PROVISIONAL REMEDIES AND SPECIAL CIVIL ACTIONS PART II 3.18. Provisional remedies Provisional remedies are writs and processes available during the pendency of the action which may be resorted to by a litigant to preserve and protect certain rights and interests therein pending rendition, and for purposes of the ultimate eects, of a nal judgment in the case. They are provisional because they constitute temporary measures availed of during the pendency of the action, and they are ancillary because they are mere incide incidents nts in and are are depend dependent ent upon the result result of the main action action.. The subject subject orders orders on the matter matter of support support pendente lite are but an incident incident to the main main action action for declar declarati ation on of nullit nullity y of marria marriage. ge. (Ma. (Ma. Carm Carmini inia a C. Calder Calderon on (form (formerl erly y Ma. Carmi Carmini nia a Calde Caldero ron-R n-Roxa oxas), s), repre represen sented ted by her her attor attorney ney-in -in-fa -fact, ct, Maryc Marycri ris s V. Baldev Baldevia ia Vs. Jose Jose nton ntonio io !. Roxas Roxas,, ".R. #o. $%&&'&. Janary ', *$+ )
Natre o! "rovisional remedies Provisional Provisional remedies are not causes of action in themselves but merely merely ad#n$ts to a main sit. They are tem"orar% measres availed of during the pendency of the action and an$illar% because they are mere incidents. [stares v. Cort of ppeals, &' CR /* ]
Pr"ose o! "rovisional remedies The provisional remedies remedies denominated attachment, preliminary preliminary injunction, receivership, and delivery of personal property, provided in ules !", #$, #%, and #& of the ules of 'ourt, respectively, are remedies to which parties litigant may resort for the preservation or protection of their rights or interest, and for no other purpose, during the pendency of the principal acti action on.. (f an acti action, on, by its its natu naturre, does does not not re)ui e)uirre su such ch prot protec ecti tion on or prese preserv rvati ation, on, said said reme remedie dies s can not be applied applied for and grante granted. d. [Calo v. Roldan, ".R. #o. 0-&, March +*, $'/ ]
&risdi$tion &risdi$tion over "rovisional "rovisional remedies *T' has e+clusive original jurisdiction over civil actions and probate proc procee eedi ding ngs, s, test testat ate e and and inte intest stat ate, e, incl includ udin ing g the the gran grantt of prov provis isio iona nall remedies in proper cases, where the value of the personal property, estate, or amount of the demand does not e+ceed ne hundred thousand pesos -P%$$,$$$.$$ or, in *etro *anila where such personal property, estate, or amou amount nt of the the dema demand nd does does not e+ce e+ceed ed Two hund hundrred thou thousan sand d pesos pesos -P&$$,$$ -P&$$,$$$.$$ $.$$ e+clusi e+clusive ve of interest interest damages damages of whatever whatever /ind, attorney0s attorney0s fees, litigation e+penses, and costs. [ B.1. $', ec. ++]
3.18.3. Preliminar% atta$'ment 1 preliminary attachment may be dened, paraphrasing the ules of 'ourt, as the provisional remedy in virtue of which a plainti or other party may, at the commencement of the action or at any time thereafter, have the
property of the adverse party ta/en into the custody of the court as security for the satisfaction of any judgment that may be recovered. [2avao 0i3ht v. Cort of ppeals, * CR ++ ] (ronds !or issan$e o! )rit o! atta$'ment -a (n an action for the recovery of a specied amount of money or damages, other than moral and e+emplary, on a cause of action arising from law, contract, )uasi2contract, delict or )uasi2delict against a party who is about to depart from the Philippines with intent to defraud his creditors3 -b -b (n an acti action on for for mone money y or prop proper erty ty embe embe44 44le led d or frau fraudu dule lent ntly ly misapplied or converted to his own use by a public o5cer, or an o5cer of a corporation, or an attorney, factor, bro/er, agent, or cler/, in the course of his employment as such, or by any other person in a duciary capacity, or for a willful violation of duty3 -c -c (n an acti action on to recov ecover er the the posse possessi ssion on of prop proper erty ty unju unjust stly ly or fraudulently ta/en, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or ta/en by the applicant or an authori4ed person3 -d (n an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof3 -e (n an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors3 or -f (n an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication. [ Rle &4, ec. $]
