructure projects R.A. No. 8975, which took effect on November 26, 2000, is the present law that proscribes lower courts from issuing restraining orders and preliminary injunctions against government infrastructure projects. In ensuring the expeditious and efficient implementation and completion of government infrastructure projects, its twin objectives are: (1) to avoid unnecessary increase in construction, maintenance and/or repair costs; and (2) to allow the immediate enjoyment of the social and economic benefits of the project. R.A. No. 8975 exclusively reserves to the Supreme Court the power to issue injunctive writs on government infrastructure projects. A judge who violates the prohibition shall suffer the penalty of suspension of at least sixty (60) days without pay, in addition to any civil and criminal liabilities that he or she may incur under existing laws. Through Administrative Circular No. 11-2000, the Supreme Court has instructed all judges Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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and justices of the lower courts to comply with and respect the prohibition. (Republic vs. Sps. Lazo, G.R. No. 195594, September 29, 2014)

ISSUANCE OF PRELIMINARY INJUNCTION A. Principal action necessary 1. Independent action merely to obtain preliminary injunction not allowed An independent action cannot be maintained merely to procure preliminary injunction – some substantive relief must be sought. Preliminary injunction is a mere provisional remedy and adjunct to the main suit. The dismissal of the principal action thus results in the denial of the prayer for the issuance of the writ (PNB vs. Ritratto Group, Inc., July 31, 2001, 362 SCRA 216). A writ of preliminary injunction, as an ancillary preventive remedy, may only be resorted to by a litigant to protect or preserve his rights or interest and for no other purpose during the pendency of the principal action (Allied Domecq Phi., Inc. vs. Villon, G.R. No. 152264, September 30, 2004, 439 SCRA 667). 2. Reason for power of court to issue preliminary injunction The controlling reason for the existence of the judicial power to issue the writ is that the court may thereby prevent a threatened or continuous irremediable injury to some of the parties before their claims can be thoroughly investigated and advisedly adjudicated. It is to be resorted only when there is a pressing necessity to avoid injurious consequences which cannot be remedied under any standard of compensation (Development Bank of the Philippines vs. Court of Appeals, October 30, 2000, 344 SCRA 492; See also LRTA vs. Court of Appeals, G.R. Nos. 139275-76 and 1409949, November 25, 2004; Estares vs. Court of Appeals, G.R. No. 144755, June 8, 2005).

b. Requisites Requisites for issuance of preliminary injunction 1. The right to be protected exists prima facie and 2. The acts sought to be enjoined are violative of that right (Los Baños Rural Bank, Inc. vs. Africa, July 11, 2002, 384 SCRA 535; Zamboanga Barter Goods Retailers Association, Inc. vs. Lobregat, July 7, 2004, 433 SCRA 624; European Resources and Technologies, Inc. vs. Ingenieuburo Birkhahn + Nolte Ingeniurgesellscahft mbh, July 26, 2004, 435 SCRA 246). . In the absence of a clear legal right, the issuance of the injunctive relief constitutes grave abuse of discretion. Injunction is not designed to protect contingent or future rights. Where the complainant’s right is doubtful or disputed, injunction is not proper. The possibility of irreparable damage without proof of actual existing right is not a ground for an injunction.( BP Philippines, Inc. (Formerly Burmah Castrol Philippines, Inc.) vs. Clark Trading Corporation, G.R. No. 175284, September 19, 2012) In order that an injunctive relief may be issued, the applicant must show that: "(1) the right of the complainant is clear and unmistakable; (2) the invasion of the right sought to be protected is material and substantial; and (3) there is an urgent and paramount necessity for the writ to Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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prevent serious damage." (Compania General de Tabacos de Filipinas vs. Sebandal, G.R. No. 161051, July 23, 2009) As the lower courts correctly found, Tuazon had no ownership to confer to the petitioners despite the latter’s reimbursement of Tuazon’s purchase expenses. Because they were never owners of the property, the petitioners failed to establish entitlement to the writ of preliminary injunction. "[T]o be entitled to an injunctive writ, the right to be protected and the violation against that right must be shown. A writ of preliminary injunction may be issued only upon clear showing of an actual existing right to be protected during the pendency of the principal action. When the complainant’s right or title is doubtful or disputed, he does not have a clear legal right and, therefore, the issuance of injunctive relief is not proper." (Plaza vs. Lustiva, G.R. No. 172909, March 5, 2014) Meaning of clear legal right A preliminary injunctive writ issues only upon a showing of the applicant’s "clear legal right" being violated or under threat of violation by the defendant. "Clear legal right," within the meaning of Rule 58, contemplates a right "clearly founded in or granted by law." Any hint of doubt or dispute on the asserted legal right precludes the grant of preliminary injunctive relief. For suits attacking the validity of laws or issuances with the force and effect of law, as here, the applicant for preliminary injunctive relief bears the added burden of overcoming the presumption of validity inhering in such laws or issuances. These procedural barriers to the issuance of a preliminary injunctive writ are rooted on the equitable nature of such relief, preserving the status quo while, at the same time, restricting the course of action of the defendants even before adverse judgment is rendered against them. There is no doubt that the issuance of the ban to protect the domestic industry (E.O. No. 156) is a reasonable exercise of police power. The deterioration of the local motor manufacturing firms due to the influx of imported used motor vehicles is an urgent national concern that needs to be swiftly addressed by the President. In the exercise of delegated police power, the executive can therefore validly proscribe the importation of these vehicles. (Executive Secretary, vs. Forerunner Multi Resources, Inc., G.R. No. 199324, January 7, 2013) When preliminary injunction may not issue The foreclosure of a mortgage is but a necessary consequence of the non-payment of an obligation secured by the mortgage. Where the parties have stipulated in their agreement, mortgage contract and promissory note that the mortgagee is authorized to foreclose the mortgage upon the mortgagor’s default, the mortgagee has a clear right to the foreclosure in case of the mortgagor’s default. Thereby, the issuance of a writ of preliminary injunction upon the application of the mortgagor will be improper. Mindful that an injunction would be a limitation upon the freedom of action of Metrobank, the RTC justifiably refused to grant the petitioners’ application for the writ of preliminary injunction. We underscore that the writ could be granted only if the RTC was fully satisfied that the law permitted it and the emergency demanded it. That, needless to state, was not true herein. (Delos Santos vs.Metropolitan Bank and Trust Company G.R. No. 153852 , October 24, 2012) 1

When a writ of preliminary injunction may issue A writ of preliminary injunction may only be issued upon a clear showing: (1) that there exists a right to be protected, and (2) that the action sought to be enjoined is violative of that right. In the case at bar, the RTC found that, in accordance with the MCTC’s findings in Civil Case No. 1243-99 as affirmed by the Court of Appeals, the Bueno sisters, and not petitioner, Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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were the owners of the structure sought to be demolished. Clearly, the trial court found that petitioner had no actual right that needs to be protected by a writ of preliminary injunction (Pasion vs. Melegrito, G.R. No. 16658, March 28, 2007). Options of respondents in a petition for writ of preliminary injunction The petitioner adduced his evidence to support his plea for a writ of preliminary injunction. The respondents then had three options: (a) file a motion to deny/dismiss the motion on the ground that the petitioner failed to discharge his burden to prove the factual and legal basis for his plea for a writ of preliminary injunction and, if the trial court denies his motion, for them to adduce evidence in opposition to the petitioner’s plea; (b) forego their motion and adduce testimonial and/or documentary evidence in opposition to the petitioner’s plea for a writ of preliminary injunction; or, (c) waive their right to adduce evidence and submit the incident for consideration on the basis of the pleadings of the parties and the evidence of the petitioner (Tayag vs. Lacson, G.R. No. 134971 , March 25, 2004, 426 SCRA 282). Issuance of injunctions to be avoided to dispose of merits The prevailing rule is that courts should avoid issuing a writ of preliminary injunction which would in effect dispose of the main case without trial (Medina vs. Greenfield Development, G.R. No. 140228, November 19, 2004). The prevailing rule is that courts should avoid issuing a writ of preliminary injunction which would in effect dispose of the main case without trial. The RTC contravened the foregoing guidelines and easily ignored the exhortation by granting JPV's application for injunction in the initial stage of the case. Such granting of JPV's application already amounted to the virtual acceptance of JPV's alleged entitlement to preventing petitioner Iloilo City from considering and passing upon the applications of other parties like Grahar to operate their own Private Emission Testing Center (PETC) in Iloilo City based on JPV's still controversial capability to serve all the registered motor vehicles in Iloilo City. The granting amounted to the prejudgment of the merits of the case, something the RTC could not validly do. (City of Iloilo v. Honrado, G.R. No. 160399, December 9, 2015) - LPB

NOTES:

1. A writ of preliminary injunction, as an ancillary or preventive remedy, may only be resorted to by a litigant to protect or preserve his rights or interests and for no other purpose during the pendency of the action. (China Banking Corporation v. Court of Appeals G. R. No.121158, December 5,1996,265 SCRA 327.) It should only be granted if the party asking for it is clearly entitled thereto. (Climaco vs. Macadaeg, 114 Phil.870 [1962]; Subido v. Gopengco, G.R. No. 25618, March 28,1969, 27 SCRA 455; Police Commission v. Bello, G.R. Nos. 29959-60, January 30, 1971, 37 SCRA 230; Capitol Medical Center, Inc. v. Court of Appeals, G.R. No. 82499, Oct. 13,1989, 178 SCRA 493.) 2. An injunction will not issue to protect a right not in esse and which may never arise or to restrain an act which does not give rise to a cause of action. ( Republic of the Philippines v. Villarama G.R. No. 117733, September 5, 1997, 278 SCRA 736; Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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Buayan v. Quintillan, supra, note 315.) There must exist a clear and actual right to be protected and that the acts against which the writ is to be directed are violative of the established right. (G & S Transport Corporation vs CA 382 SCRA 262 GR No. 120287, May 28, 2002)

c. Kinds of Injunction 1. Preliminary prohibitory injunction – order granted at any stage of the action or proceeding prior to judgment or final order requiring a party or court, agency or person to refrain from a particular act or acts (Rule 58, Sec. 1) 2. Preliminary mandatory injunction – order granted at any stage of the action or proceeding prior to the judgment or final order requiring the performance of a particular act or acts. 3. Final or permanent injunction - one issued in the judgment in the case permanently restraining the defendant or making the preliminary injunction permanent.

d. When writ may be issued Rule 58, Sec. 3. Grounds for issuance of preliminary injunction. A preliminary injunction may be granted when it is established: (a) That the applicant is ENTITLED TO THE RELIEF DEMANDED, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually; (b) That the commission, continuance or non-performance of the act or acts complained of during the litigation would PROBABLY WORK INJUSTICE TO THE APPLICANT; or (c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts PROBABLY IN VIOLATION OF THE RIGHTS OF THE APPLICANT respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. NOTES: Preliminary injunction granted only when complaint is verified Rule 58, Section 4 (a) is clear with regard to the procedure to be followed in the issuance of writs of preliminary injunction, i.e., a preliminary injunction or temporary restraining order may be granted only when the application in the action or proceeding is verified, and shows facts entitling the applicant to the relief demanded. Absence of verification makes an application or petition for preliminary injunction patently insufficient both in form and substance (Rivera vs. Mirasol, A.M. No. RTJ-04-1885, July 15, 2004, 434 SCRA 315). Issuance of injunctions to be avoided to dispose of merits The prevailing rule is that courts should avoid issuing a writ of preliminary injunction which would in effect dispose of the main case without trial (Medina vs. Greenfield Development, G.R. No. 140228, November 19, 2004). Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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Injunctions not issued where act sought to be prevented had been committed / consummated acts (fait accompli) 1. The remedy of injunction could no longer be availed of where the act to be prevented had long been consummated. Where a span of seven years has intervened from the time the award of the lot has already been accomplished to the time petitioners’ complaint for injunction was filed, injunction would just be an exercise in futility (Zabat vs. CA, August 23, 2000, 338 SCRA 551). 2. A writ of preliminary injunction will not issue if the act sought to be enjoined is a fait accompli or an accomplished or consummated act (Transfield Philippines, Inc., vs. Luzon Hydro Corporation, November 22, 2004, 443 SCRA 307). By issuing a temporary restraining order and writ of preliminary injunction enjoining the eviction of the respondents, the Court of Appeals allowed the respondents to stay in the property despite the mandatory provision of Section 19, Rule 70 of the Rules of Court. The appellate court, in effect, granted the same injunctive relief which the respondents failed to secure from the Regional Trial Court due to their procedural lapse (David vs. Navarro, February 11, 2004, 422 SCRA 499). Exception: When the party praying for an injunction alleged not only acts that were already committed or consummated, but also those acts that the defendant could still continue to execute unless restrained. In Dayrit, the acts sought to be restrained in that case (i.e., making excavations, opening a ditch, and construction of a dam) are capable of being continued or repeated. In other words, the defendant's questioned acts, even if partly or initially executed, are capable of continuation, as these acts consist of several stages that are not consummated by a mere single act. The ruling is that "not only the commission or execution of such acts, but also their continuation can be prevented or prohibited by an injunction." (Co, Sr. vs. The Philippine Canine Club, G.R. No. 190112, April 22, 2015)

e. Grounds for issuance of preliminary injunction Requisites for injunctive writ: (1) invasion of the right is material and substantial; (2) the right of complainant is clear and unmistakable; (3) and there is an urgent and permanent necessity of the writ to prevent serious damage. Purpose of preliminary injunction – to preserve the status quo ante litem motam (status before the suit) until the trial court hears fully the merits of the case. Its primary purpose is not to correct a wrong already consummated or to redress an injury already sustained, or to punish wrongful acts already committed, but to preserve and protect the rights of the litigant during the pendency of the case (Bustamante vs. CA, 4/17/2002). Injunction is a preservative remedy Injunction is a preservative remedy for the protection of substantive rights or interests. It is not a cause action in itself but merely a provisional remedy, an adjunct to a main suit. Reason for injunction Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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So that the court may thereby prevent a threatened or continuous irremediable injury to some of the parties before their claims can be thoroughly investigated and advisedly adjudicated. The application of the writ rests upon an alleged existence of an emergency or of a special reason for such an order before the case can be regularly heard, and the essential conditions for granting such temporary injunctive relief are that (a) the complaint alleges facts which appear to be sufficient to constitute a cause of action for injunction and that (b) on the entire showing on both sides, it appears, in view of all the circumstances, that the injunction is reasonably necessary to protect the legal rights of the plaintiff pending the litigation.(Estares vs. CA, 459 SCRA 604 [2005]). Status quo sought to be preserved – the last actual, peaceable and uncontested situation which precedes a controversy. The status quo should be existing ante litem motam, or at the time of the filing of the case. For this reason, a preliminary injunction should not establish new relations between the parties, but merely maintain or re-establish the pre-existing relationship between them (Bustamante vs. CA, supra). There must be showing of irreparable injury 1. A writ of injunction should never issue when an action for damages would adequately compensate the injuries caused. The very foundation of the jurisdiction to issue the writ of injunction rests in the existence of a cause of action and in the probability of irreparable injury, inadequacy of pecuniary compensation and the prevention of multiplicity of suits (PNB vs. RJ Ventures Realty & Development Corporation, September 27, 2006, 503 SCRA 639). 2. While the evidence to be submitted at the hearing on the motions for preliminary injunction need not be conclusive and complete, there must be a showing, at least tentatively of irreparable injury. As a preliminary injunction is intended to prevent irreparable injury to the plaintiff, that possibility should be clearly established, if only provisionally, to justify the restraint of the act complained against. Where no such injury is shown, the issuance of the preliminary injunction, being utterly without basis, was held to be tainted with grave abuse of discretion that cannot be corrected by certiorari (Estares vs. Court of Appeals, G.R. No. 144755, June 8, 2005). 3. The Court cannot see how petitioner shall suffer grave and irreparable injury if the monetary awards in favor of respondents in the Decision of the NLRC are executed. The monetary awards may be collected from PMPI and any of its remaining assets. It must be emphasized that the NLRC, in its decision, explicitly states that petitioner is not solidarily liable with PMPI but is liable only in his official capacity. In the event that the monetary awards are actually executed on petitioner’s properties, and his Petition for Certiorari in CA-G.R. SP No. 94005 is eventually granted, the damage against petitioner shall not be irreparable for respondents can simply be ordered to return to petitioner the amounts they received, with interests, if appropriate. Given the foregoing, the Court of Appeals correctly denied petitioner’s application since there is a marked absence of any urgent necessity for the issuance of a TRO or writ of preliminary injunction. (Brizuela vs. Dingle, G.R. No. 175371, April 20, 2008). 4. While merely a sampling of the evidence is required, such evidence must, however, rest on solid grounds and not on mere hearsay or unfounded fears. The evidence to be submitted to justify preliminary injunction at the hearing thereon need not be conclusive or complete but need only be a “sampling” intended merely to give the court an idea of the justification for the preliminary injunction pending the decision of the case on the merits. Our concern here involves only the propriety of the preliminary Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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injunction and not the merits of the case still pending with the trial court. A perusal of the records of the case at bar shows, however, that the trial court, in arriving at its belief that there is need to at least temporarily restrain the defendants just parroted petitioner’s allegations in his “STATEMENT OF FACTS” in the complaint and in his Affidavit. The minutes of a purported session do not show that testimonial or documentary evidence was presented during the session-alleged “summary hearing.” (Matutina vs. PNB, G.R. No. 165570, February 23, 2006). NOTES Injunction not designed to protect contingent or future rights. Injunction will not issue to protect a right not in esse and which may never arise, or to restrain an act which does not give rise to a cause of action. The complainant’s right or title must be CLEAR AND UNQUESTIONED, for equity, as a rule, will not take cognizance of suits to establish title, and will not lend its preventive aid where the complainant’s title or right is doubtful or disputed. The possibility of irreparable damage, without proof of violation of an actual existing right, is no ground for an injunction, being mere damnum absque injuria (Ulang vs. CA, 225 SCRA 637 [1993]).

f. Grounds for objection to, or for the dissolution of injunction or restraining order 1. Insufficiency of application 2. Other grounds (e.g. applicant’s bond is insufficient/defective), upon affidavits of the party or person enjoined, which may be opposed by the applicant also by affidavits. 3. If it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof would cause irreparable damage to the party or person enjoined, while the applicant can be fully compensated for such damages as he may suffer, and the former files a bond in an amount fixed by the court conditioned that he will pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or restraining order. •

If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified (R57S6).

When injunction improper Tay Chun Suy vs.CA, 229 SCRA 151 (1994) As between the buyer of a vessel at a prior extrajudicial foreclosure and the buyer at a subsequent auction sale, both buyers failing to register their transactions, who has a better right of dominion over the vessel? Rule that no court has the power to interfere by injunction with the judgments of another court with concurrent or coordinate jurisdiction applies only when NO PARTY CLAIMANT involved. When a THIRD PARTY or a stranger to the action asserts a claim over the property levied upon, the claimant may vindicate his claim by an independent action in the proper civil court which may stop the execution of the judgment on property not belonging to the judgment debtor. Injunction to stay final and executory decision unavailable; exception Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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An injunction to stay a final and executory decision is unavailing except only after a showing that facts and circumstances exist which would render execution unjust or inequitable, or that a change in the situation of the parties occurred. Here, no such exception exists as shown by the facts earlier narrated. To disturb the final and executory decision of the ERB in an injunction suit is to brazenly disregard the rule on finality of judgments (Philippine Sinter Corporation and PHIVIDEC Industrial Authority vs. Cagayan Electric Power and Light Co., Inc., G.R. No. 127371, 381 SCRA 582, April 25, 2002).

Writ of preliminary injunction may not be issued ex parte A writ of preliminary injunction shall not be granted without prior notice and hearing to the party or person sought to enjoined (Rule 58, Sec. 5). Reason: the preliminary injunction may cause grave and irreparable injury to the person enjoined.

Temporary restraining order may be issued ex parte 1. If great or irreparable injury would result to the applicant before the matter can be heard on notice, the court may issue a TRO effective for 20 days from service on party enjoined 2. If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the court may issue a TRO effective only for 72 hours from issuance, renewable after summary hearing for a period not exceeding 20 days including the original 72 hours Summary hearing required Whenever an application for a TRO is filed, the court may act on the application only after all parties have been notified and heard in a summary hearing. Summary hearing may not be dispensed with. Administrative Circular No. 20-95 aims to restrict the ex parte issuance of a TRO only to cases of extreme urgency in order to avoid grave injustice and irreparable injury (Dela Cruz vs. Villalon-Pornillos, June 8, 2004, 431 SCRA 153).

g. Duration of TRO RTC - 20 days CA - 60 days SC - until further orders Limited lifetime of TRO The TRO issued by the CA has long lapsed, its lifetime under Rule 58 of the Rules of Court being only 60 days. Respondents themselves admit that the CA allowed its TRO to lapse. Because there is nothing that will now stop the Imus, Cavite RTC from implementing its writ of preliminary injunction against respondents, there is no need for us to issue any order enjoining respondents from implementing petitioners’ suspension. This petition, as a result, has become moot and academic. (Yu and Yuhico vs. The Orchard Golf and Country Club, Inc., G.R. No. 150335, March 1, 2007). Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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Cases where injunction was held improper 1. To restrain collection of taxes except where there are special circumstances that bear the existence of irreparable injury. ( Churchill & Tait v. Rafferty, 32 Phil. 580 [1915]). 2. To restrain the sale of conjugal properties where the claim can be annotated on the title as a lien such as the husband’s obligation to give support. (Saavedra v. Estrada 56 Phil. 33 [1931]) 3. Injunction beyond prayer in complaint (The Chief of Staff, AFP v. Guadiz, Jr., No. L35007, December 29, 1980, 101 SCRA 827) 4 5

To restrain a mayor proclaimed as duly elected from assuming his office. ( Cereno v. Dictado, No. L-81550, April 15, 1988, 160 SCRA 759.) To restrain consummated or ministerial acts: a. Not proper to restrain against disposing a case on the merits. (Government Service Insurance System (GSIS) v. Florendo, G.R. NO. 48603, September 29, 1989, 178 SCRA 76; Ortigas and Company Limited Partnership v. Court of Appeals, No. L-79128, June 16, 1988, 162 SCRA 165.) b. Not proper to stop the execution of judgment where the judgment was already executed. (Meneses v. Dinglasan, 81 Phil. 470 [1948]) c. The Regional Trial Court has no power to issue a writ of injunction against the Register of Deeds if its effect is to render nugatory a writ of execution issued by the National Labor Relations Commission. (Ambrosio v. Salvador, No. L-47651, December 11, 1978, 87 SCRA 217.) d. A writ of injunction is not proper to stop the execution of judgment where the judgment was already executed. (Meneses v. Dinglasan, 81 Phil. 470 [1948]) e. But where the lower court enforced its judgment before a party against whom the execution was enforced could elevate his or her appeal in an injunction suit, which was instituted to prevent said execution, an independent petition for injunction in the Court of Appeals is justified. (Manila Surety and Fidelity v. Teodoro, G.R. No. 20530, June 29, 1967, 20 SCRA 463) f. A writ of injunction should never issue when an action for damages would adequately compensate the injuries caused. The very foundation of the jurisdiction to issue the writ of injunction rests in the possibility of irreparable injury, inadequacy of pecuniary compensation and the prevention of the multiplicity of suits. Where facts are not shown to bring the case within these conditions, the reliefs of injunction should be refused. (Golding vs. Balabat, 36 Phil. 941)

Not allowed to transfer possession a. A court should not, by means of a preliminary injunction, transfer the property in litigation from the possession of one party to another where the legal title is in dispute and the party having possession asserts ownership thereto. (Toyota Motors Philippines Corporation v. Court of Appeals, G.R. No. 102881, Dec. 7, 1992, 216 SCRA 236). The function of injunction is to preserve the status quo ante. (Knecht v. Court of Appeals, G.R. No. 56122, November 18, 1993, 228 SCRA 1) b. The rule is predicated on the proposition that the ownership as well as the possession of the (properties) in dispute are the main issues and that the relief was prayed for before the issue had been decided on the merits. Before the issue is determined in the light of the evidence presented, justice and equity demand that the parties be maintained in their status Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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quo so that no advantage may be given to one to the prejudice of the other. Unless there is a clear pronouncement regarding ownership and possession of the land, or unless the land is covered by a torrens title pointing to one of the parties as the undisputed owner, a writ of preliminary injunction should not issue to take (the properties) out of the possession of one party to place it in the hand of another (Medina vs. Greenfield Dev’t Corporation, G.R. No. 140228, November 19, 2004; See also Cortez-Estrada vs. Samutm, G.R. No. 154407, February 14, 2005). c. The respondent is the registered owner of the property; hence, he is entitled to the possession thereof. As a rule, a writ of preliminary mandatory injunction is not granted to take property out of the possession or control of one party to be placed into that of another whose title has not been clearly established by law. (Almeida vs. Court of Appeals, G.R. No. 159124, January 17, 2005, 448 SCRA 681). Exceptions 1. Forcible entry in which the Court may issue preliminary mandatory injunction (Rules of Court, Rule 70, Sec. 15) and by Section 20 thereof involving leases in which the court may, on appeal, grant similar mandatory injunctive relief. The exception applies only to ejectment cases exclusively cognizable by the municipal trial court. (Ramos v. Court of appeals, G.R. 81354, July 26, 1988, 163 SCRA 583 ) Article 539, Civil Code: A possessor deprived of his possession through forcible entry may within 10 days from the filing of the complaint present a motion to secure from the competent court, in the action for forcible entry, a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within 30 days from filing thereof. 2.

Property covered by Torrens Title when there is a clear finding of ownership and possession of the land or unless the subject property is covered by a Torrens Title pointing to one of the parties as the undisputed owner. (GSIS v. Florendo, supra, note 329; Cagayan de Oro City Landless Residents Association, Inc. v. Court of Appeals, G.R. No. 106043, March 4, 1996, 254 SCRA 229)

When to decide main case after a higher court issues a writ of preliminary injunction against a lower court, board or tribunal : The trial court, the Court of Appeals, the Sandiganbayan or the Court of Tax Appeals that issued a writ of preliminary injunction against a lower court, board, officer or quasi-judicial agency shall decide the main case or the petition within SIX MONTHS from the issuance of the writ,. (Section 5, Rule 58, as amended by A.M. No. 07-7-12-SC which took effect on December 27, 2007) Purpose: in order not to unduly delay the main case lodged in a lower court.

h. In relation to RA 8975, Ban on issuance of TRO or Writ of Injunction in cases involving government infrastructure projects Statutory Prohibitions against the Issuance of a Writ of Preliminary Injunction or preliminary mandatory injunction Under Rep. Act No. 8975 (November 7, 2000) Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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The issuance of temporary restraining orders, preliminary injunctions, or preliminary mandatory injunctions against government infrastructure projects is prohibited under this law. Section 3, RA 8975 states that “No court, except the Supreme Court shall issue any TRO or preliminary injunction or preliminary mandatory injunction against the government, or any of its subdivisions or officials, whether public or private acting under the government direction to restrain, prohibit or compel the following acts: 1. Acquisition, clearance and development of the right-of-way and/or site or location of any national government project; 2. Bidding or awarding of contract/ project of the national government; 3. Commencement, prosecution, execution, implementation, operation of any such contract or project; 4. Termination or rescission of any such contract/project; and 5. The undertaking or authorization of any other lawful activity necessary for such contract/project. This law expressly repealed Presidential Decree No. 605 (prohibiting injunction involving concessions, licenses and other permits issued by public administrative office or bodies for the exploitation of natural resources) and Presidential Decree No. 1818 (prohibiting injunction in cases involving infrastructures and natural resources development and public utilities.

RA 8975 expressly prohibits any court, except the Supreme Court from issuing a TRO or a writ of preliminary injunction or preliminary mandatory injunction against a government contract or project acts. (Nerwin Industries v PNOC-Energy Dev't Corp, G.R. No. 167057, April 11, 2012) - LPB

i. Rule on prior or contemporaneous service of injunction

summons in relation to

Rule 58 Sec. 4. Verified application and bond for preliminary injunction or temporary restraining order. A preliminary injunction or temporary restraining order may be granted only when: (a) The application in the action or proceeding is verified, and shows facts entitling the applicant to the relief demanded; and (b) Unless exempted by the court, the applicant files with the court where the action or proceeding is pending, a bond executed to the party or person enjoined, in an amount to be fixed by the court, to the effect that the applicant will pay to such party or person all damages which he may sustain by reason of the injunction or temporary restraining order if the court should finally decide that the applicant was not entitled thereto. Upon approval of the requisite bond, a writ of preliminary injunction shall be issued. (4a) (c) When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint or initiatory pleading and the applicant’s affidavit and bond, upon the adverse party in the Philippines. However, where the summons could not be served personally or by substituted service despite diligent efforts, or the adverse party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof, the requirement of prior or contemporaneous service of summons shall not apply. EXCEPTIONS TO PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS (Rule 58, Sec. 4)

1. Summons could not be served personally or by substituted service despite diligent efforts; 2. Defendant is a resident of the Philippines temporarily absent therefrom; 3. Defendant is a non-resident of the Philippines N.B. Same exceptions to prior or contemporaneous service of summons in attachment, except that Sec. 5, Rule 57 includes a fourth ground: when the action is one in rem or quasi in rem. (d) The application for a temporary restraining order shall thereafter be acted upon only after all parties are heard in a summary hearing which shall be conducted within twenty-four (24) hours after the sheriff’s return of service and/or the records are received by the branch selected by raffle and to which the records shall be transmitted immediately.

Discretion in issuance of preliminary injunction 1. Strong arm of equity A preliminary injunction is an extraordinary event calculated to preserve or maintain the status quo of things ante litem and is generally availed of to prevent actual or threatened acts, until the merits of the case can be heard. Injunction is accepted as the strong arm of equity or a transcendent remedy. While generally the grant of a writ of preliminary injunction rests on the sound discretion of the trial court taking cognizance of the case, extreme caution must be observed. Every court should remember that an injunction is a limitation upon the freedom of action of the defendant and should not be granted lightly or precipitately. It should be granted only when the court is fully satisfied that the law permits it and the emergency demands it (Tayag vs. Lacson, March 25, 2004 426 SCRA 282).

No power exists whose exercise is more delicate, which requires greater caution and deliberation, or is more dangerous in a doubtful case, than the issuance of an injunction. The respondents’ right to injunctive relief has not been clearly and unmistakably demonstrated. The respondents have not presented evidence, testimonial or documentary, other than the bare allegations contained in their pleadings, to support their claim of fraud that brings about the Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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irreparable injury sought to be avoided by their application for injunctive relief. Thus, the RTC’s grant of the writ of preliminary injunction in favor of the respondents, despite the lack of any evidence of a clear and unmistakable right on their part, constitutes grave abuse of discretion amounting to lack of jurisdiction. (China Banking Corporation vs. Sps. Ciriaco, G.R. No. 170038, July 11, 2012)

2. Specifying basis of, necesssary The Court has ruled that the possibility of irreparable damage without proof of actual existing right is not a ground for an injunction. Where the complainant’s right is doubtful or disputed, injunction is not proper. Absent a clear legal right, the issuance of the injunctive relief constitutes grave abuse of discretion (Manila International Airport vs. Court of Appeals, February 14, 2003, 397 SCRA 348,; See also Tayag vs. Lacson, March 25, 2004). 3. No vested right to injunctive writ The issuance or recall of a preliminary writ of injunction is an interlocutory matter that remains at all times within the control of the court or quasi-judicial body that issued it. Thus, petitioners could not rightfully claim a vested right to an injunctive writ (Yu and Yuhico vs. The Orchard Golf and Country Club, Inc. et.al, G.R. No. 150335, March 1, 2007). The matter of the issuance of a writ of preliminary injunction is addressed to the sound discretion of the trial court unless the court committed a grave abuse of discretion (Toyota Motors Phil., Corporation Workers Association (TMPCWA) vs. Court of Appeals, September 24, 2003, 412 SCRA 69; Landbank of the Philippines vs. Continental Watchman Agency, Inc., January 22, 2004, 420 SCRA 624; Carlos A. Gothong Lines, Inc.vs. Court of Appeals, July 1, 2004, 433 SCRA 348). However, while generally the grant of a writ of preliminary injunction rests on the sound discretion of the trial court taking cognizance of the case, extreme caution must be observed in the exercise of such discretion (Tayag vs. Lacson, March 25, 2004, 426 SCRA 282). Remedy from order granting writ of preliminary injunction The order granting a writ of preliminary injunction is an interlocutory order. As such, it cannot by itself be subject of an appeal or a petition for review on certiorari (Landbank of the Philippines vs. Listana, Sr., August 5, 2003, 408 SCRA 328). An injunction duly issued must be obeyed however erroneous the action of the court may be until a higher court overrules such decision (Rosario Textile Mills, Inc. vs. Court of Appeals, August 25, 2003, 409 SCRA 515). MANDATORY INJUNCTION Strict requisites for mandatory injunction. Since it commands the performance of an act, a mandatory injunction does not preserve the status quo and is thus more cautiously regarded than a mere prohibitive injunction (Gateway Electronics Corporation vs. Land Bank of the Philippines, July 30, 2003, 407 SCRA 454,). Forum Shopping Where a party filed complaints in another Regional Trial Court for injunctive relief after another RTC had set aside the writ of preliminary injunction issued by it, he is guilty of forum Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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shopping (Philippine Commercial International Bank vs. Court of Appeals, July 17, 2003, 406 SCRA 575).

Decision on the merits, effect on writ of preliminary injunction The propriety of the Order of dismissal of civil case before the RTC should render moot and academic the petition for review of the Decision of the Court of Appeals. It is well settled that the issue of propriety of obtaining a preliminary injunction dies with the main case from which it logically sprang. Such a provisional remedy, like any other interlocutory order, cannot survive the main case of which it is but an incident. Indeed what more could this Court enjoin when the complaint has already been dismissed? (G & S Transport Corporation vs. Court Of Appeals, G.R. No. 120287, May 28, 2002).

5. Receivership Receiver defined Receiver is a representative of the court appointed for the purpose of PRESERVING AND CONSERVING the property in litigation and prevent its possible destruction or dissipation, if it were left in the possession of any of the parties. He is not the representative of any or the parties but by all of them to the end that their interests may be equally protected with the least possible inconvenience and expense. Grant of receivership must be with sufficient justification As early as 1914, the Court already enunciated the doctrinal pronouncement in Velasco & Co. v. Gochuico & Co. that courts must use utmost circumspection in allowing receivership. Also, petitioner is willing to post a counterbond in the amount to be fixed by the court based on Sec. 3, Rule 59 of the 1997 Rules of Civil Procedure. Anchored on this rule, the trial court should have dispensed with the services of the receiver, more so considering that the alleged fraud put forward to justify the receivership was not at all established. Lastly, since a notice of lis pendens has been annotated on the titles of the disputed properties, the rights of petitioners are amply safeguarded and preserved. Hence, there is no need for a receiver to look after the disputed properties (Vivares and Ignaling vs. Reyes, G.R. No. 155408, February 13, 2008).

a. Cases when receiver may be appointed Management and administration by receiver The records show that the petitioner was served with a copy of summons and the complaint, but failed to file its answer thereto. It also failed to file a verified motion to set aside the Order of default despite its receipt of a copy thereof. The PDIC was designated by the Central Bank of the Philippines as receiver (conservator) as early as January 14, 1998, and in the course of its management of the petitioner bank’s affairs, it should have known of the pendency of the case against the latter in the trial court. Moreover, the petitioner, through the PDIC, received a copy of the decision of the trial court on June 2, 1998, but did not bother filing a motion for partial reconsideration, under Rule 37 of the Rules of Court, appending thereto the orders of the Monetary Board or a motion to set aside the order of default. Instead, the petitioner appealed the decision, and even failed to assign as an error the default order of the trial court. The petitioner is, thus, barred from relying on the orders of the Monetary Board of the Central Bank of the Philippines placing its assets and affairs under receivership and ordering its liquidation (Rural Bank of Sta. Catalina, Inc. vs. Land Bank of the Philippines, G.R. No. 148019, July 26, 2004). Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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b. Requisites Rule 59, Section 1. Appointment of receiver. Upon a verified application, one or more receivers of the property subject of the action or proceeding may be appointed by the court where the action is pending, or by the Court of Appeals or by the Supreme Court, or a member thereof, in the following cases: (a) When it appears from the verified application, and such other proof as the court may require, that the party applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it; (b) When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage; (c) After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect; (d) Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation. During the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court of origin and the receiver appointed to be subject to the control of said court.

c. Requirements before issuance of an Order Rule 59, Sec. 2. Bond on appointment of receiver. Before issuing the order appointing a receiver the court shall require the applicant to file a bond executed to the party against whom the application is presented, in an amount to be fixed by the court, to the effect that the applicant will pay such party all damages he may sustain by reason of the appointment of such receiver in case the applicant shall have procured such appointment without sufficient cause; and the court may, in its discretion, at any time after the appointment, require an additional bond as further security for such damages. Requirements for appointment of a receiver 1, verified application (R59S1) 2. .bond (R59S2 and R59S5) Appointment of a Receiver The general rule is that neither party to the litigation should be appointed as a receiver without the consent of the other because a receiver is supposed to be an impartial and Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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disinterested person. (Alcantara v. Abbas, No. L-14890, September 30, 1963, 9 SCRA 54 ). A clerk of court should not be appointed as a receiver as he is already burdened with his official duties. (Abrigo v. Kayanan, No. L-28601, March 18, 1983, 121 SCRA 20)

d. General powers of a receiver Rule 59, Sec. 6. General powers of receiver. Subject to the control of the court in which the action or proceeding is pending, a receiver shall have the power to bring and defend, in such capacity, actions in his own name; to take and keep possession of the property in controversy; to receive rents; to collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver; to compound for and compromise the same; to make transfers; to pay outstanding debts; to divide the money and other property that shall remain among the persons legally entitled to receive the same; and generally to do such acts respecting the property as the court may authorize. However, funds in the hands of a receiver may be invested only by order of the court upon the written consent of all the parties to the action. No action may be filed by or against a receiver without leave of the court which appointed him. Acts prohibited during receivership and liquidation proceedings While it is true that foreclosure falls within the broad definition of “doing business,” that is: …a continuity of commercial dealings and arrangements and contemplates to that extent, the performance of acts or words or the exercise of some of the functions normally incident to and in progressive prosecution of the purpose and object of its organization. it should not be considered included, however, in the acts prohibited whenever banks are “prohibited from doing business” during receivership and liquidation proceedings. This is consistent with the purpose of receivership proceedings, i.e., to receive collectibles and preserve the assets of the bank in substitution of its former management, and prevent the dissipation of its assets to the detriment of the creditors of the bank. In both receivership and liquidation proceedings, the bank retains its juridical personality notwithstanding the closure of its business and may even be sued as its corporate existence is assumed by the receiver or liquidator. The receiver or liquidator meanwhile acts not only for the benefit of the bank, but for its creditors as well (Sps. Larrobis vs. Philippine Veterans Bank, G.R. No. 135706, October 12, 2004). Bank bound by the acts, or failure to act of its receiver A bank is bound by the acts, or failure to act of its receiver. As we held in Philippine Veterans Bank vs. NLRC (G.R. No. 130439, October 26, 1999, 317 SCRA 510) a labor case which also involved respondent bank, … all the acts of the receiver and liquidator pertain to petitioner, both having assumed petitioner’s corporate existence. Petitioner cannot disclaim liability by arguing that the non-payment of MOLINA’s just wages was committed by the liquidators during the liquidation period. Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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However, the bank may go after the receiver who is liable to it for any culpable or negligent failure to collect the assets of such bank and to safeguard its assets (Sps. Larrobis vs. Philippine Veterans Bank, October 12, 2004, G.R. No. 135706 ). Effect of receivership on loans In Banco Filipino Savings and Mortgage Bank v. Monetary Board (G.R. No. 70054, December 11, 1991, 204 SCRA 767, 789), the validity of the closure and receivership of Banco Filipino was put in issue. But the pendency of the case did not diminish the authority of the designated liquidator to administer and continue the bank’s transactions. The Court allowed the bank’s liquidator to continue receiving collectibles and receivables or paying off creditor’s claims and other transactions pertaining to normal operations of a bank. Among these transactions were the prosecution of suits against debtors for collection and for foreclosure of mortgages. The bank was allowed to collect interests on its loans while under liquidation, provided that the interests were legal (Banco Filipino Savings and Mortgage Bank vs. Ybañez, G.R. No. 148163, December 6, 2004). Power to contract limited during receivership In all, respondent bank’s receiver was without any power to approve or ratify the “exclusive option to purchase” granted by the late Vicente G. Puyat, who, in the first place, was himself bereft of any authority, to bind the bank under such exclusive option. Respondent Manila Bank may not thus be compelled to sell the land and building in question to petitioner Abacus under the terms of the latter’s “exclusive option to purchase”. (Abacus Real Estate Development Center, Inc., vs. The Manila Banking Corporation, G.R. No. 162270 , 2005 April 6, 2005). Obligation to pay interest subsists even under receivership When a bank is placed under receivership, it would only not be able to do new business, that is, to grant new loans or to accept new deposits. However, the receiver of the bank is in fact obliged to collect debts owing to the bank, which debts form part of the assets of the bank. Thus, petitioners’ obligation to pay interest subsists even when respondent was placed under receivership. The respondent’s receivership is an extraneous circumstance and has no effect on petitioners’ obligation (Sps Aguilar vs. The Manila Banking Corporation, G.R. No. 157911, September 19, 2006). To institute action: a general power of a receiver One of the general powers of a receiver under Rule 59, Section 6 of the Rules of Court is the power to bring and defend suits in such capacity. Petitioner also contends that an action filed by a successor-receiver against him as predecessor-receiver is not allowed under Rule 59, Section 6 without leave of court which appointed him; as Section 6 provides that “no action may be filed by or against a receiver without leave of the court which appointed him.” This is bereft of merit. The rule talks of the current receiver of the company and not the previous receiver like petitioner Orendain. The reason behind Rule 59, Section 6, which requires leave of court for all suits by or against the present receiver, is to forestall any undue interference with the receiver’s performance of duties through improvident suits. Apparently, such situation cannot apply to Orendain who is no longer BF Homes’ receiver (Orendain vs. BF Homes, Inc., G.R. No. 146313, October 31, 2006). Sequestration akin to a receivership: mere powers of administration A sequestration order is similar to the provisional remedy of Receivership under Rule 59 of the Rules of Court. The PCGG may thus exercise only powers of administration over the Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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property or business sequestered or provisionally taken over so as to bring and defend actions in its own name; receive rents; collect debts due; pay outstanding debts; and generally do such other acts and things as may be necessary to fulfill its mission as conservator and administrator (Pacific Basin Securities Co, Inc. vs. Oriental Petroleum and Minerals Corp. G.R. No. 143972 & G.R. No. 144631, August 31, 2007). Where a bank, through the PDIC which was earlier designated by the Central Bank of the Philippines a receiver (conservator), received a copy of a decision of the trial court but did not bother filing a motion for partial reconsideration, appending thereto the orders of the Monetary Board or a motion to set aside the earlier order of default, it is barred from relying on the orders of the Monetary Board placing its assets and affairs under receivership and ordering its liquidation (Rural Bank of Sta. Catalina, Inc. vs. Land Bank of the Philippines, July 2004, 435 SCRA 183).

e. Two (2) kinds (actually 3 kinds)of bonds 1. applicant’s bond (Rule 59, Sec. 2) 2. counterbond (Rule 59, Sec. 3) 3. receiver’s bond (Rule 59, Sec. 4)

f. Termination of receivership Rule 59, Sec. 8. Termination of receivership; compensation of receiver. Whenever the court, motu proprio or on motion of either party, shall determine that the necessity for a receiver no longer exists, it shall, after due notice to all interested parties and hearing, settle the accounts of the receiver, direct the delivery of the funds and other property in his possession to the person adjudged to be entitled to receive them, and order the discharge of the receiver from further duty as such. The court shall allow the receiver such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires. Receivership other than that under Rule 58 1. Receivership in aid of execution of judgment under Rule 39, Sec. 1 2. Bank receivership 3. Receivership in petitions for insolvency under the Insolvency Law Specific situations when a receiver may be appointed 1. If a spouse, without just cause, abandons the other or fails to comply with his or his obligations to the family, the aggrieved spouse may petition the court for receivership (Family Code, Article 101). 2. The court may appoint a receiver of the property of the judgment obligor; and it may also forbid the transfer or other disposition of, or any interference with, the property of the judgment obligor not exempt from execution (R39S41). 3. After the perfection of an appeal, the trial court retains jurisdiction to appoint a receiver of the property under litigation since his matter does not touch upon the subject of the appeal (R41S9; Acuña v. Caluag, 101 Phil. 446 [1957]). 4. After final judgment, a receiver may be appointed as an aid to the execution of judgment. (Philippine Trust Company v. Santamaria, 53 Phil. 463 [1929]) 5. Appointment of a receiver over the property in custodia legis may be allowed when it is justified by special circumstances as when it is reasonably necessary to secure Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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and protect the rights of the real owner (Dolar v. Sundiam, No. L-27631, April 30, 1971, 38 SCRA 616). 6. In a petition for corporate rehabilitation, when the court finds the same to be sufficient in form and substance, the Court shall, within five days from filing of the petition appoint a Rehabilitation Receive and fix his bond. (Rules of Procedure on Corporate Rehabilitation, 2008)

6. Replevin What is replevin? Replevin or delivery of personal property consists in the delivery, by order of the court, of personal property by the defendant to the plaintiff upon filing of a bond. Replevin is an action whereby the owner or person entitled to repossession of goods or chattels may recover those goods or chattels from one who has wrongfully distrained or taken, or who wrongfully detains such goods or chattels. It is designed to permit one having right to possession to recover property in specie from one who has wrongfully taken or detained the property. The term may refer either to the action itself, for the recovery of personalty, or to the provisional remedy traditionally associated with it, by which possession of the property may be obtained by the plaintiff and retained during the pendency of the action Facts that must be alleged in the application for replevin An application for replevin must show that the property is not -1. distrained, 2. taken for a tax assessment or a fine pursuant to law, 3. seized under a writ of execution or preliminary attachment, or 4. placed under custodia legis (Vda. De Danao vs. Ginete, January 21, 2003, 395 SCRA 542).

Preliminary Attachment Available even if recovery of personal property is only incidental relief in the action Can be resorted to even if personal property is in the custody of a third person Extends to all kinds of property To recover possession of personal property unjustly detained; Presupposes that it is being concealed, removed, or disposed to prevent its being found or taken by the applicant Can be resorted to even if property is in custodia legis

Replevin Available only if principal relief sought is recovery of personal property; Relief for damages are only incidental Can be sought only where defendant is in actual or constructive possession of the personality involved Extends only to personal property capable of manual delivery To recover personal property even if it is not being concealed, removed, or disposed of

Cannot be availed of if property is under custodia legis

Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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a. When may writ be issued b. Requisites Steps in the Issuance and Implementation of a Writ of Replevin 1. A party praying for the recovery of possession of a personal property files with the court at the commencement of the action or before answer an APPLICATION for a writ of replevin. (R60S1) 2. To accompany the application is the AFFIDAVIT which should state: a) that the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof; b) that the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of knowledge, information, and belief; c) that the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized , that it is exempt from such seizure or custody; and d) the actual market value of the property (R60S2) 3. The applicant must give a BOND, executed to the adverse party in double the value of the property as stated in the affidavit (R60S2)

NOTES: 1) The applicant for a writ of replevin need not be the owner for it is enough that he has a right to posses it. (Yang v. Valdez, G.R. No. 73317, August 31, 1989, 177 SCRA 141) 2) Replevin cannot be availed of if the property is in custodia legis or where it is under attachment or was seized under a search warrant (Pagkalinawan v. Gomez, Nos. L22585, December 16, 1967, 21 SCRA 1275; Rules of Court, Rule 60, Sec. 2 ( c ) Except: a) when the seizure is illegal (Bagalihog v. Fernandez, G.R. No. 96356, June 27, 1991, 198 SCRA 614) and b) where there is reason to believe that the seizure will not anymore be followed by the filing of the criminal action in court or there are conflicting claims (Chua v. Court of Appeals, G.R. No. 79021, May 17, 1993, 222 SCRA 85) 3) The defendant is entitled to the return of the property taken under a writ of replevin if the following requisites are met: a) b) c) d)

he posts a redelivery bond he furnishes the plaintiff of a copy of the undertaking within five days from taking and the bond is sufficient and in proper form. (R60S5 and 6)

Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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4) When there was no seizure despite issuance of writ For failure to pay four successive installments from May 15, 2002 to August 15, 2002, respondent, through counsel, sent to petitioners a demand letter dated August 29, 2002, declaring the entire obligation as due and demandable and requiring to pay Php576,664.04, or surrender the mortgaged vehicle immediately upon receiving the letter. As the demand was left unheeded, respondent filed on October 4, 2002 an action for Replevin and Damages before the Manila Regional Trial Court (RTC).However, the vehicle was never recovered and delivered to respondent despite the issuance of a writ of replevin. As there was no seizure that transpired, it cannot be said that petitioners were deprived of the use and enjoyment of the mortgaged vehicle or that respondent pursued, commenced or concluded its actual foreclosure. The trial court, therefore, rightfully granted the alternative prayer for sum of money, which is equivalent to the remedy of "exacting fulfillment of the obligation." Certainly, there is no double recovery or unjust enrichment to speak of. (Sps Agner vs. BPI Family Savings Bank, Inc., G.R. No. 182963, June 3, 2013) 1âw phi 1(

N.B. In customs cases, the RTC has no jurisdiction to take cognizance of the petition for replevin by respondents, issue the writ of replevin and order its enforcement. The Collector of Customs had already seized the vehicles and set the sale thereof at public auction. The RTC should have dismissed the petition for replevin at the outset. By granting the plea of respondents (plaintiffs below) for the seizure of the vehicles and the transfer of custody to the court, the RTC acted without jurisdiction over the action and the vehicles subject matter thereof. The forfeiture of seized goods in the Bureau of Customs is a proceeding against the goods and not against the owner. It is in the nature of a proceeding in rem, i.e., directed against the res or imported articles and entails a determination of the legality of their importation. In this proceeding, it is, in legal contemplation, the property itself which commits the violation and is treated as the offender, without reference whatsoever to the character or conduct of the owner (Asian Terminals, Inc. vs. Bautista-Ricafort, G.R. No. 166901, October 27, 2006).

c. Affidavit and bond; Redelivery Bond Rule 60, Sec. 2. Affidavit and bond. The applicant must show by his own affidavit or that of some other person who personally knows the facts: a) That the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof; b) That the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information, and belief; c) That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; and d) The actual market value of the property. The applicant must also give a bond, executed to the adverse party in DOUBLE THE VALUE of the property as stated in the affidavit aforementioned, for the return of the property to the adverse party if such return be adjudged, and for the payment to the adverse party of such sum as he may recover from the applicant in the action. Order of Replevin Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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1)

Upon the filing of such affidavit and approval of the bond, the court shall issue an ORDER and the corresponding WRIT OF REPLEVIN describing the personal property alleged to be wrongfully detained and requiring the sheriff forthwith to take such property into his custody. (R60S3) 2) A writ of replevin may be served anywhere in the Philippines Redelivery bond If the adverse party objects to the sufficiency of the applicant’s bond, or of the surety or sureties thereon, he cannot immediately require the return of the property. But if he does not so object, he may, at any time before the delivery of the property to the applicant, require the return thereof, by filing with the court where the action is pending a redelivery bond—that is, a bond executed to the applicant: 1. In DOUBLE THE VALUE of the property as stated in the applicant’s affidavit for the delivery of the property to the applicant, if such delivery be adjudged; and 2. For the payment of such sum to him as may be recovered against the adverse party; and 3. By serving a copy of such bond on the applicant.(R60S5)

d. Sheriff’s duty in the implementation of the writ; when property is claimed by third party Rule 60, Sec. 4. Duty of the sheriff. Upon receiving such order, the sheriff must serve a copy thereof on the adverse party, together with a copy of the application, affidavit and bond, and must forthwith take the property, if it be in the possession of the adverse party, or his agent, and retain it in his custody. If the property or any part thereof be concealed in a building or enclosure, the sheriff must demand its delivery, and if it be not delivered, he must cause the building or enclosure to be broken open and take the property into his possession. After the sheriff has taken possession of the property as herein provided, he must keep it in a secure place and shall be responsible for its delivery to the party entitled thereto upon receiving his fees and necessary expenses for taking and keeping the same.