Re*isites % The case must be any of those where preliminary attachment is proper & The applicant must le a motion 6 The The appli applica cant nt must must show show by a5dav a5davit it that that ther there e is of su5 su5ci cien entt security for the claim sought to be enforced3 that the amount claimed in the acti action on is as much much as the the su sum m of whic which h the the orde orderr is gran grante ted d abov above e all all counterclaims 7 The The appl applic icant ant must must post post a bond bond e+ecut ecuted ed to the the adver adverse se party party -attachment bond -8ection 6, ule !9 of the ules of 'ourt
Atta$'ment )ill not lie i! t'ere is an e+istin, real estate mort,a,e The writ will not be issued issued if a real estate mortgage mortgage e+ists to secure secure the obligation even if instead of ling an action for foreclosure, an action for a sum of money was instead led. [ al3ado v. Cort of ppeals, ".R. #o. &&+%$, March /, $'% ]
-rad as a ,rond !or issan$e o! )rit o! atta$'ment Re*isites 1 writ of preliminary attachment is too harsh a provisional remedy to be issued based on mere abstractions of fraud. ather, the rules re)uire that for the writ to issue, there must be a recitation of clear and concrete factual circumstances manifesting that the debtor practiced fraud upon the creditor at the time of the e+ecution of their agreement in that said debtor had a
property of the adverse party ta/en into the custody of the court as security for the satisfaction of any judgment that may be recovered. [2avao 0i3ht v. Cort of ppeals, * CR ++ ] (ronds !or issan$e o! )rit o! atta$'ment -a (n an action for the recovery of a specied amount of money or damages, other than moral and e+emplary, on a cause of action arising from law, contract, )uasi2contract, delict or )uasi2delict against a party who is about to depart from the Philippines with intent to defraud his creditors3 -b -b (n an acti action on for for mone money y or prop proper erty ty embe embe44 44le led d or frau fraudu dule lent ntly ly misapplied or converted to his own use by a public o5cer, or an o5cer of a corporation, or an attorney, factor, bro/er, agent, or cler/, in the course of his employment as such, or by any other person in a duciary capacity, or for a willful violation of duty3 -c -c (n an acti action on to recov ecover er the the posse possessi ssion on of prop proper erty ty unju unjust stly ly or fraudulently ta/en, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or ta/en by the applicant or an authori4ed person3 -d (n an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof3 -e (n an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors3 or -f (n an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication. [ Rle &4, ec. $]
Re*isites % The case must be any of those where preliminary attachment is proper & The applicant must le a motion 6 The The appli applica cant nt must must show show by a5dav a5davit it that that ther there e is of su5 su5ci cien entt security for the claim sought to be enforced3 that the amount claimed in the acti action on is as much much as the the su sum m of whic which h the the orde orderr is gran grante ted d abov above e all all counterclaims 7 The The appl applic icant ant must must post post a bond bond e+ecut ecuted ed to the the adver adverse se party party -attachment bond -8ection 6, ule !9 of the ules of 'ourt
Atta$'ment )ill not lie i! t'ere is an e+istin, real estate mort,a,e The writ will not be issued issued if a real estate mortgage mortgage e+ists to secure secure the obligation even if instead of ling an action for foreclosure, an action for a sum of money was instead led. [ al3ado v. Cort of ppeals, ".R. #o. &&+%$, March /, $'% ]
-rad as a ,rond !or issan$e o! )rit o! atta$'ment Re*isites 1 writ of preliminary attachment is too harsh a provisional remedy to be issued based on mere abstractions of fraud. ather, the rules re)uire that for the writ to issue, there must be a recitation of clear and concrete factual circumstances manifesting that the debtor practiced fraud upon the creditor at the time of the e+ecution of their agreement in that said debtor had a
preconceived plan or intention not to pay the creditor. [ 5itable v. pecial teel , ".R. #o. $4&+&*, Jne $+, *$ ]
Atta$'ment is de"endent on t'e main sit The remedy of attachment a ttachment is adjunct to the main suit, therefore, therefore, it can have no independent e+istence apart from a suit on a claim of the plainti agai against nst the the defe defend ndan ant. t. :hen :hen 1b 1boi oiti ti4 4 and 'omp 'ompany any,, (nc. (nc. with withdr drew ew its its complaint, the attachment ceased to have a leg to stand on. [ dla6an v. 7omol, ".R. #o. 0-/+&, pril +, $''* ]