Disposition of property by sheriff 1) The sheriff shall retain the property for 5 days. The adverse party may object to the sufficiency of the bond or surety or he may file a redelivery bond. 2) If after 5 days and the adverse party failed to object or his redelivery bon is insufficient, the sheriff shall deliver the property to the applicant (R60S6) 3)The defendant is entitled to the return of the property under writ of replevin if: a. He seasonably posts a redelivery bond (R60S5) b. Plaintiff’s bond is found to be insufficient or defective and is not replaced with a proper bond. c. Property is not delivered to plaintiff for any reason (R60S6) Rule 60, Sec. 7. Proceedings where property claimed by third person.  The third person against whom the writ or replevin had been issued must make an • AFFIDAVIT of his title thereto, or right to the possession thereof, • stating the grounds of such right or title, and • serves such affidavit upon the sheriff while the latter has possession of the property and a copy thereof upon the applicant The sheriff shall not be bound to keep the property as a general rule. Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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 The sheriff is bound to keep the property when the applicant, on demand of the sheriff, files a BOND approved by the court to INDEMNIFY the third-party claimant in a sum not less than the value of the property under replevin (indemnity bond)  In case of disagreement as to such value, the court shall determine the same  No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond.  The sheriff shall not be liable for damages for the taking or keeping of such property, to any such third-party claimant, if such bond is filed.  The proceedings set forth above shall not prevent such claimant or any third person from vindicating his claim to the property, in the same or a separate action.  or prevent the applicant from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or a separate action.  When the writ of replevin is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff is sued for damages as a result of the attachment, he shall be represented by the Solicitor General, and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose.

S. Special Civil Actions 1. Nature of special civil actions A special civil action is a civil action which aside from being governed by the rules for ordinary civil action is subject to specific rules provided for it. •

How commenced: o COMPLAINT – Rules 62, 67, 68, 69, 70 a. interpleader b. expropriation c. foreclosure of real estate mortgage d. partition e. forcible entry and unlawful detainer o PETITION (DRCPMQC) – Rules 63 to 66, 71 a. declaratory relief b. review of adjudications of Comelec and COA c. certiorari Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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d. prohibition e. mandamus f. quo warranto g .contempt •

Writs of injunction, certiorari, mandamus, prohibition, quo warranto and habeas corpus issued by the RTCs are enforceable within their respective judicial regions (BP 129).

2. Ordinary civil actions versus special civil actions An ordinary civil action is governed by the rules for ordinary civil actions while a special civil action is governed by the rules for ordinary civil actions and by specific rules. Every ordinary civil action must be based on a cause of action, while not every special civil action must be based on a cause of action, as for instance, declaratory relief. (PrimerReviewer on Remedial Law, Manuel R. Riguera, First Edition, p. 462) ORDINARY CIVIL ACTIONS Governed by rules for ordinary civil actions Must be based on a cause of action meaning an act or omission has violated the rights of another

May be filed initially in either the MTC or RTC depending upon the jurisdiction amount or the nature of the action. Ordinary civil actions are filed as complaints.

SPECIAL CIVIL ACTIONS Generally governed by rules for ordinary civil actions but subject to special rules Not necessarily such as in certain special civil actions: 1. Declaratory relief – no actual violation of rights 2. Interpleader – no interest in the subject matter There are some special civil actions which cannot be commenced in the MTC, i.e. petitions for certiorari, prohibition and mandamus Some special civil actions are filed as complaints, but others are filed as petitions

3. Jurisdiction and venue •

Venue is governed by the general rules on venue, except as otherwise indicated in the particular rules for special civil actions.

•

Special civil actions within the jurisdiction of first level courts: 1. quieting of title if the assessed value is within its jurisdiction 2. partition, if the assessed value is within its jurisdiction (Russel vs. Vestil, March 17, 1999) 3. ejectment suits (Rule 70) 4. contempt (Rule 71)

4. Interpleader Definition • •

A remedy whereby a person who has property in his possession or has an obligation to render wholly or partially, without claiming any right in both, Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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• •

comes to court and asks that the defendants who have made conflicting claims upon the same property or who consider themselves entitled to demand compliance with the obligation be required to litigate among themselves in order to determine who is entitled to the property or payment of the obligation (Beltran vs. PHHC, 1969).

Purpose • To compel conflicting claimants to interplead and litigate their several claims among themselves (R62S1) • To protect a person not against double liability but against a double vexation in respect of one’s liability (Beltran vs. PHHC)

a. Requisites for interpleader 1) The plaintiff claims no interest in the subject matter or, his claim is not disputed; 2) There must at least be two (2) or more CONFLICTING CLAIMANTS; 3) The parties to be interpleaded must make effective claims; and 4) The subject matter must be one and the same and derived from the same source.(Feria, (2001) Civil Procedure Annotated ,Vol.2, p.425)

Procedural Features 1. Upon the filing of the complaint, the court shall issue an order requiring the conflicting claimants to interplead with one another. (R62S2 ) 2. If the interest of justice so require.the court may direct in the same order that the subject matter of the suit be paid or delivered to the court. (R62S2) 3. The summons shall be accompanied by copies of the complaint and order.(R62S3) 4. The defendants may file a motion to dismiss on the ground of the impropriety of the interpleader action or on other appropriate grounds specified in Rule 16.(R62S4) 5. If the motion is denied. the movant may file his answer within the remaining period but which shall not be less than five days in any event reckoned from the notice of denial (R62S4) 6. Each defendant shall file his answer within 15 days from service of summons and shall serve a copy of the answer not only on the plaintiff but also on the codefendants who may file their reply thereto.(R62S5) 7. The effect of failure to plead within the prescribed period is that, upon motion, the defendant will be declared in default and thereafter, the court will render judgment barring him from any claim in respect of the subject matter.(R62S5)

b. When to file 1. Interpleader was found to be a proper action in an action by a lessee who does not know to whom to pay rentals due to conflicting claims on the property; (Pagkalinawan v. Rodas, 80 Phil. 281 [1948]) and in an action by a bank where the purchaser of a cashier’s check claims it was lost and another has presented it for payment. (Mesina v. Intermediate Apéllate Court, No. L-70145, November 13, 1986, 145 SCRA 497) It was Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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however found to be improper in an action where defendants had conflicting claims against the plaintiff (Beltran v. People’s Homesite and Housing Corporation, No. L25138, August 28, 1969, 29 SCRA 145), in an action where one of the defendants had earlier sued the plaintiff and secured a judgment against him which has already become final, the action being barred by laches or unreasonable delay (Wack Wack Golf and Country Club, Inc. v. Won, No. L-23851, March 26; 1976, 70 SCRA 165.), and in an action where there are no conflicting claims among the defendants, their respective claims being separate and distinct from each other. Hence, the complaint for interpleader may be dismissed for lack of cause of action (Vda. De Camilo vs. Aranio, L15653, September 29, 1961). 2. The parties in an interpleader action may file counterclaims, cross-claims, third party complaints and responsive pleadings in the same action, as provided in the second paragraph of Section 5 of Rule 62 in the interest of a complete adjudication of the controversy and its incidents. (Arreza v. Diaz, Jr. , GR No. 133113, August 30, 2001). Interpleader may be initiated through an answer The remedy of an action of interpleader is designed to protect a person against double vexation in respect of a single liability. It requires, as an indispensable requisite, that conflicting claims upon the same subject matter are or may be made against the stakeholder (the possessor of the subject matter) who claims no interest whatever in the subject matter or an interest which in whole or in part is not disputed by the claimants Through this remedy, the stakeholder can join all competing claimants in a single proceeding to determine conflicting claims without exposing the stakeholder to the possibility of having to pay more than once on a single liability. When the court orders that the claimants litigate among themselves, in reality a new action arises, where the claims of the interpleaders themselves are brought to the fore, the stakeholder as plaintiff is relegated merely to the role of initiating the suit. In short, the remedy of interpleader, when proper, merely provides an avenue for the conflicting claims on the same subject matter to be threshed out in an action. What is quite unique in this case is that the BSP did not initiate the interpleader suit through an original complaint but through its Answer. Apart from a pleading, the rules allow a party to seek an affirmative relief from the court through the procedural device of a motion. While captioned "Answer with counter complaint/cross-claim for interpleader," the RTC understood this as in the nature of a motion, seeking relief which essentially consists in an order for the conflicting claimants to litigate with each other so that "payment is made to the rightful or legitimate owner" of the subject CB bills.The rules define a "civil action" as "one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong." Interpleader may be considered as a stakeholder’s remedy to prevent a wrong, that is, from making payment to one not entitled to it, thereby rendering itself vulnerable to lawsuit/s from those legally entitled to payment.. (Bank of Commerce vs. Planters Development Bank and Bangko Sentral ng Pilipinas, G.R. Nos. 154470-71, September 24, 2012) Interpleader together with comment-in-intervention On August 13, 2010, respondent SM Prime Holdings filed in Civil Case No. CEB-35529 a Motion for Leave to File and Admit Attached Comment-in-Intervention. In its Comment-inIntervention With Interpleader, respondent prayed that the judgment on the validity and constitutionality of Sections 13 and 14 of R.A. No. 9167 include a pronouncement on its rights and duties as a consequence of such judgment, as it clearly has a legal interest in the success Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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of either party in the case. In this case, what petitioner Film Development Council of the Philippines failed to take into account is that the Cebu City RTC allowed respondent to intervene in Civil Case No. CEB35529 by way of an interpleader action as to which government entity – whether petitioner or the Cebu City Government – should have remitted the amusement taxes it collected from the admission fees of graded films shown in respondent’s cinemas in Cebu City (Film Development Council of the Philippines vs. SM Prime Holdings, Inc., G.R. No. 197937, April 3, 2013)

5. Declaratory Reliefs and Similar Remedies What is declaratory relief? A declaratory relief is an action which any person interested under a deed, will, contract, or other written instrument, or whose rights are affected by a statute. executive order or regulation, or ordinance may, BEFORE BREACH OR VIOLATION thereof, bring to determine any question of construction or validity arising from the instrument or statute and for a DECLARATION of his RIGHTS or DUTIES thereunder (Mirandon vs. Wellington Ty & Bros., Inc., 81 SCRA 506 [1978]). Distinguish declaratory relief from interpleader 1. Interpleader - filed by a person who claims NO INTEREST whatsoever in the subject matter. 2. Declaratory relief - party seeking relief has LEGAL INTEREST in the controversy. RTC has original jurisdiction The Supreme Court assumes no jurisdiction over petitions for declaratory relief. These petitions must be filed wth the RTC, which has original jurisdiction over the same (In re: Bermudez, 145 SCRA 160 [1986]).

a. Who may file the action Rule 63, Section 1. Who may file petition. Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder. An action for the reformation of an instrument, to quiet title to real property or remove clouds therefrom, or to consolidate ownership under Article 1607 of the Civil Code, may be brought under this Rule. Rule 63, Sec. 2. Parties. All persons who have or claim any interest which would be affected by the declaration shall be made parties; and no declaration shall, except as otherwise provided in these Rules, prejudice the rights of persons not parties to the action. Procedural Features 1. The petition must be filed before there is a breach of contract or violation of the statute of ordinance. (Rule 63, Sec. 1) Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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2. A third-party complaint is not allowed. (Commissioner of Customs v. Cloribel, No. L21036, June 30, 1977, 77 SCRA 459)) 3. Except in actions for quieting of title, the court’s action in an action for declaratory relief is discretionary. Thus, the court, motu proprio or upon motion, may refuse to exercise the power to declare rights and to construe instruments in any case where a decision would not terminate the uncertainty or controversy which gave rise to the action or in any case where the declaration or construction is not necessary under the circumstances. (Rule 63, Sec. 5) 4. When a statute, executive order or any government regulation or ordinance is alleged to be unconstitutional, the Solicitor-General should be notified by the party assailing the same. (Rule 63, Sec. 3) 5. If the validity of a local government ordinance is in question, the prosecutor or attorney of the local government should be notified. (Rule 63, Sec. 3) 6. A compulsory counterclaim is allowed. (Visayan Packing Corp. v. Reparations Commission, GR No. L-29673, November 12, 1987) 7. When there is a breach of contract or violation of a statute or ordinance before the final termination of the case, the case is converted into an ordinary action. ( Rule 63, Section 6)

b. Requisites of action for declaratory relief 1. The subject matter of the controversy must be a deed, will, contract or other written instrument, statute, executive order or regulation, or ordinance; 2. The terms of said documents and the validity thereof are doubtful and require judicial construction; 3. There must have been no breach of the documents in question; 4. There must be an actual justiciable controversy or the "ripening seeds" of one between persons whose interests are adverse; 5. The issue must be ripe for judicial determination; and 6. Adequate relief is not available through other means or other forms of action or proceeding. While the first, second, and third requirements appear to exist in this case, the fourth, fifth, and sixth requirements, however, remain wanting. As to the fourth requisite, there is serious doubt that an actual justiciable controversy or the "ripening seeds" of one exists in this case. A justiciable controversy refers to an existing case or controversy that is appropriate or ripe for judicial determination, not one that is conjectural or merely anticipatory. Corollary thereto, by "ripening seeds" it is meant that a dispute may be tried at its inception before it has accumulated the asperity, distemper, animosity, passion, and violence of a full blown battle that looms ahead. The concept describes a state of facts indicating imminent and inevitable litigation provided that the issue is not settled and stabilized by tranquilizing declaration. A perusal of private respondents’ petition for declaratory relief would show that they have failed to demonstrate how they are left to sustain or are in immediate danger to sustain some direct injury as a result of the enforcement of the assailed provisions of RA 9372 (Human Security Act of 2007). As held in Southern Hemisphere Engagement Network, Inc. vs. Anti-Terrorism Council (G.R. Nos. 178552, 178554, 178581, 178890, 179157 & 179461, October 5, 2010), Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the Court has no original jurisdiction. Then again, declaratory actions characterized by "double contingency," where both the activity the petitioners intend to undertake and the anticipated reaction to it of a public official are merely theorized, lie beyond judicial review for lack of ripeness.1âwphi1 Thus, in the same light that the Court dismissed the SC petitions in the Southern Hemisphere cases on the basis of, among others, lack of actual justiciable controversy (or the ripening seeds of one), the RTC should have dismissed private respondents’ petition for declaratory relief all the same. Private respondents also lack the required locus standi to mount their constitutional challenge against the implementation of the above-stated provisions of RA 9372 since they have not shown any direct and personal interest in the case. As to the fifth requisite for an action for declaratory relief, neither can it be inferred that the controversy at hand is ripe for adjudication since the possibility of abuse, based on the above-discussed allegations in private respondents’ petition, remain highly-speculative and merely theorized. A question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. Finally, as regards the sixth requisite, the Court finds it irrelevant to proceed with a discussion on the availability of adequate reliefs since no impending threat or injury to the private respondents exists in the first place. (Republic vs. Roque, G.R. No. 204603, September 24, 2013) When declaratory relief proper The requirements of an action for declaratory relief are as follows: (1) there must be a justiciable controversy; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy; and (4) the issue involved must be ripe for judicial determination. We find that the Petition filed by respondent before the lower court meets these requirements. First, the subject of the controversy is the constitutionality of CMO 27-2003 issued by petitioner Commissioner of Customs. In Smart Communications v. NTC, we held: The determination of whether a specific rule or set of rules issued by an administrative agency contravenes the law or the constitution is within the jurisdiction of the regular courts. Indeed, the Constitution vests the power of judicial review or the power to declare a law, treaty, international or executive agreement, presidential decree, order, instruction, ordinance, or regulation in the courts, including the regional trial courts. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government Second, the controversy is between two parties that have adverse interests. Petitioners are summarily imposing a tariff rate that respondent is refusing to pay. Third, respondent has a legal and substantive interest in the implementation of CMO 27-2003. Respondent has adequately shown that, as a regular importer of wheat, on 14 August 2003, it has actually made shipments of wheat from China to Subic. The shipment was set to arrive in December 2003. Upon its arrival, it would be subjected to the conditions of CMO 27-2003. The regulation calls for the imposition of different tariff rates, depending on the factors enumerated therein. Thus, respondent alleged that it would be made to pay the 7% tariff applied to feed grade wheat, instead of the 3% tariff on food grade wheat. Finally, the issue raised by respondent is ripe for judicial determination, because litigation is inevitable for the simple reason that respondent is not included in the enumeration of flour Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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millers classified as food grade wheat importers. Thus, as the trial court stated, it would have to file a protest case each time it imports food grade wheat and be subjected to the 7% tariff. (Commissioner of Customs vs. Hypermix Feeds Corporation, G.R. No. 179579, February 1, 2012) When declaratory relief proper remedy Believing that litigation would inevitably arise from this dispute, Citibank and BA each filed a petition for declaratory relief before the Court of First Instance (now the Regional Trial Court) of Rizal on July 19, 1979 and December 11, 1979, respectively. In their petitions, Citibank and BA sought a declaratory judgment stating that the money placements they received from their head office and other foreign branches were not deposits and did not give rise to insurable deposit liabilities under Sections 3 and 4 of R.A. No. 3591 (the PDIC Charter) and, as a consequence, the deficiency assessments made by PDIC were improper and erroneous. On June 29, 1998, the Regional Trial Court, Branch 163, Pasig City (RTC) promulgated its Decision in favor of Citibank and BA, ruling that the subject money placements were not deposits and did not give rise to insurable deposit liabilities, and that the deficiency assessments issued by PDIC were improper and erroneous. Therefore, Citibank and BA were not liable to pay the same. The Court of Appeals affirmed the RTC decision, and the Supreme Court, in turn, affirmed the CA decision. (Philippine Deposit Insurance Corporation vs.Citibank, N.A., G.R. No. 170290, April 11, 2012) Petition for declaratory relief treated as one for mandamus. As we emphatically stated in the 28 June 2011 Decision, the interpretation of the term "capital" in Section 11, Article XII of the Constitution has far-reaching implications to the national economy. In fact, a resolution of this issue will determine whether Filipinos are masters, or second-class citizens, in their own country. What is at stake here is whether Filipinos or foreigners will have effective control of the Philippine national economy. Indeed, if ever there is a legal issue that has far-reaching implications to the entire nation, and to future generations of Filipinos, it is the threshold legal issue presented in this case. Contrary to Pangilinan’s narrow view, the serious economic consequences resulting in the interpretation of the term "capital" in Section 11, Article XII of the Constitution undoubtedly demand an immediate adjudication of this issue. Simply put, the far-reaching implications of this issue justify the treatment of the petition as one for mandamus. (Gamboa vs.Teves G.R. No. 176579, October 9, 2012)

c. When court may refuse to make judicial declaration Rule 63, Sec. 5. Court action discretionary. Except in actions falling under the second paragraph of section 1 of this Rule, the court, motu proprio or upon motion, may refuse to exercise the power to declare rights and to construe instruments in any case where a decision would not terminate the uncertainty or controversy which gave rise to the action, or in any case where the declaration or construction is not necessary and proper under the circumstances. When is the remedy improper? Where there is a BREACH of a contract, or VIOLATION of a statute or right. Once there is a breach, the remedy is no longer an action for declaratory relief but some other remedy. Declaratory Relief Improper in the Following Cases: Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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1. to obtain judicial declaration of citizenship (Dy Poco v. Commissioner of Immigration, No. L-22313, March 31, 1966, 16 SCRA 615; Singson vs. Republic, No. L-21855, January 30, 1968, 22 SCRA 353); 2. to determine the validity or construction to be placed on a registration certificate (Obiles v. Republic, supra.) 3. to seek relief on moot questions or to resolve hypothetical, abstract or theoretical questions, or to decide claims which are uncertain (Lim v. Republic, No. L-29535, February 27, 1971, 37 SCRA 783); 4. to resolve political issues or questions (Dela Llana v. Commission on Elections, No. L-47245, December 9, 1977, 80 SCRA 525) 5. to test the correctness or validity of a court decision (Tanda v. Aldaya, 52 O.G. No. 11,5175 (September 15, 1956) 6. to determine hereditary rights (Edades v. Edades, 52 O.G. No. 11, 5149 (September 15, 1956) 7. when the petition is based upon the happening of a contingent event; 8. when the petitioner is not the real party in interest (Santos v. Aquino, 94 Phil. 65 [1953]) 9. when administrative remedies have not yet been exhausted. (Ollada v. Central Bank, No. L-11357, May 31, 1962, 5 SCRA 297) 10. when the action purports to be a declaratory relief allegedly because the terms of certain ordinances were ambiguous but is, in reality, a petition for the declaration of nullity of these ordinances. (Santos vs. Aquino ,the Municipal Council of Malabon, G.R. No. L5101, November 28, 1953) 11. when judgment would have to be made, only after a judicial investigation of the disputed issues rather than a construction of definite stated rights, status and other relations, commonly expressed in written instruments. In this case, what was sought was the declaration that the private respondent was a corporation and that it was separate and distinct from C.F. Sharp Kabushiki Kaisha and that, therefore, it was not liable for the latter’s indebtedness (Kawasaki Port Service Corp. v. Amores, GR No. L-58340 ,July 16, 1991). Even when the action is for a declaratory judgment, the court may grant such affirmative relief as may be warranted by the evidence when the allegations in the complaint are sufficient to make out a case for specific performance or recovery of property with claims for damages, and the defendants did not raise an issue in the trial court to challenge the remedy or the form of the action availed of. (Adlawan v. IAC, G.R. No. 73022 February 9, 1989 ) A third-party complaint is not proper when the main case is for a declaratory relief. This is because in a third-party complaint, the defendant or third-party plaintiff is supposed to seek contribution, indemnity, subrogation or any other relief from the thirdparty defendant in respect of the claim of the plaintiff against him. (Customs v. Cloribel, G.R. No. L-21036 June 30, 1977) The non-joinder of persons who may claim interest which may be affected by a declaratory judgment is not a jurisdictional defect, as Section 2 of Rule 63 provides that said declaration shall not prejudice their interests, unless otherwise provided in the Rules of Court. (Baguio Citizens Action, Inc. v The City Council, etc. of Baguio City, L27247, April 20, 1983) Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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d. Conversion to ordinary action Rule 63, Sec. 6. Conversion into ordinary action. If before the final termination of the case, a breach or violation of an instrument or a statute, executive order or regulation, ordinance, or any other governmental regulation should take place, the action may thereupon be converted into an ordinary action, and the parties shall be allowed to file such pleadings as may be necessary or proper.

e. Proceedings considered as similar remedies A. Reformation of an instrument For an action for reformation of instrument to prosper, the following requisites must concur: (1) there must have been a meeting of the minds of the parties to the contract; (2) the instrument does not express the true intention of the parties; and (3) the failure of the instrument to express the true intention of the parties is due to mistake, fraud, inequitable conduct or accident. (Emilio vs. Rapal, G.R. No. 181855, 2010 March 30, 2010)

B. Consolidation of ownership It is settled that the buyer in a foreclosure sale becomes the absolute owner of the property purchased if it is not redeemed during the period of one year after the registration of the sale. As such, he is entitled to the possession of the said property and can demand it at any time following the consolidation of ownership in his name and the issuance to him of a new transfer certificate of title. The buyer can in fact demand possession of the land even during the redemption period except that he has to post a bond in accordance with Section 7 of Act No. 3135, as amended. No such bond is required after the redemption period if the property is not redeemed. Possession of the land then becomes an absolute right of the purchaser as confirmed owner. Upon proper application and proof of title, the issuance of the writ of possession becomes a ministerial duty of the court.( BPI Family Savings Bank, Inc. vs. Golden Power Diesel Sales Center, Inc., G.R. No. 176019, January 12, 2011 citing China Banking Corporation v. Lozada, G.R. No. 164919, 4 July 2008, 557 SCRA 177, citing IFC Service Leasing and Acceptance Corporation v. Nera, 125 Phil. 595 [1967].)

C. Quieting of title to real property For an action to quiet title to prosper, two (2) indispensable requisites must concur, namely: (1) the plaintiff or complainant has a legal or an equitable title to or interest in the real property subject of the action; and (2) the deed, claim, encumbrance, or proceeding claimed to be casting cloud on his title must be shown to be in fact invalid or inoperative despite its prima facie appearance of validity or legal efficacy. (Eland Philippines, Inc. vs. Garcia, G.R. No. 173289, February 2010.) An action for declaratory relief presupposes that there has been no actual breach of the instruments involved or of the rights arising thereunder. Since the purpose of an action for declaratory relief is to secure an authoritative statement of the rights and obligations of the parties under a statute, deed, or contract for their guidance in the enforcement thereof, or compliance therewith, and not to settle issues arising from an alleged breach thereof, it may be entertained before the breach or violation of the statute, deed or contract to which it refers. A petition for declaratory relief gives a practical remedy for ending controversies that have not reached the state where another relief is immediately available; and supplies the need for a Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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form of action that will set controversies at rest before they lead to a repudiation of obligations, an invasion of rights, and a commission of wrongs. In the present case, petitioner filed a complaint for quieting of title after it was served a notice to vacate but before it could be dispossessed of the subject properties. Notably, the Court of Appeals, in CA-G.R. SP No. 43034, had earlier set aside the Order which granted partial partition in favor of Eleuteria Rivera and the Writ of Possession issued pursuant thereto. And although petitioner’s complaint is captioned as Quieting of Title and Damages, all that petitioner prayed for, is for the court to uphold the validity of its titles as against that of respondents’. This is consistent with the nature of the relief in an action for declaratory relief where the judgment in the case can be carried into effect without requiring the parties to pay damages or to perform any act. Article 476 of the Civil Code provides: Art. 476. Whenever there is a cloud on title to real property or any interest therein, by reason of any instrument, record, claim, encumbrance or proceeding which is apparently valid or effective but is in truth and in fact invalid, ineffective, voidable, or unenforceable, and may be prejudicial to said title, an action may be brought to remove such cloud or to quiet the title. An action may also be brought to prevent a cloud from being cast upon title to real property or any interest therein. Thus, the cloud on title consists of: (1) any instrument, record, claim, encumbrance or proceeding; (2) which is apparently valid or effective; (3) but is in truth and in fact invalid, ineffective, voidable, or unenforceable; and (4) may be prejudicial to the title sought to be quieted. The fourth element is not present in the case at bar. While it is true that TCT No. C-314537 in the name of Eleuteria Rivera is an instrument that appeared to be valid but was subsequently shown to be invalid, it does not cover the same parcels of land that are described in petitioner’s titles. (Phil-Ville Development and Housing Corporation vs. Bonifacio, G.R. No. 167391, June 8, 2011)

Where the action is for quieting of title which is a similar remedy under the second paragraph of Sec. 1 of Rule 63, the jurisdiction will depend upon the assessed value of the property. Petitioners' contention that this case is one that is incapable of pecuniary estimation under the exclusive original jurisdiction of the RTC pursuant to Section 19(1) of B.P. 129 is erroneous. Actions for reconveyance of or for cancellation of title to or to quiet title over real property are actions that fall under the classification of cases that involve "title to, or possession of, real property, or any interest therein." Section 19(2) of B.P. 129, as amended by R.A. No. 7691, is clear that the RTC shall exercise jurisdiction "in all civil actions which involve the title to, or possession of, real property, or any interest therein, where the assessed value of the property involved exceeds Twenty thousand pesos (P20,000.00) or for civil actions in Metro Manila, where such value exceeds Fifty thousand pesos (P50,000.00)." The law is emphatic that in determining which court has jurisdiction, it is only the assessed value of the realty involved that should be computed. In this case, there is no dispute that the assessed values of the subject properties as shown by their tax declarations are less than P20,000.00. Clearly, jurisdiction over the instant cases belongs not to the RTC but to the MTC. (Concha, Sr. vs. Lumocso, G.R. No. 158121, December 12, 2007). Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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6. Review of Judgments and Final Orders or Resolution of the COMELEC and

COA

a. Application of Rule 65 under Rule 64 b. Distinction in the application of Rule 65 to judgments of the COMELEC and COA and the application of Rule 65 to other tribunals, persons and officers REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMELEC AND COA The mode of review of decisions or final orders of COMELEC and COA in the exercise of their quasi-judicial functions is by means of petition for CERTIORARI under Rule 65. • Period for filing – within 30 days from notice of the judgment or final or resolution. • The filing of a motion for new trial or reconsideration of said judgment or final or resolution, if allowed under the procedural rules of the Commission concerned, shall INTERRUPT the 30-day period. • If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than 5 days in any event, reckoned from the notice of default (Rule 64, Sec. 3). CERTIORARI AGAINST COMELEC AND COA - Rule 64 This provision (Art. IX, Sec. 7 of the Constitution) means final orders, rulings and decisions of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers. This decision must be a final decision or resolution of the Comelec en banc, not of a division, certainly not an interlocutory order of a division. The Supreme Court has no power to review via certiorari, an interlocutory order or even a final resolution of a Division of the Commission on Elections. The mode by which a decision, order or ruling of the Comelec en banc may be elevated to the Supreme Court is by the special civil action of certiorari under Rule 65, in relation to Rule 64 (Jumamil vs. Comelec, G.R. No. 167989-93, March 6, 2007) While original jurisdiction of the Supreme Court over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus is shared with the Court of Appeals and the RTCs, a direct invocation of the Supreme Court’s jurisdiction is allowed only when there are special and important reasons therefor, clearly and especially set out in the petition. Among the cases we have considered sufficiently special and important to be exceptions to the rule, are petitions for certiorari, prohibition, mandamus and quo warranto against our nation’s lawmakers when the validity of their enactments is assailed. The present petition is of this nature; its subject matter and the nature of the issues raised – among them, whether legislative reapportionment involves a division of Cagayan de Oro City as a local government unit – are reasons enough for considering it an exception to the principle of hierarchy of courts. Additionally, the petition assails as well a resolution of the COMELEC en banc issued to implement the legislative apportionment that R.A. No. 9371 decrees. As an action against a COMELEC en banc resolution, the case falls under Rule 64 of the Rules of Court that in turn requires a review by this Court via a Rule 65 petition for certiorari. For these reasons, we do not see the principle of hierarchy of courts to be a stumbling block in our consideration of the present case. (Bagabuyo vs. Comelec, G.R. No. 176970, December 8, 2008 En Banc) Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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Motion for reconsideration of decision of COMELEC Division required; not of COMELEC En Banc Under Sec. 1 (d) of COMELEC Rules of Procedure - no motion for reconsideration of En Banc ruling, resolution, order or decision except in election cases. Motion for reconsideration of COMELEC Division ruling should first be filed with COMELEC En Banc, whose decision may be brought on certiorari to SC. Exc. when division committed grave abuse of discretion, in which case the aggrieved party may directly file a petition for certiorari with SC . The fresh period rule does not apply to a petition for certiorari under Rule 64 as it is not akin to a petition for review brought under Rule 42; hence, the period to file a Rule 64 petition should not be reckoned from the receipt of the order denying the motion for reconsideration or the motion for new trial. Pursuant to Section 3 of Rule 64, it had only five days from receipt of the denial of its motion for reconsideration to file the petition. Therefore, since X received the decision denying its motion on July 14, 2014, it had only until July 19 to file the petition. (Fortune Life Insurance Company, Inc. v. COA Proper, G.R. No. 213525, January 27, 2015)

7. Certiorari, Prohibition and Mandamus a. Definitions and distinctions b. Requisites CERTIORARI Definition: The latin word “certiorari” literally means “to be informed of, to be made certain in regard to…” (Black’s Law Dictionary) Certiorari will issue only to correct errors of jurisdiction and not to correct errors of procedure or mistakes in the court’s findings and conclusions. (Lee vs. People 393 SCRA 397; Microsoft Corporation vs. Best Deal Computer Center, 389 SCRA 615) Terminology 1) Without jurisdiction – absence of a legal power to determine the merits of a case. 2) Excess of jurisdiction – the court has jurisdiction but fails to comply with the conditions prescribed for its exercise, or has transcended the same or acted without any authority 3) Grave abuse of discretion – judicial power is exercised capriciously, arbitrarily or despotically due to passion or personal hostility. It must be so patent and gross as to amount to an evasion, or to a virtual refusal to perform the duty enjoined or to act in contemplation of law. PETITION FOR CERTIORARI UNDER RULE 65 How taken and time for filing (Secs. 1 & 4) Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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Verified petition – 60 days from notice of judgment, order or resolution, or denial of MR or MNT. Period now inextendible – last paragraph of Section 4: “No extension of time to file the petition shall be granted except for compelling reasons and in no case exceeding fifteen (15) days” has been DELETED by A.M. No. 07-7-12-SC, effective December 27, 2007. Hence, petitions for certiorari must be filed strictly within 60 days from notice of judgment or from the order denying a motion for reconsideration. If the Court intended to retain the authority of the proper courts to grant extensions under Section 4 of Rule 65, the paragraph providing for such authority would have been preserved. The removal of the said paragraph under the amendment by A.M. No. 07-7-12-SC of Section 4, Rule 65 simply meant that there can no longer be any extension of the 60-day period within which to file a petition for certiorari. (Laguna Metts Corporation vs. Court of Appeals, G.R. No. 185220, July 27, 2009) N.B. Under Section 4, Rule 65 of the Rules of Court and as applied in Laguna Metts Corporation, the general rule is that a petition for certiorari must be filed within sixty (60) days from notice of the judgment, order, or resolution sought to be assailed. Under exceptional circumstances, however, and subject to the sound discretion of the Court, said period may be extended pursuant to Domdom, Labao and Mid-Islands Power cases The exceptions are: (a) to serve substantial justice and (b) to safeguard strong public interest. (Republic vs. St. Vincent de Paul Colleges, Inc., August 22, 2012). Three (3) essential dates that must be stated in a petition for certiorari under Rule 65 – First, the date when notice of the judgment, final order or resolution was received, second, when a motion for new trial or reconsideration was filed, and third, when notice of the denial thereof was received. This is for the purpose of determining its timeliness.. (Seastar Marine Services, Inc. vs. Bul-an, 444 SCRA 140 [2004]). ♦

To uphold the hierarchy of courts, A.M. No. 07-7-12 has also amended the second paragraph of Sec. 4: If the petition relates to an act or omission of a municipal trial court or of a corporation, board, officer or person, it shall be filed with the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed with the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or with the Sandiganbayan if it is in aid of its appellate jurisdiction. If the petition involves an act or omission of a quasi-judicial agency, unless otherwise provided by law or these rules, the petition shall be filed with and be cognizable only by the Court of Appeals. In election cases involving an act or omission of a municipal or regional trial court, the petition shall be filed exclusively Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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with the Commission on Elections, in aid of its appellate jurisdiction Following the hierarchy of courts, no certiorari against the RTC shall be filed with the Supreme Court. This will help prevent the clogging of the Supreme Court’s dockets as litigants will be discouraged from filing petitions directly with the Supreme Court. For election cases involving acts or omissions of a municipal or regional trial court, the petition shall be filed exclusively with the Comelec (Relampagos vs. Comelec (243 SCRA 690, April 27, 1995). ♦

SC, CA and RTC have concurrent jurisdiction  Petition for certiorari to annul RTC orders filed with the SC should be dismissed. It should have been filed with the CA, following the principle of hierarchy of courts (De los Reyes vs. People, 480 SCRA 294 [ 2006]).

 Although the Supreme Court, the CA and the RTC have concurrence of jurisdiction to issue writs of certiorari, the petitioner had no unrestrained freedom to choose which among the several courts might his petition for certiorari be filed in. In other words, he must observe the hierarchy of courts, the policy in relation to which has been explicitly defined in Section 4 of Rule 65 concerning the petitions for the extraordinary writs of certiorari, prohibition and mandamus (Banez, Jr. vs. Concepcion, G.R. No. 159508, August 29, 2012) Judicial Courtesy Rule of judicial courtesy, meaning holding in abeyance the execution of a judgment because of a pending petition for certiorari with the higher court, even without the issuance of a temporary restraining order.. So construed, in Eternal Garderns Memorial Corp. vs. CA (164 SCRA 421 [1988]), the role of judicial courtesy would apply ONLY if there is a string probability that the issues before the higher court would be rendered MOOT AND MORIBUND as a result of the continuation of the proceedings in the lower court. Unfortunately for complainants, this circumstance is not present in the decision of respondent Judge to issue on April 19, 2000 a second writ of execution. Clearly, the ill effects of this writ of execution, if any, would have been remedied by restitution or reparation under Sec. 5, Rule 39 Amendment of Rule 65, Sec. 7 has resulted in the ABANDONMENT of the principle of judicial courtesy: Rule 65. Section 7 was amended, as follows” Section 7.Expediting proceedings; injunctive relief. - The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the course of the principal case unless a temporary restraining order or a writ of preliminary injunction has been issued against the public respondent from further proceeding in the case. Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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The public respondent shall proceed with the principal case within ten (10) days from the filing of a petition for certiorari with a higher court or tribunal, absent a temporary restraining order or a preliminary injunction, or upon its expiration. Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge Unless there is a temporary restraining order or preliminary injunction issued by a higher court, the main or principal case should proceed despite the filing of a petition for certiorari questioning an act or omission of a court or tribunal Judicial courtesy, therefore, can no longer be used as an excuse by courts or tribunals not to proceed with the principal case. Further amendment of Rule 65: Section 8. Proceedings after comment is filed. - After the comment or other pleadings required by the court are filed, or the time for the filing thereof has expired, the court may hear the case or require the parties to submit memoranda. If, after such hearing or filing of memoranda or the expiration of the period for filing, the court finds that the allegations of the petition are true, it shall render judgment for such relief to which the petitioner is entitled. However, the court may dismiss the petition if it finds the same patently without merit or prosecuted manifestly for delay, or if the questions raised therein are too unsubstantial to require consideration. In such event, the court may award in favor of the respondent treble costs solidarily against the petitioner and counsel, in addition to subjecting counsel to administrative sanctions under Rules 139 and 139-B of the Rules of Court. The Court may impose motu proprio, based on rep ipsa loquitur, other disciplinary sanctions or measures on erring lawyers for patently dilatory and unmeritorious petitions for certiorari.

This amendment seeks to discourage litigants and their counsel from filing baseless petitions for certiorari.

Late filing of petition for certiorari – for being filed one day late, the Court of Appeals; dismissed petition for certiorari of NLRC decision. The Supreme Court upheld the dismissal. Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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Deviations from the rule cannot be tolerated. Its observance cannot be left to the whims and caprices of the parties (LTS Philippines Corp. vs. Maliwat, 448 SCRA 254 [2005]). ♦

Documents to accompany petition: (a) certified true copy of the judgment, order or resolution subject of the petition. (b) copies of all relevant pleadings and documents and (c) sworn certification of non-forum shopping (Caingat vs. NLRC, G.R. No. 154308, March 10, 2005). The requirement for certified true copies refers to the judgment, order or resolution (Air Philippines vs. Zamora, G.R. No. 148247, August 7, 2006). The use of mere photocopies of certified true copies of judgments or orders subject matter of a petition renders that petition deficient and subject to dismissal (Pinamakasarap Corporation vs. NLRC, G.R. No. 155058, September 26, 2006).  If aggrieved, even a non-party may institute a petition for certiorari (Chua vs. CA, 443 SCRA 259 [2004]).

•

If involving acts or omissions of a quasi-judicial agency, petition filed in CA

(Sec. 4).

♦ Directed against a tribunal, board or officer exercising judicial or quasi-judicial functions.  Not available as a remedy for the correction of the acts performed by a sheriff during the execution process, which acts are neither judicial nor quasi-judicial but are purely ministerial functions. Prohibition is the proper remedy (Pamana, Inc. vs. CA, 460 SCRA 133 [2005]).  Where the function is merely investigative and recommendatory with no power to pronounce judgment on the controversy, it does not involve the exercise of judicial or quasi-judicial power. Hence, the acts may not be challenged in a petition for certiorari (Doran vs. Luczon, G.R.No. 151344, September 26, 2006). ♦ A petition for certiorari must be based on jurisdictional grounds because as long as the respondent acted with jurisdiction, any error commited by him or it in the exercise thereof will amount to nothing than an error of judgment which may be reviewed by or corrected by appeal (Estrera vs. CA, G.R. No. 154235, August 16, 2006).

♦ It is patently clear that petitioners do not question whether the MTC has jurisdiction or authority to resolve the issue of confidentiality of ITRs. Rather, they assail the wisdom of the MTC’s very judgment and appreciation of the ITR as not confidential. Specifically, they claim that the ruling violated the provisions of the NIRC on the alleged rule on confidentiality of ITRs. Based on the definitions above, we conclude similarly as the RTC that if there is an error to speak of the error relates only to a mistake in the application of law, and not to an error of jurisdiction or grave abuse of discretion amounting to excess of jurisdiction. The only error petitioners raise refers to Judge Clavecilla’s mistake of not applying Section 71, which allegedly Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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prohibits the production of ITRs because of confidentiality. Certainly, as correctly posited by the court a quo, if every error committed by the trial court is subject to certiorari, trial would never come to an end, and the docket will be clogged ad infinitum. (Dipad vs. Olivan G.R. No. 168771, July 25, 2012)

♦ Since the issue is jurisdiction, an original action for certiorari may be directed against an interlocutory order of the lower court prior to an appeal from the judgment (New Frontier Sugar Corporation vs. RTC of Iloilo, G.R. No. 165001, January 31, 2007). ♦ Petitions for certiorari, prohibition and mandamus are not available against any interlocutory order under the Rule on Summary Procedure (Sec. 19 (g)), in a petition for a writ of amparo (Sec. 11 (l), Rule on the Writ of Amparo), in a petition for a writ of habeas data (Sec. 13 (l), Rule on the Writ of Habeas Data), and in small claims cases (Sec. 14 (g), Rule of Procedure for Small Claims Cases).By implication, such remedies are available against the judgment. ♦ Certiorari available to review decisions in small claims case Considering the final nature of a small claims case decision under the above-stated rule, the remedy of appeal is not allowed, and the prevailing party may, thus, immediately move for its execution. Nevertheless, the proscription on appeals in small claims cases, similar to other proceedings where appeal is not an available remedy, does not preclude the aggrieved party from filing a petition for certiorari under Rule 65 of the Rules of Court Owing to its nature, it is therefore incumbent upon petitioner to establish that jurisdictional errors tainted the MTCC Decision. The RTC, in turn, could either grant or dismiss the petition based on an evaluation of whether or not the MTCC gravely abused its discretion by capriciously, whimsically, or arbitrarily disregarding evidence that is material to the controversy. In view of the foregoing, the Court thus finds that petitioner correctly availed of the remedy of certiorari to assail the propriety of the MTCC Decision in the subject small claims case, contrary to the RTC’s ruling. Hence, considering that small claims cases are exclusively within the jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts, certiorari petitions assailing its dispositions should be filed before their corresponding Regional Trial Courts. This petitioner complied with when it instituted its petition for certiorari before the RTC which, as previously mentioned, has jurisdiction over the same. In fine, the RTC erred in dismissing the said petition on the ground that it was an improper remedy, and, as such, RTC Case No. 11-13833 must be reinstated and remanded thereto for its proper disposition.(A.L. Ang Network, Inc. vs. Mondejar, G.R. No. 200804, January 22, 2014) ♦

Ground: grave abuse of discretion, etc.  Denial of motion to dismiss or to quash, being interlocutory, cannot be questioned by certiorari; it cannot be subject of appeal, until final order or judgment is rendered. Exceptions (when recourse to certiorari or mandamus appropriate): (a) when trial court issued the order without or excess of jurisdiction; (b) when there is patent grave abuse of discretion by the trial court; or (c) when appeal would not prove to be a speedy and adequate remedy as when an appeal would not promptly relieve defendants from the injurious effects of the patently mistaken order (DBP vs. La Campana Development Corp., 448 SCRA 384 [2005]). Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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 A mere denial of an application for an ex parte order for the seizure of evidence is not indicative of grave abuse of discretion where petitioner failed to point out specific instances where grave abuse of discretion was allegedly commmitted and how the respondent court supposedly exercised its power in a despotic, capricious or whimsical manner (Microsoft Corporation vs. Best Deal Computer Center Corporation, 389 SCRA 615 [2002]).  A judge gravely abuses his discretion when he extends by twenty (20) days the 72-hour restraining order he initially issued because In no case shall the total period of effectivity of the temporary restraining order exceed 20 days (Beso vs. Aballe, 326 SCRA 100 [2000]).  There is grave abuse of discretion where the trial court fails to determine a factual controversy before issuing a writ of demolition. Failure to do so is to disregard basic principles of due process because before demolition could be effected, the parties concerned must be heard ( Bermudez vs.Gonzales, 347 SCRA 611 [2000]). ♦ No appeal or any plain, speedy and adequate remedy.  Under the 2000 National Prosecution Service Rules on Appeal, the resolution of the Secretary of Justice affirming, modifying or reversing the resolution of the Investigating Prosecutor is final. The remedy of the aggrieved party is to file a petition for certiorari with the Court of Appeals since there is no more appeal or other remedy available in the ordinary course of law. To file an appeal with the Court of Appeals under Rule 43 is an improper remedy (Alcaraz. vs. Gonzales. G.R. No. 164715, September 26, 2006). 

The CA is empowered under its certiorari jurisdiction to annul and declare void the questioned resolutions of the Secretary of Justice, but only on two grounds – lack of jurisdiction and grave abuse of discretion amounting to lack of jurisdiction. The power to reverse and set aside partakes of an appellate jurisdiction which the CA does not have over judgments of the Secretary of Justice exercising quasi-judicial functions (Buan vs. Matugas, G.R. No. 161179, August 7, 2007).

 A judgment or final order of the Court of Appeals on the petition for certiorari against the Secretary of Justice is reviewable by the Supreme Court by a petition for review under Rule 45, not the original action for certiorari under Rule 65. It is elementary that a writ of certiorari under Rule 65 where the remedy of appeal (like Rule 45) is available precludes certiorari (Spouses Balanguan vs. CA, G. R. No. 174350, August 13, 2008). ♦ Generally, if appeal is available, certiorari cannot be resorted to. Appeal and certiorari mutually exclusive and not alternative or successive.  Certiorari filed instead of appeal during period of appeal did not toll period or prevent judgment from becoming final (Del Rosario vs. Galagot, 166 SCRA 429).  Certiorari not substitute for lost appeal. Existence and availability of the right to appeal prohibits the resort to certiorari even if the error ascribed to the court is lack or excess of Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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jurisdiction or grave abuse of discretion in the findings of fact or law set out in the decision (Bugarin vs. Palisoc, G.R. No. 157985, December 2, 2005,476 SCRA 587).  If remedy of appeal lost due to petitioner’s neglect or error in choice of remedies, certiorari not substitute or tool to shield petitioner from adverse effects (Professional Regulations Commission vs. CA, 292 SCRA 155). Exceptions:     

When public welfare and advancement of public policy dictate. When broader interest of justice so requires. When writs issued are null and void. When questioned order amounts to an oppressive exercise of judicial authority. Where appeal is not adequate, speedy and effective. In any such instances, special civil action of certiorari may be availed of - even during the pendency of the case or even after judgment, or - even when appeal has been availed of

 Availability of appeal does not foreclose recourse to certiorari where appeal not adequate, or equally beneficial, speedy and sufficient (PNB vs. Sayoc, 292 SCRA 365).  Rule may be relaxed when rigid application will result in manifest failure or miscarriage of justice (Mejares vs. Reyes, 254 SCRA 425).  Where remedies not incompatible, filing of certiorari not abandonment of appeal. Appeal is from decision in main case while certiorari is against order denying motion for new trial (Lansang, Jr. vs. CA, 184 SCRA 230; St. Peter Memorial Park vs. Campos, 63 SCRA 180).  An appeal from a judgment does not bar a certiorari petition against the order granting execution pending appeal and the issuance of the writ of execution (Mañacop vs. Equitable PCIBank, 468 SCRA 256).  However, a party is not allowed to question a decision on the merits and also invoke certiorari. Filing of a petition for certiorari under Rule 65 and ordinary appeal under Rule 41 cannot be allowed because one remedy would necessarily cancel each other (Id.).  It is the danger of failure of justice without the writ, not the mere absence of all legal remedies, that must determine the propriety of certiorari (Seven Brothers Shipping Corp. vs. CA, 246 SCRA 33 [1995]). ♦ In many instances, the Supreme Court has treated a petition for review under Rule 45 as a petition for certiorari under Rule 65, where the subject of the recourse was one of jurisdiction, or the act complained of was perpetrated by a court with grave abuse or discretion amounting to lack or excess of jurisdiction but when the petition denominated as a Rule 45 petition neither involves any issue of jurisdiction nor a grave abuse of discretion on the part of the Court of Appeals, it should be dismissed outright (China Banking Corporation vs. Asian Construction and Development Corporation, G.R. No. 158271, April 8, 2008). Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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♦ Although the RTC has the authority to annul final judgments, such authority pertains only to final judgments rendered by inferior courts and quasi-judicial bodies of equal ranking with such inferior courts. Given that DARAB decisions are appealable to the CA, the inevitable conclusion is that the DARAB is a co-equal body with the RTC and its decisions are beyond the RTC’s control (Springfield Development Corp. vs. Presiding Judge of RTC of Misamis Oriental, Branch 40, G.R. No. 142628, February 6, 2007). Requisites: 1. Tribunal, board or officer exercises judicial or quasi-judicial functions 2. Tribunal, board or officer has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction Denial of motion to dismiss or to quash, being interlocutory, cannot be questioned by certiorari; it cannot be subject of appeal, until final order or judgment is rendered. Remedy: to continue the case in due course and, when an unfavorable verdict is handed down, to take an appeal in the manner authorized by law. Exceptions (when recourse to certiorari or mandamus appropriate): (a) when trial court issued the order without or excess of jurisdiction; (b) when there is patent grave abuse of discretion by the trial court; or (c) when appeal would not prove to be a speedy and adequate remedy as when an appeal would not promptly relieve defendants from the injurious effects of the patently mistaken order (DBP vs. La Campana Development Corp., 448 SCRA 384 [2005]). 3. NO APPEAL or any plain, speedy and adequate remedy in the ordinary course of law for the purpose of annulling or modifying the proceeding Generally, if appeal is available, certiorari cannot be resorted to. Appeal and certiorari are mutually exclusive and not alternative or successive. Certiorari filed instead of appeal during the period of appeal did not toll the period or prevent judgment from becoming final (Del Rosario vs. Galagot, Galagot, 166 SCRA 429[1998]). If remedy of appeal had already been lost by petitioner’s own neglect or error in choice of remedies, certiorari will not lie as substitute or tool to shield petitioner from adverse consequences of such neglect of error (Professional Regulations Commission vs. CA, 292 SCRA 155[1998]). Exceptions: a. when public welfare and advancement of public policy dictate b. when broader interest of justice so requires c. when writs issued are null and void d. when questioned order amounts to an oppressive exercise of judicial authority e. where appeal is not adequate, speedy and effective Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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In any of such instances, special civil action of certiorari may be availed of - even during the pendency of the case or even after judgment, or - even when appeal has been availed of >Availability of appeal does not foreclose recourse to certiorari where appeal is not adequate, or equally beneficial, speedy and sufficient (PNB vs. Sayoc, 292 SCRA 365 [1998]). >While general rule is that special civil action of certiorari may not be used as substitute for lapsed appeal, rule may be relaxed when rigid application will result in manifest failure or miscarriage of justice (Mejares vs. Reyes, 254 SCRA 425 [1992]). >When remedies are not incompatible, filing of certiorari not abandonment of appeal. In this case, the appeal is from the decision in the main case, while certiorari is directed against the order denying the motion for new trial (Lansang Jr. vs. CA, 184 SCRA 230 [1990]; St. Peter Memorial Park vs. Campos, 63 SCRA 180 [1975]). – Lansang: After judgment is rendered and an appeal therefrom perfected, a petition for certiorari relating to certain incidents therein may prosper where the appeal does not appear to be a plain, speedy and adequate remedy. Appeal and certiorari are not remedies that exclude each other. Although notice of appeal indicated that Lansang was appealing from the decision and order denying his motion for reconsideration, which in effect was a motion for new trial, he filed certiorari against the order, because of the daily penalty of P250 mentioned in the award (1985). > An appeal from the judgment does not bar a certiorari petition against the order granting execution pending appeal and the concomitant issuance of a writ of execution. Appeal would not be an adequate remedy from such premature execution when the same is not founded on good reasons (Manacop vs. Equitable PCIBank, 468 SCRA 256, [2005]) > Simultaneous filing of a petition for certiorari under Rule 65 and an ordinary appeal under Rule 41 cannot be allowed since one remedy would necessarily cancel each other. For certiorari to prosper, it is not enough that the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction; the requirement that there be no appeal, or any plain, speedy and adequate remedy in the ordinary course of law must also be satisfied. This is true even if the error ascribed to the trial court is lack of jurisdiction, etc. While it may be true that a judgment or final order was rendered under circumstances that would otherwise justify resort to a special civil action, the latter would be unavailing if there is an appeal, etc. If the court has jurisdiction over the subject matter and of the persons, its ruling upon all questions involved are within its jurisdiction and may be corrected only by appeal from the decision (Manacop vs. Equitable PCIBank, 468 SCRA 256 [2005])

PROHIBITION The writ of prohibition does not lie against the exercise of a quasi-legislative function. Since in issuing the questioned IRR of R.A. No. 9207, the National Government Administration Committee was not exercising judicial, quasi-judicial or ministerial function, which is the scope of a petition for prohibition under Section 2, Rule 65 of the 1997 Rules of Civil Procedure, the instant prohibition should be dismissed outright. Where the principal relief sought is to invalidate an IRR, petitioners’ remedy is an ordinary action for its nullification, an action which properly Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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falls under the jurisdiction of the Regional Trial Court. (Holy Spirit Homeowners Association vs. Defensor, G.R. No. 163980, August 3, 2006). What is the purpose of prohibition? To prevent unlawful and oppressive exercise of legal authority and to provide for a fair and orderly administration of justice. It is directed against proceedings that are done by a. any tribunal, corporation, boaard or officer whether exercising b. judicial, quasi-judicial or misterial funcitions, c. without or in excess of jurisdiction, or with grave abuse of discretion, d. there being no appeal or other plain, speedy and adequate remedy in the ordinary course of law (Rule 65. Sec. 1). Prohibition – not to correct errors of judgment but to prevent or restrain usurpation by inferior tribunals and to compel them to observe the limitation of their jurisdictions. It is a PREVENTIVE remedy, to restrain the doing of some act to be done. Not intended to provide a remedy for acts already accomplished. When does prohibition lie against an accomplished act? When the wrongful act is continuing or the questioned act is a NULLITY, done without or in excess of jurisdiction, or with grave abuse of discretion, and there being no appeal or other plain, speedy and adequate remedy in the ordinary course of law (Vergara vs. Roque, 78 SCRA 312 [1977]). MANDAMUS

A writ of mandamus commanding the respondents to require PUVs to use CNG is unavailing. Mandamus is available only to compel the doing of an act specifically enjoined by law as a duty. Here, there is no law that mandates the respondents LTFRB and the DOTC to order owners of motor vehicles to use CNG. At most the LTFRB has been tasked by E.O. No. 290 in par. 4.5 (ii), Section 4 “to grant preferential and exclusive Certificates of Public Convenience (CPC) or franchises to operators of NGVs based on the results of the DOTC surveys” (Henares, Jr. vs. Land Transportation Franchising and Regulatory Board, G.R. No. 158290, October 23, 2006

When is mandamus the proper remedy? It is the proper remedy if it can be shown that there is NEGLECT on the part of a tribunal or officer in the performance of an act which the law specifically enjoins as a duty or an unlawful exclusion of a party from the use and enjoyment of a right or office to which he is entitled. A key principle to be observed in dealing with petitions for mandamus is that such extraordinary remedy lies to compel the performance of duties that are purely ministerial in nature, not those that are discretionary. A purely ministerial act or duty is one that an officer or Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of its own judgment upon the propriety or impropriety of the act done. The duty is ministerial only when its discharge requires neither the exercise of official discretion or judgment. ( Special People, Inc. Foundation vs. Canda, G.R.No. January 14, 2013) Mandamus applies as a remedy only where petitioner’s right is founded clearly in law and not when it is doubtful.The writ will not be granted where its issuance would be unavailing, nugatory, or useless. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. There is no doubt that under E.O. No. 826, Administrative Order No. 003, Series of 1981, and Administrative Order No. 002, Series of 1991, petitioner is vested with discretion on whether or not to grant an application for the establishment of a new plant, the expansion of capacity, the relocation or upgrading of efficiencies of such desiccated coconut processing plant. Relative to the renewal of a certificate of registration, petitioner may refuse a registration unless the applicant has complied with the procedural and substantive requirements for renewal. However, once the requirements are complied with, the renewal of registration becomes a ministerial function of petitioner.(Philippine Coconut Authority vs. Primex Coco Products, Inc., G.R. No. 163088, July 20, 2006 )

Requisites for mandamus to issue a. The applicant must have a CLEAR LEGAL RIGHT to the thing demanded. The right must be well-defined, clear and certain (Lemi vs. Valencia, 26 SCRA 203 [1968]). b. Mandamus never issues in doubtful cases, nor will it issue to establish a legal right, but only to ENFORCE one that is already clearly established (Lim Tay vs. CA, 293 SCRA 634 [1998]). c. The respondent must have the POWER TO PERFORM the act concerning which the application for mandamus is made. For mandamus is a command to exercise a power already possessed and to perform a duty already imposed (Alzate vs. Aldona, 8 SCRA 219 [1965]). d. There must be UNREASONABLE DELAY in the performance of the duty, notwithstanding demand to perform it (Assn. of Small Landowners vs. Secretary of Agrarian Reform, 175 SCRA 343 [1989].

Ministerial and discretionary power Mandamus will lie to compel the doing of a ministerial act. It does not lie to control discretion, although it may issue to compel the exercise of discretion but not the discretion itself. Mandamus can require action only but not specific action where the act sought to be performed involves the exercise of discretion (Sharp International Marketing vs. CA. 201 SCRA 299 [1991]) Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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Issuance of business permit is discretionary in nature. A mayor cannot be compelled by mandamus to issue a business permit since the exercise of the same is a delegated police power hence, discretionary in nature. Section 444(b)(3)(iv) of the Local Government Code of 1991, whereby the power of the respondent mayor to issue license and permits is circumscribed, is a manifestation of the delegated police power of a municipal corporation. Necessarily, the exercise thereof cannot be deemed ministerial. As to the question of whether the power is validly exercised, the matter is within the province of a writ of certiorari, but certainly, not of mandamus. Indeed, as correctly ruled by the RTC, the petition for mandamus filed by the respondent is incompetent to compel the exercise of a mayor’s discretionary duty to issue business permits. ( Rimando vs. Naguilian Emission Testing Center, Inc., G.R. No. 198860, July 23, 2012) When can mandamus issue to compel a discretionary act? – when there is grave abuse of discretion. Ordinarily, mandamus will not prosper to compel a discretionary act. But where there is “gross abuse of discretion, manifest injustice or palpable excess of authority” eguivalent to denial of a settled right to which petitioner is entitled, and there is no other plain, speedy and adequate remedy, the writ shall issue ( First Philippine Holdings vs. Sandiganbayan, 253 SCRA 30 [1996]). Continuing mandamus The concept of continuing mandamus was first introduced in Metropolitan Manila Development Authority v. Concerned Residents of Manila Bay (G.R. Nos. 171947-48, December 18, 2008, 574 SCRA 661)..Now cast in stone under Rule 8 of the Rules, the writ of continuing mandamus enjoys a distinct procedure than that of ordinary civil actions for the enforcement/violation of environmental laws, which are covered by Part II (Civil Procedure). Similar to the procedure under Rule 65 of the Rules of Court for special civil actions for certiorari, prohibition and mandamus, Section 4, Rule 8 of the Rules requires that the petition filed should be sufficient in form and substance before a court may take further action; otherwise, the court may dismiss the petition outright. The writ of continuing mandamus is a special civil action that may be availed of "to compel the performance of an act specifically enjoined by law." (Rules of Procedure for Environmental Cases, Rule 8, Section 8).The petition should mainly involve an environmental and other related law, rule or regulation or a right therein. The RTC’s mistaken notion on the need for a final judgment, decree or order is apparently based on the definition of the writ of continuing mandamus under Section 4, Rule 1 of the Rules. The final court decree, order or decision erroneously alluded to by the RTC actually pertains to the judgment or decree that a court would eventually render in an environmental case for continuing mandamus and which judgment or decree shall subsequently become final A writ of continuing mandamus is, in essence, a command of continuing compliance with a final judgment as it "permits the court to retain jurisdiction after judgment in order to ensure the successful implementation of the reliefs mandated under the court’s decision." (Dolot vs.Paje, G.R. No. 199199, August 27, 2013)

When mandamus may not lie 1. Where the position is disputed by two persons who both claim a right thereto, mandamus does not lie to oust the person who occupies it and exercises its functions. The remedy is an action for QUO WARRANTO which tests the title to Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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2.

3.

one’s office claimed by another and to oust the holder from its enjoyment (Garces vs. CA, 159 SCRA 99 [1996]). Mandamus does not lie to enforce the performance of contractual obligations. A contractual obligation is not a duty specifically enjoined by law resulting from office, trust or station (Aprueba vs. Ganzon, 18 SCRA 8 [1966]). The appointing power being discretionary, mandamus does not lie to compel the appointing authority to appoint a particular person to a particular position, though how qualified he may be to the position (Gloria vs. De Guzman, Jr., 249 SCRA 126 [1995]).

c. When petition for certiorari, prohibition and mandamus is proper 1. When appeal is not a speedy and adequate remedy (Saludes v. Pajarillo, 78 Phil. 754 [1947]) 2. When an order is issued without or in excess of jurisdiction; (Philippine National Bank v. Florendo, G.R. No. 62082, February 26, 1992, 206 SCRA 582 ) 3. In consideration of public welfare and for the advancement of public policy (Jose v. Zulueta, No. L-16598, May 31, 1961, 2 SCRA 574) 4. Order is a patent nullity (Marcelo v. De Guzman, No. L-29077. June 29, 1982, 114 SCRA 657) 5. To avoid future litigation (St. Peter Memorial Park, Inc. v. Campos, Jr., No. L38280, March 21, 1975, 63 SCRA 180); 6. To avoid a miscarriage of justice (Escudero v. Dulay, No. L-60578, February 23, 1988, 158 SCRA 69.); 7. In furtherance of the broader interest of justice and equities (Marahay v. Melicor, G.R. No. 44980, February 6, 1990, 181 SCRA 811).

d. Injunctive relief SECTION 7. Expediting proceedings; injunctive relief . — The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the course of the principal case unless a temporary restraining order or a writ of preliminary injunction has been issued against the public respondent from further proceeding in the case.

e. Certiorari distinguished from Appeal by Certiorari; Prohibition and Mandamus distinguished from Injunction; when and where to file petition Certiorari as a Mode of Appeal (Rule 45)

Certiorari as a Special Civil Action (Rule 65)

Called petition for review on certiorari, is a

A special civil action that is an original action

mode of appeal, which is but a continuation of

and not a mode of appeal, and not a part of the

the appellate process over the original case;

appellate process but an independent action.

Seeks to review final judgments or final orders; May be directed against an interlocutory order of the court or where not appeal or plain or Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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speedy remedy available in the ordinary course of law Raises only questions of law;

Raises questions of jurisdiction because a tribunal, board or officer exercising judicial or quasi-judicial functions has acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion amounting to lack of

jurisdiction; Filed within 15 days from notice of judgment or Filed not later than 60 days from notice of final order appealed from, or of the denial of judgment, order or resolution sought to be petitioner’s motion for reconsideration or new assailed and in case a motion for trial; reconsideration or new trial is timely filed, whether such motion is required or not, the 60 day period is counted from notice of denial of said motion; Extension no longer allowed; Extension of 30 days may be granted for justifiable reasons Does not require a prior motion for reconsideration;

Motion for Reconsideration is a condition precedent, subject to exceptions

Stays the judgment appealed from;

Does not stay the judgment or order subject of the petition unless enjoined or restrained;

Parties are the original parties with the appealing party as the petitioner and the adverse party as the respondent without impleading the lower court or its judge;

The tribunal, board, officer exercising judicial or quasi-judicial functions is impleaded as respondent

Filed with only the Supreme Court

May be filed with the Supreme Court, Court of Appeals, Sandiganbayan, or Regional Trial Court

SC may deny the decision motu propio on the ground that the appeal is without merit, or is prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. (Prohibition and Mandamus distinguished from Injunction; when and where to file petition) Prohibition

Mandamus

Injunction

Prohibition is an extraordinary Mandamus is an extraordinary Main action for injunction seeks writ commanding a tribunal,

writ commanding a tribunal,

to enjoin the defendant from

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corporation, board or person,

corporation, board or person, to the commission or continuance

whether exercising judicial,

do an act required to be done: of a specific act, or to compel a

quasi-judicial or ministerial

(a)

When he unlawfully

particular act in violation of the

functions, to desist from further neglects the performance of an rights of the applicant. proceedings when said

act which the law specifically

Preliminary injunction is a

proceedings are without or in

enjoins as a duty, and there is provisional remedy to preserve

excess of its jurisdiction, or with no other plain, speedy and

the status quo and prevent

abuse of its discretion, there

adequate remedy in the

future wrongs in order to

being no appeal or any other

ordinary course of law; or

preserve and protect certain

plain, speedy and adequate

interests or rights during the

When one unlawfully pendency of an action. remedy in the ordinary course (b) excludes another from the use of law (Sec. 2, Rule 65). and enjoyment of a right or office to which the other is entitled (Sec. 3, Rule 65). Prohibition Always the main action

Injunction May be the main action or just a provisional remedy

Directed against a court, a tribunal

Directed against a party

exercising judicial or quasi-judicial functions Ground must be the court acted without or Does not involve a question of jurisdiction in excess of jurisdiction Prohibition To prevent an act by a respondent

Mandamus To compel an act desired

May be directed against entities exercising May be directed against judicial and nonjudicial or quasi-judicial, or ministerial

judicial entities

functions Extends to discretionary functions

Extends only to ministerial functions

Mandamus Clarifies legal duties, not legal titles

Quo warranto Clarifies who has legal title to the office, or franchise

Respondent, without claiming any right to

Respondent usurps the office

the office, excludes the petitioner

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f. Exceptions to filing of motion for reconsideration before filing petition 

Motion for reconsideration required before certiorari can be filed (Rule 65, Section 4) Its purpose is to grant an opportunity for the court to correct any actual or perceived error attributed to it by the re-examination of the legal and factual circumstances of the case.  Exceptions:

(a) where the order is a patent nullity, as where the court a quo has no jurisdiction; (b) where the questions raised in the certiorari proceeding have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court; (c) where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the government or the petitioner or the subject matter of the action is perishable; (d) where, under the circumstances, a motion for reconsideration would be useless; (e) where petitioner was deprived of due process and there is extreme urgency for relief; (f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable; (g) where the proceedings in the lower court are a nullity for lack of due process; (h) where the proceedings was ex parte or in which the petitioner had no opportunity to object; and (i) where the issue raised is one purely of law or where public interest is involved. (j) where judicial intervention is urgent (k) where its application may cause great and irreparable damage (l) failure of a high government official from whom relief is sought to act on the matter (m) when the issue of non-exhaustion of administrative remedies has been rendered moot (n) where special circumstances warrant immediate and more direct action (Novateknika Land Corporation vs. Philippine National Bank, G.R. No. 194104, March 13, 2013; Republic vs. Bayao, G.R. No. 179492, June 5, 2013; Tan. Jr. vs. Sandiganbayan, 242 SCRA 452; Marawi Marantao General Hospital vs. CA, 349 SCRA 321).

Molina was not strictly bound by the rule on exhaustion of administrative remedies. His failure to file the motion for reconsideration did not justify the immediate dismissal of the petition for certiorari, for we have recognized certain exceptional circumstances that excused his non-filing of the motion for reconsideration. Considering that the matter brought to the CA - whether the act complained against justified the filing of the formal charge for grave misconduct and the imposition of preventive suspension pending investigation - was a purely legal question due to the factual antecedents of the case not being in dispute. Hence, Molina had no need to exhaust the available administrative remedy of filing the motion for reconsideration. (Garcia v. Molina, G.R. No. 165223, Jan. 11, 2016) - LPB

g. Reliefs petitioner is entitled to Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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Rule 65, Sec. 1 (Certiorari) -x x x that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. Rule 65, Sec. 2 (Prohibition) x x x that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require. Rule 65. Sec. 3 (Mandamus) x x x that judgment be rendered commanding the respondent, immediately or at some other specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent.

h. Actions/Omissions of MTC/RTC in election cases Rule 65, Sec. 4, as amended by A. M. No. 07-7-12 dated Dec, 12, 2007 If the petition relates to an act or omission of a municipal trial court or of a corporation, board, officer or person, it shall be filed with the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed with the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or with the Sandiganbayan if it is in aid of its appellate jurisdiction. If the petition involves an act or omission of a quasi-judicial agency, unless otherwise provided by law or these rules, the petition shall be filed with and be cognizable only by the Court of Appeals. In election cases involving an act or omission of a municipal or regional trial court, the petition shall be filed exclusively with the Commission on Elections, in aid of its appellate jurisdiction

i. Where to file petition See above

j. Effects of filing of an unmeritorious petition Rule 65 Section 8. Proceedings after comment is filed. - After the comment or other pleadings required by the court are filed, or the time for the filing thereof has expired, the court may hear the case or require the parties to submit memoranda. If, after such hearing or filing of memoranda or the expiration of the period for filing, the court finds that the allegations of the petition are true, it shall render judgment for such relief to which the petitioner is entitled. However, the court may dismiss the petition if it finds the same patently without merit or prosecuted manifestly for delay, or if the questions raised therein Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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are too unsubstantial to require consideration. In such event, the court may award in favor of the respondent treble costs solidarily against the petitioner and counsel, in addition to subjecting counsel to administrative sanctions under Rules 139 and 139-B of the Rules of Court. The Court may impose motu proprio, based on rep ipsa loquitur, other disciplinary sanctions or measures on erring lawyers for patently dilatory and unmeritorious petitions for certiorari.

8. Quo Warranto What is quo warranto? A petition for quo warranto is a proceeding to determine the right of a person to the use or exercise of a franchise or office and to oust the holder from its enjoyment, if his claim is not well-founded, or if he has forfeited his right to enjoy the privilege (Mendoza vs. Allas, 302 SCRA 623 [1999]). Actions of quo warranto against persons who usurp an office in a corporation, which were formerly cognizable by the Securities and Exchange Commission under PD 902-A, have been transferred to the courts of general jurisdiction. But this does not change the fact that Rule 66 of the 1997 Rules of Civil Procedure does not apply to quo warranto cases against persons who usurp an office in a private corporation (Calleja vs. Panday, G.R. No. 168696. February 28, 2006). In the instance in which the petition for quo warranto is filed by an individual in his own name, he must be able to prove that he is entitled to the controverted public office, position, or franchise; otherwise, the holder of the same has a right to the undisturbed possession thereof. In actions for quo warranto to determine title to a public office, the complaint, to be sufficient in form, must show that the plaintiff is entitled to the office. An action for quo warranto may be dismissed at any stage when it becomes apparent that the plaintiff is not entitled to the disputed public office, position or franchise. Hence, the RTC is not compelled to still proceed with the trial when it is already apparent on the face of the petition for quo warranto that it is insufficient. The RTC may already dismiss said petition at this point. (Feliciano vs. Villasin, G.R. No. 174929, June 27, 2008 En Banc).

Quo warranto and mandamus distinguished Quo warranto – remedy to try the right to an office or franchise and to oust the holder from its enjoyment. There is usurpation or intrusion into office. Mandamus – lies to enforce clear legal duties, not to try disputed titles. Respondent, without claiming any right to an office, excludes petitioner therefrom. Who may be parties? Any person claiming to be entitled to a public office may bring an action for quo warranto without the intervention of the Solicitor General. Only the person who is in unlawful possession of the office, and all who claim to be entitled to that office may be made parties in order to determine their respective rights thereto in the same action. Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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Period for filing A petition for quo warranto and mandamus affecting titles to public office must be filed within one (1) year from the date petitioner was ousted from his position. This period is not interrupted by the prosecution of any administrative remedy. While it may be desirable that administrative remedies be first resorted to, no one is compelled or bound to do so, and as said remedies neither are prerequisite to nor bar the institution of quo warranto proceedings, it follows that he who claims the right to hold a public office allegedly usurped by another and who desires to seek redress in the court, should file the proper judicial action within the reglementary period (Galano vs. Roxas, 67 SCRA 8 [1975]). Exception to one year period Laches does not attach and failure to file quo warranto proceeding does not operate adversely against a dismissed government employee where it was the act of responsible govenrment officials which contributed to the delay in the filing of the complaint for reinstatement (Cristobal vs. Melchor, 78 SCRA 175 [1977]) Venue 1. Supreme Court; 2. Court of Appeals; or 3. RTC with jurisdiction over area where respondent of any of respondents reside EXC. When Solicitor General files the action, it may be brought in the RTC of Manila (Rule 66, Sec. 7)

a. Distinguish from Quo Warranto in the Omnibus Election Code Quo Warranto (Rule 66)

Quo Warranto (Election Code)

Subject of the petition is in relation to an

Subject of the petition is in relation to an

appointive office;

elective office;

The issue is the legality of the occupancy of the Grounds relied upon are: (a) ineligibility to the office by virtue of a legal appointment;

position; or (b) disloyalty to the Republic.

Petition is brought either to the Supreme Court, May be instituted with the COMELEC by any the Court of Appeals or the Regional Trial

voter contesting the election of any member of

Court;

Congress, regional, provincial or city officer; or to the MeTC, MTC or MCTC if against any barangay official;

Filed within one (1) year from the time the

Filed within ten (10) days after the proclamation

cause of ouster, or the right of the petitioner to of the results of the election; hold the office or position arose; Petitioner is the person entitled to the office;

Petitioner may be any voter even if he is not entitled to the office;

Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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The court has to declare who the person

When the tribunal declares the candidate-elect

entitled to the office is if he is the petitioner.

as ineligible, he will be unseated but the person occupying the second place will not be declared as the one duly elected because the law shall consider only the person who, having duly filed his certificate of candidacy, received a plurality of votes.

b. When government commences an action against individuals RULE 66 - QUO WARRANTO

Section 1. Action by Government against individuals. An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against: a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; b) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; or c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act.

c. When individual may commence an action Rule 66, Sec. 5. When an individual may commence such an action. A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another may bring an action therefor in his own name.

d. Judgment in Quo Warranto action Rule 66, Sec. 9. Judgment where usurpation found. When the respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a public office, position or franchise, judgment shall be rendered that such respondent be ousted and altogether excluded therefrom, and that the petitioner or relator, as the case may be, recover his costs. Such further judgment may be rendered determining the respective rights in and to the public office, position or franchise of all the parties to the action as justice requires.

e. Rights of a person adjudged entitled to public office Rule 66, Sec. 10. Rights of persons adjudged entitled to public office; delivery of books and papers; damages. If judgment be rendered in favor of the person averred in the complaint to be entitled to the public office he may, after taking the oath of office and executing any official bond required by law, take upon himself the execution of the office, and may immediately thereafter demand of the respondent all the books and papers in the respondent’s custody or control appertaining to the office to which the judgment relates. If the respondent refuses or Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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neglects to deliver any book or paper pursuant to such demand, he may be punished for contempt as having disobeyed a lawful order of the court. The person adjudged entitled to the office may also bring action against the respondent to recover the damages sustained by such person by reason of the usurpation.

9. Expropriation

a. Matters to allege in complaint for expropriation Rule 67, Section 1. The complaint. The right of eminent domain shall be exercised by the filing of a verified complaint which shall state with certainty the right and purpose of expropriation, describe the real or personal property sought to be expropriated, and join as defendants all persons owning or claiming to own, or occupying, any part thereof or interest therein, showing, so far as practicable, the separate interest of each defendant. If the title to any property sought to be expropriated appears to be in the Republic of the Philippines, although occupied by private individuals, or if the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners, averment to that effect shall be made in the complaint. Contents of Complaint 1. Right and purpose of expropriation; 2. Description of the real or personal property sought to be expropriated; 3. All persons owning or claiming to own or occupying any part or interest therein must be named as defendants, showing, as far as practicable, the separate interest of each defendants; 4. If the title of the property to be expropriated is in the name of the Republic of the Philippines, although occupied by private individuals, or if the title is obscure or doubtful, averment to that effect shall be made in the complaint. (Rule 67, Section 1)

b. Two stages in every action for expropriation Two (2) Stages in Expropriation Proceedings 1. Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts. This stage is terminated by either an order of dismissal of the action or order of the condemnation declaring that expropriation is proper and legal. These orders are final and therefore appealable. (Municipality of Binan v. Garcia, G.R. No. 69260, December 22, 1989, 180 SCRA 576) 2. Determination of just compensation. This is done with the assistance of not more than three (3) commissioners. The order fixing just compensation is also final and appealable. (Municipality of Binan v. Garcia, G.R. No. 69260, December 22, 1989, 180 SCRA 576) Just compensation is to be determined as of the date of the taking of the propriety OR the filing of the complaint, whichever comes first.

c. When plaintiff can immediately enter into possession of the real property, in relation to RA 8974 Expropriation procedures under Republic Act No. 8974 and Rule 67 of the Rules of Court speak of different procedures, with the former specifically governing expropriation proceedings for national government infrastructure projects. (Republic Of The Philippines, Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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Represented By The Toll Regulatory Board vs. Holy Trinity Realty Development Corp., G.R. No. 172410, April 14, 2008) The most crucial difference between Rule 67 and Rep. Act No. 8974 concerns the particular essential step the Government has to undertake to be entitled to a writ of possession. To be entitled to a writ of possession, Rule 67 merely requires the Government to deposit with an authorized government depositary the assessed value of the property for expropriation. (Sec. 2) On the other hand, Rep. Act No. 8974 requires that the Government make a direct payment to the property owner before the writ may issue. Moreover, such payment is based on the zonal valuation of the BIR in the case of land, the value of the improvements or structures under the replacement cost method, or if no such valuation is available and in cases of utmost urgency, the proffered value of the property to be seized. (Republic vs. Gingoyon, G.R. No. 166429, December 19, 2005) It is the plain intent of Rep. Act No. 8974 to supersede the system of deposit under Rule 67 with the scheme of "immediate payment" in cases involving national government infrastructure projects. (Republic vs. Gingoyon, G.R. No. 166429, December 19, 2005 ) At the same time, Section 14 of the Implementing Rules recognizes the continued applicability of Rule 67 on procedural aspects when it provides "all matters regarding defenses and objections to the complaint, issues on uncertain ownership and conflicting claims, effects of appeal on the rights of the parties, and such other incidents affecting the complaint shall be resolved under the provisions on expropriation of Rule 67 of the Rules of Court." (Republic vs. Gingoyon, G.R. No. 166429, December 19, 2005) Under Rule 67, the only requirement for immediate possession is notice to the owner of the property and deposit of the amount equivalent to the assessed value of the property. (National Power Corporation v. Jocson, GR Nos. 94193-99, February 25, 1992) The issuance of the writ of possession becomes a ministerial duty of the court if the preliminary deposit has already been made by the expropriator. (Biglang-Awa vs. Bacalla, GR Nos. 139927 and 139936, November 22, 2000) Just compensation is determined as of time of taking of property or filing of the complaint, whichever comes first (Republic vs. Vda. De Castellvi, GR No. L-20620, August 15, 1974) There is taking when: 1. the expropriator enters a private property; 2. the entry must be for more than a momentary period; 3. the entry should be under warrant or color of legal authority; 4. the property must be devoted to a public use or otherwise informally appropriated or injuriously affected; and 5. the utilization of the property for public use must be in such a way as to oust the owner and deprive him of all beneficial enjoyment of the property. (Didipio Earth-Savers’ MultiPurpose Association, Incorporated (DESAMA), et. al. vs. Elisea Gozun, et.al., G.R. No. 157882, March 30, 2006) The appointment of commissioners is mandatory and cannot be dispensed with, without violating the constitutional right to due process and the mandated rule established by the Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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Revised Rules of Court( Manila Electric Company vs. Pineda, GR No. L-59791, February 13, 1992) The court has the jurisdiction to determine, in the same expropriation proceedings, conflicting claims of ownership over the property involved and declare the lawful owner thereof. (Republic v. CFI of Pampangs, et.al., L-27006, June 30, 1970) In the event the judgment of expropriation is reversed by the appellate court and the case is remanded to the lower court with the mandate to determine the damages caused to the landowner, such landowner has the option of proving such damages either in the same expropriation case or in a separate action instituted for that purpose (MWV vs. De los Angeles, 55 Phil. 776), as the judgment denying the right of expropriation is not res judicata on the issue of damages arising from such illegal expropriation (Republic vs. Baylosis 109 Phil. 580)

d. New system of immediate payment of initial just compensation Rep. Act No. 8974 mandates immediate payment of the initial just compensation prior to the issuance of the writ of possession in favor of the government. RA 8974 requires that the government make a direct payment to the property owner before the writ may issue. Such payment is based on the zonal valuation of the BIR in the case of land, the value of the improvements or structures under the replacement cost method, or if no such valuation is available and in cases of utmost urgency, the proffered value of the property to be seized. It is the plain intent of RA 8974 to supersede the system of deposit under Rule 67 with the scheme of “immediate payment” in cases involving national government infrastructure projects (Republic vs. Gingoyon, G.R. No. 166249, December 19, 2005).

e. Defenses and objections Rule 67, Sec. 3. Defenses and objections. If a defendant has no objection or defense to the action or the taking of his property, he may file and serve a notice of appearance and a manifestation to that effect, specifically designating or identifying the property in which he claims to be interested, within the time stated in the summons. Thereafter, he shall be entitled to notice of all proceedings affecting the same. If a defendant has any objection to the filing of or the allegations in the complaint, or any objection or defense to the taking of his property, he shall serve his ANSWER within the time stated in the summons. The answer shall specifically designate or identify the property in which he claims to have an interest, state the nature and extent of the interest claimed, and adduce all his objections and defenses to the taking of his property. No counterclaim, crossclaim or third-party complaint shall be alleged or allowed in the answer or any subsequent pleading. A defendant waives all defenses and objections not so alleged but the court, in the interest of justice, may permit amendments to the answer to be made not later than ten (10) days from the filing thereof. However, at the trial of the issue of just compensation, whether or not a defendant has previously appeared or answered, he may present evidence as to the Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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amount of the compensation to be paid for his property, and he may share in the distribution of the award. Motion to dismiss is not permitted in a complaint for expropriation. Significantly, the Rule allowing a defendant in an expropriation case to file a motion to dismiss in lieu of an answer was amended by the 1997 Rules of Civil Procedure, which took effect on July 1, 1997. Section 3, Rule 67 now expressly mandates that any objection or defense to the taking of the property of a defendant must be set forth in an ANSWER. (Masikip vs. City of Pasig, G.R. No. 136349. January 23, 2006)

f. Order of Expropriation Rule 67, Sec. 4. Order of expropriation. If the objections to and the defenses against the right of the plaintiff to expropriate the property are overruled, or when no party appears to defend as required by this Rule, the court may issue an order of expropriation declaring that the plaintiff has a lawful right to take the property sought to be expropriated, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint, whichever came first. A final order sustaining the right to expropriate the property may be appealed by any party aggrieved thereby. Such appeal, however, shall not prevent the court from determining the just compensation to be paid. N.B. Record on appeal should be filed. After the rendition of such an order, the plaintiff shall not be permitted to dismiss or discontinue the proceeding except on such terms as the court deems just and equitable.

Before a LOCAL GOVERNMENT UNIT may enter into the possession of the property sought to be expropriated, it must (1) file a complaint for expropriation sufficient in form and substance in the proper court and (2) deposit with the said court at least 15% of the property's fair market value based on its current tax declaration. The law (RA 7160) does not make the determination of a public purpose a condition precedent to the issuance of a writ of possession.( Francia, Jr. vs. Municipality of Meycauayan, G.R. No. 170432, March 24, 2008). A local government unit cannot authorize an expropriation of private property through a mere resolution of the lawmaking body. Sec. 19 of RA 7160 expressly requires an ordinance for the purpose and a resolution that merely expresses the sentiment of the municipal council will not suffice (Beluso vs. the Municipality of Panay Capiz, G.R. No. 153974, August 7, 2006).

g. Ascertainment of just compensation Rule 67, Sec. 5. Ascertainment of compensation. Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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Upon the rendition of the order of expropriation, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. The order of appointment shall designate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report shall be submitted to the court. NOTE: Where the taking preceded the filing of the complaint for expropriation, just compensation must be determined at the time the expropriating authority takes possession thereof and not as of the institution of the proceedings (Republic of the Philippines vs. Sarabia, G.R. No. 157847, August 25, 2005, 468 SCRA 142)..Where the filing of the complaint preceded the plaintiff’s entry into the property, the just compensation is to be ascertained as of the time of said fiing (National Power Corporation vs. De la Cruz, G.R. No. 156093, February 2, 2007).

h. Appointment of Commissioners; Commissioner’s report; Court action upon commissioner’s report Rule 67, Sec. 5. Ascertainment of compensation. Upon the rendition of the order of expropriation, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. The order of appointment shall designate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report shall be submitted to the court. Copies of the order shall be served on the parties. Objections to the appointment of any of the commissioners shall be filed with the court within ten (10) days from service, and shall be resolved within thirty (30) days after all the commissioners shall have received copies of the objections. (5a) Rule 67, Sec. 6. Proceedings by commissioners. Before entering upon the performance of their duties, the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case. Evidence may be introduced by either party before the commissioners who are authorized to administer oaths on hearings before them, and the commissioners shall, unless the parties consent to the contrary, after due notice to the parties to attend, view and examine the property sought to be expropriated and its surroundings, and may measure the same, after which either party may, by himself or counsel, argue the case. The commissioners shall assess the consequential damages to the property not taken and deduct from such consequential damages the consequential benefits to be derived by the owner from the public use or purpose of the property taken, the operation of its franchise by the corporation or the carrying on of the business of the corporation or person taking the property. But in no case shall the consequential benefits assessed exceed the consequential damages assessed, or the owner be deprived of the actual value of his property so taken. (6a) Rule 67, Sec. 7. Report by commissioners and judgment thereupon. The court may order the commissioners to report when any particular portion of the real estate shall have been passed upon by them, and may render judgment upon such partial report, and direct the commissioners to proceed with their work as to subsequent portions of Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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the property sought to be expropriated, and may from time to time so deal with such property. The commissioners shall make a full and accurate report to the court of all their proceedings, and such proceedings shall not be effectual until the court shall have accepted their report and rendered judgment in accordance with their recommendations. Except as otherwise expressly ordered by the court, such report shall be filed within sixty (60) days from the date the commissioners were notified of their appointment, which time may be extended in the discretion of the court. Upon the filing of such report, the clerk of the court shall serve copies thereof on all interested parties, with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire. (7a) Rule 67, Sec. 8. Action upon commissioners’ report. Upon the expiration of the period of ten (10) days referred to in the preceding section, or even before the expiration of such period but after all the interested parties have filed their objections to the report or their statement of agreement therewith, the court may, after hearing, accept the report and render judgment in accordance therewith; or, for cause shown, it may recommit the same to the commissioners for further report of facts; or it may set aside the report and appoint new commissioners; or it may accept the report in part and reject it in part; and it may make such order or render such judgment as shall secure to the plaintiff the property essential to the exercise of his right of expropriation, and to the defendant just compensation for the property so taken.

i. Rights of plaintiff upon judgment and payment Rule 67, Sec. 10. Rights of plaintiff after judgment and payment. Upon payment by the plaintiff to the defendant of the compensation fixed by the judgment, with legal interest thereon from the taking of the possession of the property, or after tender to him of the amount so fixed and payment of the costs, the plaintiff shall have the right to enter upon the property expropriated and to appropriate it for the public use or purpose defined in the judgment, or to retain it should he have taken immediate possession thereof under the provisions of section 2 hereof. If the defendant and his counsel absent themselves from the court, or decline to receive the amount tendered, the same shall be ordered to be deposited in court and such deposit shall have the same effect as actual payment thereof to the defendant or the person ultimately adjudged entitled thereto.

j. Effect of recording of judgment Rule 67, Sec. 13. Recording judgment, and its effect. The judgment entered in expropriation proceedings shall state definitely, by an adequate description, the particular property or interest therein expropriated, and the nature of the public use or purpose for which it is expropriated. When real estate is expropriated, a certified copy of such judgment shall be recorded in the registry of deeds of the place in which the property is situated, and its effect shall be to vest in the plaintiff the title to the real estate so described for such public use or purpose. NOTES: EXPROPRIATION Distinction between eminent domain and expropriation - Eminent domain is the RIGHT. Power of the state to take or authorize the taking of any property within its jurisdiction for public use without the owner’s consent. Inherent in sovereignty and exists in a sovereign state without any recognition thereof in the Constitution. Possessed by the State. By delegation, may also be possessed by local govts, other public entities, and public utilities. Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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Expropriation is the PROCEDURE for enforcing said right. What are the stages of expropriation? 1. Determination of the RIGHT TO EXPROPRIATE or the authority of plaintiff to exercise power of eminent domain and propriety of its exercise in the context of the facts. It ends with an order of condemnation declaring that plaintiff has lawful right to take the property for public use or purpose after payment of just compensation to be determined as of the date of filing of the complaint. It may be an order of dismissal. Both orders are final orders, hence appealable. Record on appeal necessary. Period to appeal – 30 days. 2. Determination by the court of JUST COMPENSATION with the assistance of 3 commissioners. Order fixing just compensation also final because leaves nothing more to be done by the court regarding the issue. Also appealable. Record on appeal not necessary. Period to appeal – 15 days. What is the period to appeal from order of expropriation? In actions for eminent domain, as in actions for partition, two appeals are allowed by law. Period is 30 DAYS from notice of order of condemnation Cases where multiple appeals are allowed, where record on appeal is required. In the event of an appeal from a separate judgment, the original record cannot be sent up to the appellate court. The record will have to stay with the trial court because it will still try the case as regards the other defendants (Municipality of Binan vs. Garcia, 180 SCRA 576 [1989]). Meaning of just compensation Just compensation means the market value of the property at the time of taking. It means a full and fair equivalent of the property for the loss sustained. Equivalent shall be real, substantial, full and prompt. It must be fair not only to the owner but also to the taker. When should just compensation be determined? The just compensation should be determined at the time of actual taking. The provisions of Sec. 4, Rule 67, Rules of Court to the effect that just compensation is “to be determined at the time of taking of the property or the filing of the complaint, whichever came first” cannot prevail over Sec. 19, RA 7160, the Local Government Code, a substantive law which provides that “the amount to be paid for the expropriate property shall be determined by the proper court based on the fair market value at the time of taking the property.” (The City of Cebu vs. Spouses Degamo, G. R. No. 142971, May 7, 2002).

10. Foreclosure of Real Estate Mortgage

a. Judgment on foreclosure for payment or sale Rule 68, Sec. 2. Judgment on foreclosure for payment or sale. If upon the trial in such action the court shall find the facts set forth in the complaint to be true, it shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as approved by the court, and costs, and shall render judgment for the sum so found due and order that the same be paid to the court or to the judgment obligee within a period of not less than ninety (90) days nor more than one hundred twenty (120) days from the entry of judgment, and that in default of such payment the property shall be sold at public auction to satisfy the judgment. Note: An action to invalidate the mortgage or the foreclosure sale is not a valid ground to oppose issuance of writ of possession. Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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As a rule, any question regarding the validity of the mortgage or its foreclosure cannot be a legal ground for refusing the issuance of a writ of possession. Regardless of whether or not there is a pending suit for annulment of the mortgage or the foreclosure itself, the purchaser is entitled to a writ of possession, without prejudice of course to the eventual outcome of said case. (Sps. Arquiza vs. Court of Appeals, G.R. No. 160479, June 8, 2005)

b. Sale of mortgaged property; effect Rule 68, Sec. 3. Sale of mortgaged property; effect. When the defendant, after being directed to do so as provided in the next preceding section, fails to pay the amount of the judgment within the period specified therein, the court, upon motion, shall order the property to be sold in the manner and under the provisions of Rule 39 and other regulations governing sales of real estate under execution. Such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof, and when confirmed by an order of the court, also upon motion, it shall operate to divest the rights in the property of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law. Upon the finality of the order of confirmation OR upon the expiration of the period of redemption when allowed by law, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property UNLESS a THIRD PARTY is actually holding the same adversely to the judgment obligor. The said purchaser or last redemptioner may secure a writ of possession, upon motion, from the court which ordered the foreclosure

c. Disposition of proceeds of sale Rule 68, Sec. 4. Disposition of proceeds of sale. The amount realized from the foreclosure sale of the mortgaged property shall, after deducting the costs of the sale, be paid to the person foreclosing the mortgage, and when there shall be any balance or residue, after paying off the mortgage debt due, the same shall be paid to junior encumbrancers in the order of their priority, to be ascertained by the court, or if there be no such encumbrancers or there be a balance or residue after payment to them, then to the mortgagor or his duly authorized agent, or to the person entitled to it.

d. Deficiency judgment (1) Instances when court cannot render deficiency judgment Rule 68, Sec. 5. How sale to proceed in case the debt is not all due. If the debt for which the mortgage or encumbrance was held is not all due as provided in the judgment, as soon as a sufficient portion of the property has been sold to pay the total amount and the costs due, the sale shall terminate; and afterwards, as often as more becomes due for principal or interest and other valid charges, the court may, on motion, order more to be sold. But if the property cannot be sold in portions without prejudice to the parties, the whole shall be ordered to be sold in the first instance, and the entire debt and costs shall be paid, if the proceeds of the sale be sufficient therefor, there being a rebate of interest where such rebate is proper. Rule 68, Sec. 6. Deficiency judgment. If upon the sale of any real property as provided in the next preceding section there be a balance due to the plaintiff after applying the proceeds of the sale, the court, upon motion, shall render judgment against the defendant for any such balance for which, by the record of Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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the case, he may be personally liable to the plaintiff, upon which execution may issue immediately if the balance is all due at the time of the rendition of the judgment; otherwise, the plaintiff shall be entitled to execution at such time as the balance remaining becomes due under the terms of the original contract, which time shall be stated in the judgment.

e. Judicial foreclosure versus extrajudicial foreclosure Judicial and extrajudicial foreclosures distinguished Judicial foreclosure of mortgage is governed by Rule 68 and must be done in accordance with the procedure therein prescribed. Extrajudicial foreclosure of mortgage is governed by Act No. 3135 as amended and done by the sheriff pursuant to the special power of attorney inserted in the mortgage document. Extra-judicial Foreclosure (Act 3135) No complaint is filed;

Judicial foreclosure (Rule 68) Complaint is filed with the courts;

There is a right of redemption. Mortgagor has a No right of redemption except when mortgagee right of redemption for 1 year from registration

is a banking institution; equity of redemption

of the sale;

only (90 to 120 days, and any time before confirmation of foreclosure sale);

Mortgagee has to file a separate action to

Mortagagee can move for deficiency judgment

recover any deficiency;

in the same action

Buyer at public auction becomes absolute

Buyer at public auction becomes absolute

owner only after finality of an action for

owner only after confirmation of the sale;

consolidation of ownership; Mortgagee is given a special power of attorney Mortgagee need not be given a special power in the mortgage contract to foreclose the

of attorney.

mortgaged property in case of default. Notes: A writ of possession is “a writ of execution employed to enforce a judgment to recover the possession of land. It commands the sheriff to enter the land and give possession of it to the person entitled under the judgment.” A writ of possession may be issued under the following instances: (1) in land registration proceedings under Section 17 of Act 496; (2) in a judicial foreclosure, provided the debtor is in possession of the mortgaged realty and no third person, not a party to the foreclosure suit, had intervened; (3) in an extrajudicial foreclosure of a real estate mortgage under Section 7 of Act No. 3135, as amended by Act No. 4118; and (4) in execution sales (last paragraph of Section 33, Rule 39 of the Rules of Court). The present case falls under the third instance. Under Section 7 of Act No. 3135, as amended by Act No. 4118, a writ of possession may be issued either (1) within the one-year redemption period, upon the filing of a bond, or (2) after the lapse of the redemption period, Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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without need of a bond. (PNB vs. Sanao Marketing Corporation, G.R. No. 153951, July 29, 2005) A writ of preliminary injunction is issued to prevent an extrajudicial foreclosure, only upon a clear showing of a violation of the mortgagor’s unmistakable right. Unsubstantiated allegations of denial of due process and prematurity of a loan are not sufficient to defeat the mortgagee’s unmistakable right to an extrajudicial foreclosure. (Selegna Management and Development Corporation vs. UCPB, G.R. No. 165662, May 31, 2006) Filing fee in extrajudicial foreclosure The applicant in EXTRAJUDICIAL FORECLOSURE covering properties located in different provinces is required to pay only one filing fee regardless of the number of properties to be foreclosed so long as the application covers only one transaction or indebtedness. The venue however of the extrajudicial foreclosure proceedings is the place where each of the mortgaged properties is located (Benguet Management Corp. vs. Court of Appeals, G.R. No. 153571, Sept. 16, 2003) The venue of the action for the NULLIFICATION OF THE FORECLOSURE SALE is properly laid with the Malolos RTC although two of the properties together with the Bulacan properties are situated in Nueva Ecija. The venue of real actions affecting properties found in different provinces is determined by the SINGULARITY or PLURALITY of the transactions involving said parcels of land. Where said parcels are the object of one and the same transaction, the venue is in the court of any of the provinces wherein a parcel of land is situated (United Overseas Bank Phils. (formerly Westmont Bank) vs. Rosemoor Mining & Development Corp., G.R. Nos. 159669 & 163521, March 12, 2007). Rule 68 governs the judicial foreclosure of mortgages. Extrajudicial foreclosure of mortgages, which was what transpired in the case at bar, is governed by Act No. 3135, as amended by Act No. 4118, Section 6 of Republic Act No. 7353, Section 18 of Republic Act No. 7906, and Section 47 of Republic Act No. 8791. A.M. No. 99-10-05-0, issued on December 14, 1999, provides for the procedure to be observed in the conduct of an extrajudicial foreclosure sale. . Unlike Rule 68, which governs judicial foreclosure sales, neither Act No. 3135 as amended, nor A.M. No. 99-10-05-0 grants to junior encumbrancers the right to receive the balance of the purchase price. The only right given to second mortgagees in said issuances is the right to redeem the foreclosed property pursuant to Section 6 of Act No. 3135, as amended by Act No. 4118 (Monzon vs. Relova, G.R. No. 171827, September 17, 2008). Unlike a judicial foreclosure of real estate mortgage under Rule 68 of the Rules of Court where an action for foreclosure is brought before the RTC where the mortgaged property or any part thereof is situated, any property brought within the ambit of Act 3135 is foreclosed by the filing of a petition, not with any court of justice, but with the office of the sheriff of the province where the sale is to be made. As such, a third person in possession of an extrajudicially Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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foreclosed property, who claims a right superior to that of the original mortgagor, is thus given no opportunity to be heard in his claim. It stands to reason, therefore, that such third person may not be dispossessed on the strength of a mere ex-parte possessory writ, since to do so would be tantamount to his summary ejectment, in violation of the basic tenets of due process. Hence, it was not a ministerial duty of the trial court under Act No. 3135 to issue a writ of possession for the ouster of respondent from the lot subject of this instant case, particularly in light of the latter's opposition and claim of ownership and rightful possession of the disputed properties. (Dayot vs. Shell Chemical Company, (Phils.), Inc., G.R. No. 156542, June 26, 2007) A mortgage-creditor may, in the recovery of a debt secured by a real estate mortgage, institute against the mortgage-debtor either a (a) personal action for debt or a (b) real action to foreclose the mortgage. These remedies available to the mortgage-creditor are deemed ALTERNATIVE and NOT CUMULATIVE. An election of one remedy operates as a waiver of the other. Hence, a remedy is deemed chosen upon the filing by the mortgagecreditor of the suit for collection or upon his filing of the complaint in an action for foreclosure of mortgage, pursuant to the provisions of Rule 68 of the Rules of Court. The impliedly instituted civil action in Criminal Cases No. 612-90 to No. 615-90 for violation of Batas Pambansa Blg. 22 was, in effect, a collection suit or suit for the recovery of the mortgagedebt since the dishonored checks involved in the said criminal cases were issued by respondent Eulogio to petitioner for the payment of the same loan secured by the Deed of Real Estate Mortgage. This precludes the petitioner from subsequently availing himself of the action to foreclose the mortgaged property (Chieng vs. Spouses Santos, G.R. No. 169647, August 31, 2007). Where the mortgage creditor chooses the remedy of foreclosure and the proceeds of the foreclosure sale are insufficient to cover the debt, the mortgagee is entitled to claim the deficiency from the debtor. The law gives the mortgagee the right to claim for the deficiency resulting from the price obtained in the sale of the property at public auction and the outstanding obligation at the time of the foreclosure proceedings. This rule is based on the principle earlier mentioned that the mortgage is only a security and not a satisfaction of the mortgagor’s entire obligation. (Suico Rattan & Buri Interiors, Inc. vs. Court of Appeals, G.R. No. 138145, June 15, 2006)

f. Equity of redemption versus right of redemption Right of redemption Right of redemption is the prerogative to re-acquire the mortgaged property after registration of the foreclosure sale – exists only in extrajudicial foreclosure of mortgage. No such right is recognized in judicial foreclosure except only when mortgagee is the PNB or a bank or banking institution. In extrajudicial foreclosure, mortgagor may exercise right of redemption within one year from registration of sheriff’s certificate of foreclosure sale. Equity of redemption Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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Equity of redemption in judicial foreclosure of mortgage is the right to pay the court or the judgment obligee the amount of the judgment within a period of not less than 90 days nor more than 120 days from entry of judgment or even before confirmation of sale by the court. After such order of confirmation, no redemption can be effected. Limpin vs. IAC, 166 SCRA 87 (1988) In default of such payment, the property shall be sold at public auction to satisfy the judgment (Rule 68, Sec, 2).

Equity of Redemption

Right of Redemption

The right of defendant mortgagor to extinguish A right granted to a debtor mortgagor, his the mortgage and retain ownership of the

successor in interest or any judicial creditor or

property by paying the debt within 90 to 120

judgment creditor or any person having a lien

days after the entry of judgment or even after

on the property subsequent to the mortgage or

the foreclosure sale but prior to confirmation.

deed of trust under which the property is sold to repurchase the property within one year even after the confirmation of the sale and even after the registration of the certificate of foreclosure sale.

May be exercised even after the foreclosure

There is no right of redemption in a judicial

sale provided it is made before the sale is

foreclosure of mortgage under Rule 68. This

confirmed by order of the court.

right of redemption exists only in extrajudicial foreclosures where there is always a right of redemption within one year from the date of sale(Sec. 3, Act 3135), but interpreted by the Court to mean one year from the registration of the sale.

May also exist in favor or other encumbrances. General rule: In judicial foreclosures there is If subsequent lien holders are not impleaded as only an equity of redemption which can be parties in the foreclosure suit, the judgment in

exercised prior to the confirmation of the

favor of the foreclosing mortgagee does not

foreclosure sale. This means that after the

bind the other lien holders. In this case, their

foreclosure sale but before its confirmation, the

equity of redemption remains unforeclosed. A

mortgagor may exercise his right of pay the

separate foreclosure proceeding has to be

proceeds of the sale and prevent the

brought against them to require them to redeem confirmation of the sale. from the first mortgagee or from the party acquiring the title to the mortgaged property. If not by banks, the mortgagors merely have an Exception: there is a right of redemption if the equity of redemption, which is simply their right, foreclosure is in favor of banks as mortgagees, Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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as mortgagor, to extinguish the mortgage and

whether the foreclosure be judicial or

retain ownership of the property by paying the

extrajudicial. This right of redemption is

secured debt prior to the confirmation of the

explicitly provided in Sec. 47 of the General

foreclosure sale.

Banking Law of 2000. While the law mentions the redemption period to be one year counted from the date of registration of the certificate in the Registry of Property

The failure to register the certificate of sale in a judicial foreclosure is of no consequence. The registration of the sale is required only in extra-judicial foreclosure sale because the date of the registration is the reckoning point for the exercise of the right of redemption. In contrast, the registration of the sale is superfluous in judicial foreclosure because only the equity of redemption is granted to the mortgagor, except in mortgages with banking institutions. The equity of redemption is the right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the secured debt within the 90-day period after the judgment becomes final, or even after the foreclosure sale but prior to the confirmation of the sale. In this case, only equity of redemption was granted. Hence, registration of sale is not required for the period to commence to run. (Robles v. Yapcinco, G.R. No. 169568, October 22, 2014). Requisites for valid redemption in extrajudicial foreclosure 1. Redemption must be made within 12 months from registration of sale in the Register of Deeds. 2. Payment of purchase price plus 1% interest per month, together with assessments or taxes thereon, if any, paid by the purchaser after the sale with the same rate of interests. 3. Written notice of the redemption must be served on the officer who made the sale and a duplicate filed with the Register of Deeds (Rosales vs. Yboa, 120 SCRA 869 [1983]). Deficiency judgment Deficiency judgment may be awarded in favor of the plaintiff against the mortgagor, if the proceeds of the sale of the property are not sufficient to satisfy the judgment. Motion for deficiency judgment must be filled after then sale, when the deficiency is known. What is the prescriptive period to file action for deficiency in extrajudicial foreclosure of real estate mortgage? Ten (10) years (Arts. 1144 and 1142, Civil Code) Writ of possession in extrajudicial foreclosure of mortgage De Vera vs. Agloro, 448 SCRA 203 (2005) The purchaser at public auction, who has a right to possession that extends after the expiration of the redemption period, becomes the absolute owner of the property when no redemption is made After the 1 year period, the mortgagor loses all interest over it. The bond required under Sec. 7 of RA 3135 is no longer needed. Possession becomes an absolute right of the Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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purchaser as confirmed owner. The purchaser can demand possession at any time following the consolidation of ownership in his name and the issuance to him of a new TCT. After the consolidation of title in the buyer’s name for failure of the mortgagor to redeem the property, the writ of possession becomes a matter of right. Its issuance to a purchaser in an extrajudicial foreclosure is a merely ministerial function. An ex parte petition for issuance of a possessory writ under Sec. 7 of Act 3135 is not, strictly speaking, a “judicial process” as contemplated in Art. 433 of the Civil Code – it is a non-litigious proceeding authorized in an extrajudicial foreclosure of mortgage. It is brought for the benefit of one party only, and without notice to, or consent by any person adversely interested. No need to notify the mortgagors since they had already lost all their interests in the property when they failed to redeem the same. Even if the mortgagor appeals an order denying a petition assailing the writ of possession granted to the buyer and the sale at public auction, the buyer remains in possession of the property pending resolution of the appeal. It is the ministerial duty of the court to issue writ of possession in favor of the purchaser in a foreclosure sale. The trial court has no discretion on the matter.

11. Partition Define partition Partition is the division between two or more persons of real or personal property which they own as co-partners, joint tenants or tenants in common, effected by the setting apart of such interests so that they may enjoy and possess it severally. Purpose is to put an end to the common tenancy of the land or co-ownership. Presupposes that the thing to be divided is owned in common. It is immaterial in whose name the properties were declared for taxation purposes for it is presumed beforehand that the parties to the partition admit the fact of co-ownership and now want to effect a separation of interest. What are the issues in an action for partition? Action for partition raises two issues: 1. whether plaintiff is co-owner of property 2. assuming plaintiff is co-owner, how to divide the property between plaintiff and defendant or among the co-owners

a. Who may file complaint; who should be made defendants Rule 69, Section 1. Complaint in action for partition of real estate. A person having the right to compel the partition of real estate may do so as provided in this Rule, setting forth in his complaint the nature and extent of his title and an adequate description of the real estate of which partition is demanded and joining as defendants all other persons interested in the property. NOTES: Who are indispensable parties in partition? ALL the co-owners Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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Who may effect partition? Partition of the estate of a decedent may only be effected by (1) the heirs themselves extrajudicially, (2) the court in an ordinary action for partition, (3) testator himself, and (4) the third person designated by the testator Partition of the estate may not be ordered in an action for quieting of title (Alejandrino vs. CA, 295 SCRA 536 [1998])

In an action for partition, all other persons interested in the property shall be joined as defendants. Not only the co-heirs but also all persons claiming interests or rights in the property subject of partition are indispensable parties. In the instant case, it is the responsibility of Panfilo as plaintiff in Civil Case No. 15465 to implead all indispensable parties, that is, not only Faustino and Danilo but also respondents in their capacity as vendees and donees of the subject fishponds. Without their presence in the suit the judgment of the court cannot attain real finality against them. Being strangers to the first case, they are not bound by the decision rendered therein; otherwise, they would be deprived of their constitutional right to due process. In a complaint for partition, the plaintiff seeks, first, a declaration that he is a coowner of the subject properties; and second, the conveyance of his lawful shares. An action for partition is at once an action for declaration of co-ownership and for segregation and conveyance of a determinate portion of the properties involved. (Abalos vs. Bucal, G.R. No. 156224, February 19, 2008 ). Partition is the proper remedy for compulsory or legal heirs to get their legitime or share of the inheritance from the decedent. An action for partition is at once an action for declaration of co-ownership and for segregation and conveyance of a determinate portion of the properties involved. Being a compulsory heir of Don Fabian, Tirso has the right to compel partition of the properties comprising the intestate estate of Don Fabian as a measure to get his hereditary share. His right as an heir to a share of the inheritance covers all the properties comprising the intestate estate of Don Fabian at the moment of his death. Before partition and eventual distribution of Don Fabian’s intestate estate, a regime of coownership among the compulsory heirs existed over the undivided estate of Don Fabian. Being a co-owner of that intestate estate, Tirso’s right over a share thereof is imprescriptible. Contrary to petitioners’ stance, reconveyance is not the proper remedy available to Tirso. Tirso is not asserting total ownership rights over the subject properties, but only insofar as his legitime from the intestate estate of his father, Don Fabian, is concerned. (Monteroso vs. Court of Appeals, G.R. No. 105608, April 30, 2008). Which court has jurisdiction over partition? RTC – if the action is considered incapable of pecuniary estimation. Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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However, since the action affects interest in real property, jurisdiction shall be determined by inquiring into the assessed value of the property (Sec. 19 (2), BP 129, as amended by RA 7691). Hence an action for partition may be filed in the MTC, if the assessed value is not more than P20,000.00 or P50,000.00. If the subject matter is personal property, where the value is not more than P300,000.00 or P400,000.00. Guidance can be obtained from Heirs of Valeriano Concha, Sr. vs. Lumocso (G.R. No. 158121, December 12, 2007) which explains the character of actions for reconveyance of real property, cancellation of title, quieting of title and other actions involving any interest in real property.

b. Matters to allege in the complaint for partition Contents of the Complaint: 1. Nature and extent of his title; 2. Adequate description of the real estate of which partition is demanded; and 3. Defendants and all other persons interested in the property are joined. (Rules of Court, Rule 69, Section 1)

c. Two (2) stages in every action for partition Two Stages of the Action 1) First Stage – Determination of the propriety of partition This involves a determination of whether the subject property is owned in common and whether all the co-owners are made parties in the case. All co-owners are indispensable parties. (Rule 3, Section 7. Compulsory joinder of indispensable parties. Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants) The order may also require an accounting of rents and profits recovered by the defendant. This order of partition and accounting is appealable.(Miranda v. Court of Appeals, No. L-33007, June 18, 1976, 71 SCRA 295). Appeal period is 30 days, and record on appeal is necessary. If not appealed, then the parties may partition the common property in the way they want. If they cannot agree, then the case goes into the second stage. However, the order of accounting may in the meantime be executed. (De Mesa v. Court of Appeals, G.R. No. 109387, April 25, 1994, 231 SCRA 773) 2) Second Stage - The actual partitioning of the subject property If the parties are unable to agree upon the partition, the partition shall be done for the parties with the assistance of not more than three (3) commissioners. (Municipality of Biñan v. Garcia, GR No. 69260, December 22, 1989) This is also a complete proceeding and the order or decision is appealable. Appeal period is 15 days. Record on appeal is not necessary. N.B. The second stage may include accounting of fruits and income of the property (R69S2). However, It is possible for a judgment of accounting to be rendered first before the judgment of partition, which means that there will be three stages. For an appeal from the first and second stages, appeal period is 30 days and record on appeal is required. The rationale for a record on Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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appeal in multple appeals is to enable the rest of the case to proceed in the event that a separate issue is resoved by the court and held to be final (Roman Archbishop of Manila vs.Court of Appeals, G.R. No. 111324, July 5, 1996)

d. Order of partition and partition by agreement Rule 69, Sec. 2. Order for partition, and partition by agreement thereunder. If after the trial the court finds that the plaintiff has the right thereto, it shall order the partition of the real estate among all the parties in interest. Thereupon the parties may, if they are able to agree, make the partition among themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed upon by all the parties, and such partition, together with the order of the court confirming the same, shall be recorded in the registry of deeds of the place in which the property is situated.

e. Partition by commissioners; Appointment of commissioners, Commissioner’s report; Court action upon commissioner’s report Rule 69 Sec. 5. Assignment or sale of real estate by commissioners. When it is made to appear to the commissioners that the real estate, or a portion thereof, cannot be divided without prejudice to the interests of the parties, the court may order it assigned to one of the parties willing to take the same, provided he pays to the other parties such amounts as the commissioners deem equitable, unless one of the interested parties asks that the property be sold instead of being so assigned, in which case the court shall order the commissioners to sell the real estate at public sale under such conditions and within such time as the court may determine. Sec. 6. Report of commissioners; proceedings not binding until confirmed. The commissioners shall make a full and accurate report to the court of all their proceedings as to the partition, or the assignment of real estate to one of the parties, or the sale of the same. Upon the filing of such report, the clerk of court shall serve copies thereof on all the interested parties with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire. No proceeding had before or conducted by the commissioners shall pass the title to the property or bind the parties until the court shall have accepted the report of the commissioners and rendered judgment thereon. Sec. 7. Action of the court upon commissioners’ report. Upon the expiration of the period of ten (10) days referred to in the preceding section, or even before the expiration of such period but after the interested parties have filed their objections to the report or their statement of agreement therewith, the court may, upon hearing, accept the report and render judgment in accordance therewith; or, for cause shown, recommit the same to the commissioners for further report of facts; or set aside the report and appoint new commissioners; or accept the report in part and reject it in part; and may make such order and render such judgment as shall effectuate a fair and just partition of the real estate, or of its value, if assigned or sold as above provided, between the several owners thereof. Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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f. Judgment and its effects Rule 69, Sec. 11. The judgment and its effect; copy to be recorded in registry of deeds. If actual partition of property is made, the judgment shall state definitely, by metes and bounds and adequate description, the particular portion of the real estate assigned to each party, and the effect of the judgment shall be to vest in each party to the action in severalty the portion of the real estate assigned to him. If the whole property is assigned to one of the parties upon his paying to the others the sum or sums ordered by the court, the judgment shall state the fact of such payment and of the assignment of the real estate to the party making the payment, and the effect of the judgment shall be to vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties to the action. If the property is sold and the sale confirmed by the court, the judgment shall state the name of the purchaser or purchasers and a definite description of the parcels of real estate sold to each purchaser, and the effect of the judgment shall be to vest the real estate in the purchaser or purchasers making the payment or payments, free from the claims of any of the parties to the action. A certified copy of the judgment shall in either case be recorded in the registry of deeds of the place in which the real estate is situated, and the expenses of such recording shall be taxed as part of the costs of the action.

g. Partition of personal property Rule 69, Sec. 13. Partition of personal property. The provisions of this Rule shall apply to partitions of estates composed of personal property, or of both real and personal property, in so far as the same may be applicable.

h. Prescription of action Prescription of Action Action for partition is imprescriptible for as long as the co-owners expressly or impliedly recognize the co-ownership. (Heirs of Bartolome Infante and Juliana Infante vs. Court of Appeals, G.R. No. 77202 June 22, 1988) However, if a co-owner repudiates the coownership and makes known such repudiation to the other co-owners, then partition is no longer a proper remedy of the aggrieved co-owner. S/he should filed an accion reivindicatoria which is prescriptible. (Heirs of Catalino Jardin v. Heirs of Sixto Hallasgo, G.R. No. L-55225 September 30, 1982)

12. Forcible Entry and Unlawful Detainer Distinguish forcible entry (FE) from unlawful detainer (UD) a. Nature of possession. In FE, the defendant’s possession is illegal from the beginning. In UD, the defendant’s possession is legal at the beginning but becomes illegal by reason of termination of the lessee’s right over the property b. Prior physical possession. In FE, the plaintiff is deprived of prior physical possession through force, intimidation, threats, strategy or stealth. In UD, prior physical possession by the plaintiff is not alleged because the defendant withholds possession after the expiration of his right to possess. Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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c. Demand. In FE, no demand to vacate is required by law before filing of the action. In UD, demand is jurisdictional. d. Computation of period. In FE, the one year period is counted from actual entry into the land. In UD, the one year period is counted from the last demand. Sufficiency of complaint for unlawful detainer A simple allegation that the defendant is unlawfully withholding the property is sufficient without necessarily employing the terminology of the law. In an unlawful detainer case, the defendant’s possession was originally lawful but ceased to be so by the expiration of his right to possess (Barba vs. CA, G.R. No. 126638, February 6, 2002). When there are several demands to vacate In case several demands to vacate are made, the period is reckoned from the date of the LAST DEMAND. Possession by tolerance When there is possession by tolerance, possession or detainer becomes illegal only from the time that there is a DEMAND to vacate. The year for bringing the action for illegal detainer should be counted only from such demand (Ballesteros vs. Abion, G. R. No. 143661, Feb. 9, 2006). Estoppel to question jurisdiction Where the action for FEUD was filed with the RTC, but the defendant did not move to dismiss on such ground, filed his answer and went to trial, and thereafter the trial court rendered judgment, estoppel by laches has already set in and precludes the defendant from assailing the judgment on such ground (Velarma vs. CA, 252 SCRA 406 [1996]). When to count one-year period in forcible entry The one year period within which to bring an action for forcible entry is generally counted from the date of ACTUAL ENTRY on the land, except that when entry was made thru stealth, the one year period should be counted from the time the plaintiff made the demand to defendant to vacate the land upon learning of such dispossession (Ballesterso vs. Abion, supra). Stealth – any secret, sly or clandestine act to avoid discovery and to gain entrance into or remain within the residence of another without permission (Ong vs. Parel, 355 SCRA 691 [2001]). Effect of claim of ownership on MTC jurisdiction Hilario vs. CA, 260 SCRA 420 (1996) a. All forcible entry and unlawful detainer cases have to be tried pursuant to the Revised Rule on Summary Procedure regardless of whether or not the issue of ownership is alleged by a party. b. Inferior courts retain jurisdiction over ejectment cases even if the question of possession cannot be resolved without passing upon the issue of ownership Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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subject to the same caveat that the issue posed as to ownership could be resolved by the court for the sole purpose of determining the issue of possession. c. An adjudication made therein regarding the issue of ownership should be regarded as merely PROVISIONAL and therefore would not bar or prejudice an action between the same parties involving title to the land. d. Jurisdiction over the subject matter is determined by the nature of the action as alleged or pleaded in the complaint. Even where defendant alleges ownership or title in his answer, the court will not be divested of jurisdiction. A contrary rule would pave the way for defendant to trifle with the ejectment suit, which is summary in nature, as he could easily defeat the same through the simple expedient of asserting ownership. . Cases that do not affect ejectment suit Wilmont Auto Supply vs. CA, 208 SCRA 108 (1992) 1. Injunction suits instituted in the RTC by defendants in ejectment actions in the municipal trial courts or other courts of the first level do not abate the latter; and neither do proceedings on consignation of rentals. 2. An accion publiciana does not suspend an ejectment suit against the plaintiff in the former. 3. A writ of possession case where ownership is concededly the principal issue before the Regional Trial Court does not preclude nor bar the execution of the judgment in an unlawful detainer suit where the only issue involved is the material possession or possession de facto of the premises. 4. An action for quieting of title to property is not a bar to an ejectment suit involving the same property. 5. Suits for specific performance with damages do not affect ejectment actions (e.g., to compel renewal of a lease contract) 6. An action for reformation of instrument (e.g., from deed of absolute sale to one sale with pacto de retro) does not suspend an ejectment suit between the same parties. 7. An action for reconveyance of property or accion reivindicatoria also has no effect on ejectment suits regarding the same property. 8. Suits for annulment of sale, or title, or document affecting property operate to abate ejectment actions respecting the same property. Effect of absence of title Pajuyo vs. CA, 430 SCRA 492 (2004) a. The absence of title over a contested lot is not a ground for the courts to withhold relief from the parties in an ejectment case. b. Ownership or the right to possess arising from ownership is not an issue in an action for recovery of possession. c. The parties cannot present evidence to prove ownership or right to legal possession except to prove the nature of the possession when necessary to resolve the issue of physical possession. Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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d. The underlying philosophy behind exectment suits is to prevent breach of the peace and criminal disorder and to compel the party out of possession to respect and resort to the law alone to obtain what he claims to be his. The party should not take the law into his own hands. e. Courts must resolve the issue of possession even if the parties to the ejectment are SQUATTERS. Courts should not leave squatters to their own devices in cases involving recovery of possession. Any one of the co-owners may bring an action for ejectment Art. 487 of the Civil Code allows a co-owner to bring an action for ejectment, which covers all kinds of actions for the recovery of possession, including forcible entry and unlawful detainer, without the necessity of joining all the other co-owners as co-plaintiffs, because the suit is deemed to be instituted for the benefit of all. An attorney in fact of a co-owner can file the ejectment suit Since Art. 487 authorizes any one of the co-owners to bring an action for ejectment and the suit is deemed to be for the benefit of all, without the co-owners actually giving consent to the suit, it follows that an attorney-in-fact of the plaintiff co-owner does not need authority from al the co-owners. The execution of the certification against forum shopping by the attorney-in-fact is proper The execution of the certification against forum shopping by the attorney-in-fact is not a violation of the requirement that the parties must personally sign the same. The AIF, who has authority to file the same, and who actually filed the complaint as the representative of the plaintiff co-owner, pursuant to a SPA, is a PARTY to the ejectment suit. In fact, Sec. 1, Rule 70 includes the representative of the owner in an ejectment suit as one of the parties authorized to institute the proceedings.

a. Definitions and Distinction What are the kinds of actions for the recovery of possession of real property? 1. Accion interdictal - summary action for forcible entry and unlawful detainer which is brought within one (1) year from dispossession. MTC has exclusive jurisdiction. 2. Accion publiciana - plenary action to recover the right of possession when dispossession has lasted for more than one year or when dispossession was effected by means other than those mentioned in Rule 70, Sec. 1. Jurisdiction depends on assessed value of the property. 3. Accion reivindicatoria - action to recover ownership, including the recovery of possession. Jurisdiction depends on assessed value of the property. Forcible Entry The possession of defendant is unlawful from

Unlawful Detainer The possession of defendant is lawful from the

the beginning; issue is which party has prior de beginning but becomes illegal by reason of the facto possession

expiration or termination of his right to the th

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possession of the property; The law does not require previous demand for Plaintiff must first make such demand which is the defendant to vacate

jurisdictional in nature;

Plaintiff must prove that he was in prior physical Plaintiff need not have been in prior physical possession of the premises until he was

possession;

deprived by defendant; and The one year period is generally counted from The one-year period is counted from the date of the date of actual entry on the property.

last demand.

b. Distinguished from accion publiciana and accion reinvindicatoria Accion Publiciana

Accion Reinvindicatoria

A plenary ordinary civil action for the recovery of the

An action for the recovery of the

better right of possession (juridical possession), must

exercise of ownership, particularly

be filed after the expiration of one year from the accrual recovery of possession as an attribute of the cause of action or from the unlawful withholding

or incident of ownership;

of possession of the realty. In other words, if at the time of the filing of the complaint more than one year had elapsed since defendant had turned plaintiff out of possession or defendant’s possession had become illegal, the action will be not one of forcible entry or unlawful detainer but an accion publiciana (Valdez vs, CA, G.R. No. 132424, May 2, 2006). The basis of the recovery of possession is plaintiff’s real The basis for the recovery of right of possession or jus possessionis, which is the

possession is ownership itself.

right to the possession of the real property independent of ownership.

c. How to determine jurisdiction in accion publiciana and accion reinvindicatoria Jurisdiction is determined by the assessed value of the property. Sec. 22 of BP 129 as amended by R.A. No. 7691 (where the assessed value of the real property does not exceed P20,000.00 or P50,000.00 in Metro Manila) grants the MTC exclusive jurisdiction over subject case.The nature of an action is determined not by what is stated in the caption of the complaint but its allegations and the reliefs prayed for. Where the ultimate objective of the plaintiff is to obtain title to real property, it should be filed in the Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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proper court having jurisdiction over the assessed value of the property subject thereof. (Barangay Piapi vs. Talip, 469 SCRA 409 [2005]; Quinagoran vs. Court of Appeals, G.R. No. 155179. August 24, 2007) The actions envisaged in the aforequoted provisions (Secs. 19 and 33. BP 129, as amended by RA 7691) are accion publiciana and reivindicatoria. To determine which court has jurisdiction over the action, the complaint must allege the assessed value of the real property subject of the complaint or the interest thereon (Laresma vs. Abellana, G.R. No. 140973, November 11, 2004, 442 SCRA 156) Real and in personam actions 1. Forcible entry and unlawful detainer actions are actions affecting possession of real property and hence are real actions. Venue is the place where the property subject of the action is situated (Sec. 1, Rule 4). 2. They are also actions in personam because the plaintiff seeks to enforce a personal obligation on the defendant to vacate the property subject of the action. restore physical possession thereof to the plaintiff, and pay actual damages by way of reasonable compensation for his use or occupation of the property (Domagas vs. Jensen, G.R. No. 158407, January 17, 2005 ). In forcible entry or unlawful detainer cases, the only damage that can be recovered is the fair rental value or the reasonable compensation for the use and occupation of the leased property. The reason for this is that the only issue raised in ejectment cases is that of rightful possession; hence, the damages which could be recovered are those which the plaintiff could have sustained as a mere possessor, or those caused by the loss of the use and occupation of the property, and not the damages which he may have suffered but which have no direct relation to his loss of material possession. (Dumo vs. Espinas, G.R. No. 141962, January 25, 2006) •

In forcible entry cases, the prescriptive period is counted from the date of defendant’s actual entry on the land; in unlawful detainer, from the date of the last demand to vacate. Hence, to determine whether the case was filed on time, there was a necessity to ascertain whether the complaint was one for forcible entry or unlawful detainer (Canlas vs. Tubil, G.R. No. 184285, September 25, 2009).

•

Does the RTC have jurisdiction over all cases of recovery of possession regardless of the value of the property involved? NO. The doctrine that all cases of recovery of possession or accion publiciana lies with the regional trial courts regardless of the value of the property — no longer holds true. As things now stand, a distinction must be made between those properties the assessed value of which is below P20,000.00, if outside Metro Manila; and P50,000.00, if within (Quinagoran vs. Court of Appeals, G.R. No. 155179. August 24, 2007)

•

Specifically, the regional trial court exercises exclusive original jurisdiction "in all civil Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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actions which involve possession of real property." However, if the assessed value of the real property involved does not exceed P50,000.00 in Metro Manila, and P20,000.00 outside of Metro Manila, the municipal trial court exercises jurisdiction over actions to recover possession of real property (Atuel vs. Valdez, June 10, 2003, 403 SCRA 517, 528). •

All cases involving title to or possession of real property with an assessed value of less than P20,000.00 if outside Metro Manila, fall under the original jurisdiction of the municipal trial court. (Aliabo v. Carampatan, G.R. No. 128922, March 16, 2001, 354 SCRA 548, 552).

•

A complaint must allege the assessed value of the real property subject of the complaint or the interest thereon to determine which court has jurisdiction over the action. This is because the nature of the action and which court has original and exclusive jurisdiction over the same is determined by the material allegations of the complaint, the type of relief prayed for by the plaintiff and the law in effect when the action is filed, irrespective of whether the plaintiffs are entitled to some or all of the claims asserted therein. ( Laresma v. Abellana, G.R. No. 140973, November 11, 2004, 442 SCRA 156; Hilario v. Salvador, G.R. No. 160384, April 29, 2005, 457 SCRA 815).

•

A complaint for reconveyance of a parcel of land which involves title to or interest in real property should allege the assessed value of the land. The complaint specified only the market value or estimated value which is P15,000.00. In the absence of an assessed value, or in lieu thereof, the estimated value may be alleged.

•

Sec. 22 of BP 129 as amended by R.A. No. 7691 (where the assessed value of the real property does not exceed P20,000.00 or P50,000.00 in Metro Manila) grants the MTC exclusive jurisdiction over subject case.The nature of an action is determined not by what is stated in the caption of the complaint but its allegations and the reliefs prayed for. Where the ultimate objective of the plaintiff is to obtain title to real property, it should be filed in the proper court having jurisdiction over the assessed value of the property subject thereof. (Barangay Piapi vs. Talip, 469 SCRA 409 [2005]).

•

The determining jurisdictional element for the accion reivindicatoria is, as RA 7691 discloses, the assessed value of the property in question. For properties in the provinces, the RTC has jurisdiction if the assessed value exceeds P20,000, and the MTC, if the value is P20,000 or below. An assessed value can have reference only to the tax rolls in the municipality where the property is located, and is contained in the tax declaration. It is the amount in the tax declaration that should be consulted and no other kind of value, and as appearing in Exhibit B, this is P5,950. The case, therefore, falls within the exclusive original jurisdiction of the Municipal Trial Court of Romblon which has jurisdiction over the territory where the property is located, and not the court a quo. (Hilario vs. Salvador, G.R. No. 160384. April 29, 2005, 457 SCRA 815)

Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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•

•

The actions envisaged in the aforequoted provisions (Secs. 19 and 33. BP 129, as amended by RA 7691) are accion publiciana and reivindicatoria. To determine which court has jurisdiction over the action, the complaint must allege the assessed value of the real property subject of the complaint or the interest thereon. The complaint does not contain any allegation of the assessed value of Lot 4-E covered by TCT No. 47171. There is, thus, no showing on the face of the complaint that the RTC had exclusive jurisdiction over the action of the respondent. Moreover, as gleaned from the receipt of realty tax payments issued to the respondent, the assessed value of the property in 1993 was P8,300.00. Patently then, the Municipal Trial Court of Aloguinsan, Cebu, and not the Regional Trial Court of Toledo City, had exclusive jurisdiction over the action of the respondent. Hence, all the proceedings in the RTC, including its decision, are null and void (Laresma vs. Abellana, G.R. No. 140973, November 11, 2004, 442 SCRA 156; Aliabo vs. Carampatan, G.R. No. 128922, March 16, 2001, 354 SCRA 548).; Ouano vs. PGTT Int'l. Investment Corporation, ,G.R. No. 134230, July 17, 2002, 384 SCRA 589 ).

•

With the modifications introduced by RA No. 7691 in 1994, the jurisdiction of the first level courts has been expanded to include jurisdiction over other real actions where the assessed value does not exceed P20,000, 000, and P50,000.00 where the action is filed in Metro Manila. The first level courts thus have exclusive original jurisdiction over accion publiciana and accion reinvidicatoria where the assessed value of the property does not exceed the aforementioned amounts. Accordingly, the jurisdictional element is the assessed value of the property (Vda. de Barrera vs. Heirs of Legaspi, G.R. No. 174346, September 12, 2008).

•

Accion publiciana is the plenary action to recover the right of possession which should be brought in the proper regional trial court when dispossession has lasted for more than one year (Canlas vs. Tubil, G.R. No. 184285, September 25, 2009). NOTE: This ruling as to where to bring action is contrary to the recent cases holding that jurisdiction depends on assessed value of the property.

•

Mandatory allegations for the municipal trial court to acquire jurisdiction over forcible entry First, the plaintiff must allege his prior physical possession of the property. Second, he must also allege that he was deprived of his possession by force, intimidation, threat, strategy or stealth. If the alleged dispossession did not occur by any of these means, the proper recourse is to file not an action for forcible entry but a plenary action to recover possession with the Regional Trial Court (Benguet Corporation vs. Cordillera Caraballo Mission, Inc., G.R. No.155343, September 2, 2005). NOTE: This ruling as to where to bring action is contrary to the recent cases holding that jurisdiction depends on assessed value of the property.

In order to constitute force that would justify a forcible entry case, the trespasser does not have to institute a state of war. The act of going to the property and excluding the lawful possessor therefrom necessarily implies the exertion of force over the property which is all that is necessary and sufficient to show that the action is based Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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on the provisions of Section 1, Rule 70 of the Rules of Court. The words ‘by force, intimidation, threat, strategy or stealth’ include every situation or condition under which one person can wrongfully enter upon real property and exclude another, who has had prior possession therefrom (Bunyi vs. Factor, G.R. No. 172547, June 30, 2009) •

For one to be considered in possession, one need not have actual or physical occupation of every square inch of the property at all times. Possession can be acquired not only by material occupation, but also by the fact that a thing is subject to the action of one’s will or by the proper acts and legal formalities established for acquiring such right. Possession can be acquired by juridical acts. These are acts to which the law gives the force of acts of possession. Examples of these are donations, succession, execution and registration of public instruments, and the inscription of possessory information titles (Id.).

•

As a general rule, an ejectment suit cannot be abated or suspended by the mere filing before the regional trial court (RTC) of another action raising ownership of the property as an issue. As an exception, however, unlawful detainer actions may be suspended even on appeal, on considerations of equity, such as when the demolition of petitioners' house would result from the enforcement of the municipal circuit trial court (MCTC) judgment. (Amagan vs. Marayag, G.R. No. 138377, February 28, 2000)

•

Even if RTC judgments in unlawful detainer cases are immediately executory (under Sec. 21 of Rule 70), preliminary injunction may still be granted. There need only be clear showing that there exists a right to be protected and that the acts against which the writ is to be directed violate said right.(Benedicto vs. CA, G.R. No. 157604, October 19, 2005)

d. Who may institute the action and when; against whom the action may be maintained Rule 70, Section 1. Who may institute proceedings, and when. Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person, may, at any time within one (1) year after such unlawful deprivation or withholding of possession, bring an action in the proper Municipal Trial Court against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs.

e. Pleadings allowed Rule 70, Sec. 4. Pleadings allowed. The only pleadings allowed to be filed are the complaint, compulsory counterclaim and cross-claim pleaded in the answer, and the answers thereto. All pleadings shall be verified. Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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f. Action on the complaint Rule 70, Sec. 5. Action on complaint. The court may, from an examination of the allegations in the complaint and such evidence as may be attached thereto, dismiss the case outright on any of the grounds for the dismissal of a civil action which are apparent therein. If no ground for dismissal is found, it shall forthwith issue summons.

g. When demand is necessary Demand in unlawful detainer • Petitioner, as vendor, must comply with two requisites for the purpose of bringing an ejectment suit: (a) there must be failure to pay the installment due or comply with the conditions of the Contract to Sell; and (b) there must be demand both to pay or to comply and vacate within the periods specified in Section 2 of Rule 70, namely: 15 days in case of land and 5 days in case of buildings. The first requisite refers to the existence of the cause of action for unlawful detainer, while the second refers to the jurisdictional requirement of demand in order that said cause of action may be pursued. Both demands – to pay installment due or adhere to the terms of the Contract to Sell AND to vacate are necessary to make the vendee deforciant in order that an ejectment suit may be filed. It is the vendor's demand for the vendee to vacate the premises and the vendee's refusal to do so which makes unlawful the withholding of the possession. Such refusal violates the vendor's right of possession giving rise to an action for unlawful detainer (Larano vs. Sps. Calendacion, G.R. No. 158231, June 19, 2007). Possession by tolerance becomes unlawful from the time of demand to vacate. • Petitioner’s cause of action for unlawful detainer springs from respondents’ failure to vacate the questioned premises upon his demand sometime in 1996. Within one (1) year therefrom, or on November 6, 1996, petitioner filed the instant complaint. • Possession by tolerance is lawful, but such possession becomes unlawful when the possessor by tolerance refuses to vacate upon demand made by the owner. (Santos vs. Sps. Ayon, G.R. No. 137013, May 6, 2005) Where the period of the lease has expired and several demands were sent to the lessee to vacate, when should the one year period to file unlawful detainer be reckoned? From the date of the original demand or from the date of the last demand? • From the date of the original demand if the subsequent demands are merely in the nature of reminders or reiterations of the original demand. • Demand or notice to vacate is not a jurisdictional requirement when the action is based on the expiration of the lease.. The law requires notice to be served only when the action is due to the lessee’s failure to pay or the failure to comply with the conditions of the lease. The one-year period is thus counted from the date of first dispossession. The allegation that the lease was on a month-to-month basis is tantamount to saying that the lease expired every month. Since the lease already expired mid-year in 1995, as communicated in petitioners’ letter dated July 1, 1995, it was at that time that respondent’s occupancy became unlawful. (Racaza vs. Gozum, June 8, 2006, 490 SCRA 313)

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h. Preliminary injunction and preliminary mandatory injunction Rule 70, Sec. 15. Preliminary injunction. The court may grant preliminary injunction, in accordance with the provisions of Rule 58 hereof, to prevent the defendant from committing further acts of dispossession against the plaintiff. A possessor deprived of his possession through forcible entry or unlawful detainer may, within five (5) days from the filing of the complaint, present a motion in the action for forcible entry or unlawful detainer for the issuance of a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days from the filing thereof.

i. Resolving defense of ownership Rule 70, Sec. 16. Resolving defense of ownership. When the defendant raises the defense of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession. •

The judgment rendered in an action for unlawful detainer shall be conclusive with respect to the possession only and shall in no wise bind the title or affect the ownership of the land or building. Such judgment would not bar an action between the same parties respecting title to the land or building. Section 18, Rule 70 of the Rules of Court provides that when the defendant raises the defense of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession. (Roberts vs. Papio, G.R. No. 166714, February 9, 2007)

j. How to stay the immediate execution of judgment Rule 70, Sec. 19. Immediate execution of judgment; how to stay same. If judgment is rendered against the defendant, execution shall issue immediately upon motion, unless an appeal has been perfected and the defendant to stay execution files a sufficient supersedeas bond, approved by the Municipal Trial Court and executed in favor of the plaintiff to pay the rents, damages, and costs accruing down to the time of the judgment appealed from, and unless, during the pendency of the appeal, he deposits with the appellate court the amount of rent due from time to time under the contract, if any, as determined by the judgment of the Municipal Trial Court. In the absence of a contract, he shall deposit with the Regional Trial Court the reasonable value of the use and occupation of the premises for the preceding month or period at the rate determined by the judgment of the lower court on or before the tenth day of each succeeding month or period. The supersedeas bond shall be transmitted by the Municipal Trial Court, with the other papers, to the clerk of the Regional Trial Court to which the action is appealed. All amounts so paid to the appellate court shall be deposited with said court or authorized government depositary bank, and shall be held there until the final disposition of the appeal, unless the court, by agreement of the interested parties, or in the absence of reasonable grounds of opposition to a motion to withdraw, or for justifiable reasons, shall decree Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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otherwise. Should the defendant fail to make the payments above prescribed from time to time during the pendency of the appeal, the appellate court, upon motion of the plaintiff, and upon proof of such failure, shall order the execution of the judgment appealed from with respect to the restoration of possession, but such execution shall not be a bar to the appeal taking its course until the final disposition thereof on the merits. After the case is decided by the Regional Trial Court, any money paid to the court by the defendant for purposes of the stay of execution shall be disposed of in accordance with the provisions of the judgment of the Regional Trial Court. In any case wherein it appears that the defendant has been deprived of the lawful possession of land or building pending the appeal by virtue of the execution of the judgment of the Municipal Trial Court, damages for such deprivation of possession and restoration of possession may be allowed the defendant in the judgment of the Regional Trial Court disposing of the appeal. Judgment is immediately executory; when stayed. Judgment in ejectment cases is immediately executory, in order to prevent further damage to plaintiff from continued loss of possession. The defendant may stay execution: 1. By perfecting an APPEAL. Appeal is perfected by filing a notice of appeal and paying the required appeal and other lawful fees within fifteen (15) days from notice of the judgment. 2. By filing a SUPERSEDEAS BOND to answer for what has been adjudged in the judgment. The bond is to answer for the rents, damages and costs accruing down to the judgment of the inferior court appealed from, as determined in the judgment, and 3. By paying promptly from time to time either to plaintiff or to the court the MONTHLY RENTAL as adjudicated or the reasonable value of the use and occupation of the property. As provided by Sec. 18, Rule 70, the RTC in its appellate jurisdiction can only base its decisions on court proceedings of the MTC, it cannot conduct a trial de novo. Hence, by ordering the relocation and verification survey, the RTC violated the rule since this was tantamount to holding a trial de novo. The violation was accented by the fact that the RTC based its decision on surveyor’s testimony instead of the record of the proceedings (Manalang v Bacani, GR No. 156995, Jan 12, 2015). - LPB

k. Summary procedure, prohibited pleadings Summary proceedings All ejectment cases are covered by the summary procedure regardless of whether they involve questions of ownership.. The adjudication of the case is done on the basis of affidavits and position papers. The court is no longer allowed to hold hearings to receive testimonial evidence. Should the court find it necessary to clarify certain issues, it may require the parties instead to submit affidavits or other evidence. The proceeding is required to be summary so as to promote the speedy disposition of ejectment cases. In line with the summary nature of the action for forcible entry or unlawful detainer, the filing of the following pleadings is prohibited: 1. Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, or failure to comply with Section 12. Section 12 provides that cases Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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requiring referral to the Lupon for conciliation, whether there is no showing of compliance with such requirement, shall be dismissed without prejudice, and may be reviewed only after that requirement shall have been complied with. 2. Motion for bill of particulars. 3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial. 4. Petition for relief from judgment. 5. Motion for extension of time to file pleadings, affidavits or any other paper. 6. Memoranda. 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court. 8. Motion to declare the defendant in default. 9. Dilatory motions for postponement. 10. Reply. 11. Third party complaints. 12. Intervention. Against whom judgment binding Judgment in an ejectment suit is binding not only on the defendants but also against those not made parties thereto, if they are: (1) trespassers, squatters or agents of the defendant fraudulently occupying the property to frustrate the judgment (2) guests or other occupants of the premises with the permission of the defendant (3) transferees pendente lite (4) co-lessee (5) members of the family, relatives and other privies of the defendant (Pasion vs. Melegrito, G.R. No. 166558, March 28, 2007; Oro Can Enterprises, Inc. vs. CA, G.R. No. 128743, November 29. 1999)

13. Contempt

a. Kinds of contempt b. Purpose and nature of each Definition Contempt of court is a defiance of the authority, justice or dignity of the court, such conduct as tends to bring the authority and administration of the law into disrespect of, to interfere with, or prejudice parties litigant or their witnesses during litigation. It is defined as a disobedience to the court by setting up an opposition to its authority, justice and dignity. It signifies not only a willful disregard or disobedience to the court’s order but such conduct as tends to bring the authority of the court and the administration of law into disrefute or in some manner to impede the due administration of justice. (Halili v. Court of Industrial Relations, No. L-24864, April 30, 1985, 136 SCRA 112) What are the kinds of contempt? Civil Contempt It is the failure to do something ordered to be

Criminal Contempt It is a conduct directed against the authority

done by a court or a judge for the benefit of the and dignity of the court or a judge acting opposing party therein and is therefore and th

judicially; it is an obstructing the administration

Address: Unit 2, 4 Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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offense against the party in whose behalf the

of justice which tends to bring the court into

violated order was made;

disrepute or disrespect;

The purpose is to compensate for the benefit of The purpose is to punish, to vindicate the a party;

authority of the court and protect its outraged dignity;

The rules of procedure governing contempt

Should be conducted in accordance with the

proceedings or criminal prosecutions ordinarily principles and rules applicable to criminal are inapplicable to civil contempt proceedings. cases, insofar as such procedure is consistent with the summary nature of contempt proceedings.

Direct Contempt In general, committed in the presence of

Indirect Contempt It is not committed in the presence of the court, but

or so near the court or judge as to obstruct done at a distance which tends to belittle, degrade, or interrupt the proceedings before it;

obstruct or embarrass the court and justice;

Acts constituting direct contempt are:

Acts constituting indirect contempt are:

a)

(a) Misbehavior an officer of a court in the

Misbehavior in the presence of or so

near the court as to obstruct or interrupt

performance of his official duties or in his official

the proceedings before it;

transactions;

b)

(b) Disobedience of or resistance to a lawful writ,

Disrespect toward the court;

process, order, or judgment of a court, including the c)

Offensive personalities towards others; act of a person who, after being dispossessed or

d)

Refusal to be sworn as a witness or to

answer as a witness; e)

Refusal to subscribe an affidavit or

deposition when lawfully required to do so (Sec. 1); f)

Acts of a party or a counsel which

constitute willful and deliberate forum shopping (Sec. 1, Rule 7); g)

Unfounded accusations or allegations

or words in a pleading tending to

ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto; (c) Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under section 1 of this Rule;

embarrass the court or to bring it into disrepute (Re: Letter dated 21 Feb. 2005 of Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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Atty. Noel Sorreda, 464 SCRA 32);

(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice; (e) Assuming to be an attorney or an officer of a court, and acting as such without authority; (f)

Failure to obey a subpoena duly served;

(g) The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him (Sec. 3);

1. Direct Contempt - punished summarily, direct contempt consists of misbehavior in the presence of or so near a judge as to interrupt or obstruct the proceedings before the court or the administration of justice, including disrespect toward the judge, offensive personalities toward others, or refusal to be sworn or to answer as a witness, or to suscribe to an affidavit or deposition when lawfully required to do so (Guerrero vs. Villamor, 189 SCRA 355 [1989]). 2. Indirect Contempt - indirect or constructive contempt is one committed away from the court involving disobedience or resistance to a lawful writ, processs, order, judgment or command of the court, or tending to belittle, degrade, obstruct, interrupt or embarrass the court (Delima vs. Gallardo, 77 SCRA 286 [1977]). 3. Civil Contempt - the failure to do something ordered by the court which is for the benefit of a party. 4. Criminal Contempt - any conduct directed against the authority or dignity of the court. Two (2) kinds of Contempt (manner of commission) 1) Direct contempt – which may be punished summarily under Section 1 of Rule 71. (Section 1. Direct contempt punished summarily. - A person guilty of misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, including disrespect toward the court, offensive personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so, may be summarily adjudged in contempt by such court and punished by a fine not exceeding two thousand pesos or imprisonment not exceeding ten (10) days, or both, if it be a Regional Trial Court or a court of equivalent or higher rank, or by a fine not exceeding two hundred pesos or imprisonment not exceeding one (1) day, or both, if it be a lower court.) 2) Indirect contempt – which may be punished only after written charge and due hearing under Section 3 of Rule 71. (Section 3. Indirect contempt to be punished after charge and hearing. After a charge in writing has been filed, and an opportunity given to the Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel) Two (2) Aspects of Contempt (nature) 1) Civil Contempt is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein. It is an offense against the party in whose behalf the violated order is made. Intent in committing the contempt is immaterial. It is instituted by an aggrieved party, or his successor, or someone who has a pecuniary interest in the right to be protected. 2) Criminal Contempt is conduct directed against the authority and dignity of a court or of a judge, as in unlawfully assailing or discrediting the authority and dignity of a court or a judge or in doing a forbidden act. It is an offense against organized society and is held to be an offense against public justice. Intent is a necessary element in criminal contempt. It is generally the State who is the real prosecutor. (People v. Godoy/ Judge Eustaquio Z. Gacott, Jr. vs. Mauricio Reynoso, Jr. and Eva P. Ponce De Leon G.R. Nos. 115908-09, March 29, 1995, 243 SCRA 64) Note: A criminal contempt proceeding is in the nature of a criminal or quasi-criminal actions and, therefore, punitive in nature. A civil contempt proceeding is remedial and civil in nature.

c. Remedy against direct contempt; penalty Rule 71, Sec. 1. Contempt punished summarily. — A person guilty of misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, including disrespect toward the court, offensive personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so, may be summarily adjudged in contempt by such court and punished by a fine not exceeding two thousand pesos (P2,000.00) or imprisonment not exceeding ten (10) days, or both, if it be a Regional Trial Court or a court of equivalent or higher rank, or by a fine not exceeding two hundred pesos (P200.00) or imprisonment not exceeding one (1) day, or both, if it be a lower court. The person adjudged in contempt may not appeal from the judgment. The remedy is certiorari or prohibition under Rule 65 on the ground of grave abuse of discretion or lack of jurisdiction on the part of the judge. Execution of the judgment shall be suspended if he files a bond fixed by the court conditioned that he will abide by and perform the judgment should the petition be decided against him (Rule 71, Sec. 2)

d. Remedy against indirect contempt; penalty Rule 71, Sec. 7. Punishment for indirect contempt. — If the respondent is adjudged guilty of indirect contempt committed against a Regional Trial Court or a court of equivalent or higher rank, he may be punished by a fine not exceeding thirty thousand pesos (P30,000.00) or imprisonment not exceeding six (6) months, or both. If he is adjudged guilty of contempt committed against a lower court, he may be punished by a fine not exceeding five thousand pesos (P5,000.00) or imprisonment not exceeding one (1) month, or both. If the contempt consists in the violation of a writ of injunction, temporary restraining order or status quo order, he may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved. Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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Rule 71, Sec. 11. Review of judgment or final order; bond for stay. — The judgment or final order of a court in a case of indirect contempt may be appealed to the proper court in criminal cases. But execution of the judgment or final order shall not be suspended until a bond is filed by the person adjudged in contempt, in an amount fixed by the court from which the appeal is taken, conditioned that if the appeal be decided against him he will abide by and perform the judgment or final order.

e. How contempt proceedings are commenced Rule 71, Sec. 4. How proceedings commenced. Proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed by an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt. In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings for civil actions in the court concerned. If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the CONSOLIDATION of the contempt charge and the principal action for joint hearing and decision. What are the two ways to initiate indirect contempt? 1. Court issues order motu proprio or makes formal charge requiring the respondent to show cause why he should not be punished for contempt. The contempt contemplated is usually in the nature of a criminal contempt. 2. Party litigant or any aggrieved party files a verified petition for that purpose, which should comply with the requirements for filing initiatory pleadings in civil actions. If the contempt charge arose out of or is related to a principal action pending in court, the verified petition shall allege that fact but said petition shall be docketed, heard and decided separately, unless the court orders the consolidation of the contempt charge and the principal action for joint hearing and decision (Rule 71, Sec. 4). Before one may be convicted of indirect contempt, there must be compliance with the following requisites: (a) a charge in writing to be filed; (b) an opportunity for respondent to comment thereon within such period as may be fixed by the court; and (c) an opportunity to be heard by himself or by counsel. (Tokio Marine Malayan Insurance Company Inc. vs. Valdez, G.R. No. 150107, January 28, 2008). Respondent Judge’s blunder was compounded when she immediately cited complainant in contempt of court and issued the bench warrant without requiring the latter to explain the reason for his non-appearance and non-compliance with a standing order. Under Rule 71 of the Rules of Court, complainant’s alleged disobedience is an indirect contempt the punishment for which requires that a respondent should be first asked to show cause why he should not be punished for contempt. Respondent also abused her contempt powers. If at all, complainant was guilty of indirect contempt and not direct contempt. For not affording complainant the opportunity to explain why he should not be cited in contempt, she blatantly disregarded Rule 71 of the Rules Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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of Court (Tabujara vs. Judge Asdala, A.M. No. RTJ-08-2126 [Formerly OCA I.P.I. No. 082896-RTJ], January 20, 2009, En Banc)

f. Acts deemed punishable as indirect contempt Grounds for Indirect Contempt: 1. Misbehavior of an officer of a court in the performance of his official duties or in his official transactions. 2. Disobedience or resistance to a lawful writ, process, order or judgment of a court, or any unauthorized intrusion to any real property after being ejected; 3. Any abuse or any unlawful interference with the proceeding of a court not constituting indirect contempt; 4. Any improper conduct tending, directly or indirectly to impede, obstruct, or degrade the administration of justice; 5. Assuming to be an attorney or an officer of the court without authority; 6. Failure to obey a subpoena duly served; 7. The rescue, or attempted rescue, of a person or property in the custody of an officer. (Rule 71, Section 3.) Note: Use of falsified and forged documents constitutes indirect contempt not direct contempt ( Judge Dolores Espanol vs. Atty. Benjamin Formoso, G.R. No. 150949, June 21, 2007). Grounds for Direct Contempt: 1. Disrespect toward the court; 2. Offensive personalities toward others 3. Refusal to be sworn or to answer as witness or to subscribe an affidavit or deposition 4. Misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings. (Rule 71, Section 1)

g. When imprisonment shall be imposed Rule 71, Sec. 8. Imprisonment until order obeyed. When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it.

h. Contempt against quasi-judicial bodies Rule 71, Sec.12. Contempt against quasi-judicial entities. Unless otherwise provided by law, this Rule shall apply to contempt committed against persons, entities, bodies or agencies exercising quasi-judicial functions, or shall have suppletory effect to such rules as they may have adopted pursuant to authority granted to them by law to punish for contempt. The Regional Trial Court of the place wherein the Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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contempt has been committed shall have jurisdiction over such charges as may be filed therefor. Quasi-judicial agencies that have the power to cite persons for indirect contempt pursuant to Rule 71 of the Rules of Court can only do so by initiating them in the proper Regional Trial Court. It is not within their jurisdiction and competence to decide the indirect contempt cases. These matters are still within the province of the Regional Trial Courts. In the present case, the indirect contempt charge was filed, not with the Regional Trial Court, but with the PARAD, and it was the PARAD that cited Mr. Lorayes with indirect contempt.( Land Bank of the Philippines vs. Listana, G.R. No. 152611, August 5, 2003)

The dismissal of the indirect contempt charge amounts to an acquittal, which effectively bars a second prosecution. Contempt is not a criminal offense. However, a charge for contempt of court partakes of the nature of a criminal action. Rules that govern criminal prosecutions strictly apply to a prosecution for contempt. In fact, Section 11 of Rule 71 of the Rules of Court provides that the appeal in indirect contempt proceedings may be taken as in criminal cases. This Court has held that an alleged contemner should be accorded the same rights as that of an accused. Thus, the dismissal of the indirect contempt charge against respondent amounts to an acquittal, which effectively bars a second prosecution.(Digital Telecommunications Philippines, Inc. vs. Cantos, G.R. No. 180200, November 25, 2013) Indirect contempt for insinuating that Supreme Court TRO was founded on an illegal cause The instant case stemmed. from an article in Luzon Tribune, a newspaper of general circulation wherein respondent Manrique is the publisher/editor, which allegedly contained disparaging statements against the Supreme Court. There are two kinds of publications relating to court and to court proceedings which can warrant the exercise of the power to punish for contempt: (1) that which tends to impede, obstruct, embarrass or influence the courts in administering justice in a pending suit or proceeding; and (2) that which tends to degrade the courts and to destroy public confidence in them or that which tends to bring them in any way into disrepute. We find the subject article illustrative of the second kind of contemptuous publication for insinuating that this Court’s issuance of TRO in G.R. No. 185132 was founded on an illegal cause. The glaring innuendos of illegality in the article is denigrating to the dignity of this Court and the ideals of fairness and justice that it represents. It is demonstrative of disrespect not only for this Court, but also for the judicial system as a whole, tends to promote distrust and undermines public confidence in the judiciary by creating the impression that the Court cannot be trusted to resolve cases impartially. WHEREFORE, in view of the foregoing disquisitions, respondent Leo Ruben C. Manrique is hereby adjudged GUILTY of INDIRECT CONTEMPT and is ordered to pay a fine of Twenty Thousand Pesos (P 20,000.00).(Garcia vs. Manrique, G.R. No. 186592, October 10, 2012)

Address: Unit 2, 4th Floor, España Place Building, 1139 Adelina Street corner España Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / [email protected] / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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