Issan$e and $ontents o! order o! atta$'ment/ a0davit a0davit and ond 1n order of attachment attachment may be issued issued either either ex parte or upon motion with notice and hearing by the court in which the action is pending, or by the 'ourt of 1ppeals or the 8upreme 'ourt, and must re)uire the sheri of the court to attach so much of the property in the Philippines of the party against whom it is issued, not e+empt from e+ecution, as may be su5cient to satisfy the applicant0s demand, unless such party ma/es deposit or gives a bond as hereinafter hereinafter provided in an amount e)ual to that +ed in the order, which may be the amount su5cient to satisfy the applicant0s demand or the value of the prop proper erty ty to be atta attach ched ed as stat stated ed by the the appli applica cant nt,, e+cl e+clusi usive ve of cost costs. s. 8everal writs may be issued at the same time to the sheris of the courts of dierent judicial regions. [ Rle &4, ec. ]
Re*irements !or t'e issan$e o! t'e )rit 1n order of attachment shall be granted only when it appears by the a0davit o! t'e a""li$ant2 or o! some ot'er "erson who personally /nows the facts, that a su5cient cause of action e+ists, that the case is one of those those mentione mentioned d in section section % hereof hereof,, that that there there is no ot'er s0$ient se$rit% !or t'e $laim sought to be enforced by the action, and that the amount due to the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims. The a5davit, and the bond re)uired by the ne+t succeeding section, must be duly led with the court before the order issues. [Rle &4, ec. + ]
,ive a ond ond The party applying for the order must thereafter thereafter ,ive e+e$ted to t'e adverse "art% in t'e amont +ed % t'e $ort in its order order ,rantin, ,rantin, t'e issan$e issan$e o! t'e )rit, conditioned that the latter will pay pay all all the the cost costs s whic which h may may be adju adjudg dged ed to the the adve advers rse e part party y and and all all damages which he may sustain by reason of the attachment, if the court shall nally adjudge that the applicant was not entitled thereto. [ Rle &4, ec. ] Pr"ose o! e+4"arte issan$e o! )rit o! atta$'ment ;+ parte grant of the writ is allowed because it is possible that during the course of the hearing, the part against whom the writ is sought may dispose of his property or abscond before the writ is issued. [ !ilinvest v. Relova, ".R. #o. 0-&*+4%, eptember +*, $'% ]
Rle on "rior or $ontem"oraneos servi$e o! smmons
The sheri enforcing the writ shall without delay and with all reasonable diligence attach, to await judgment and e+ecution in the action, only so much of the property in the Philippines of the party against whom the writ is issued, not e+empt from e+ecution, as may be su5cient to satisfy the applicant0s demand, unless the former ma/es a deposit with the court from which the writ is issued, or gives a counter2bond e+ecuted e+ecuted to the applicant, in an amount e)ual to the bond +ed by the court in the order of attachment or to the value of the property to be attached, e+clusive of costs.
E+$e"tions The re)uirement re)uirement of prior or contemporaneous service of summons shall not apply where the summons could not be served personally or by substituted service despite diligent eorts, or the defendant is a resident of the Phi Philip lippin pines es tempor temporari arily ly absent absent there therefr from, om, or the defend defendant ant is a non2 non2 resident of the Philippines, or the action is one in rem or 5asi in rem. 8Rle &4, ec. & () ]
Manner Manner o! atta$' atta$'in, in, real real and "erson "ersonal al "ro"er "ro"ert% t%// )'en )'en "ro"e "ro"ert% rt% atta$'ed is $laimed % t'ird "erson eal and personal property shall be attached by the sheri e+ecuting the writ in the following manner= -a eal property, or growing crops thereon, or any interest therein, standing upon the record of the registry of deeds of the province in the name of the party against whom attachment is issued, or not appearing at all upon such records, or belonging to the party against whom attachment is issued and held by any other person, or standing on the records of the registry of deeds in the name of any other person, by ling 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 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. :here :here the property has been brought under the operation of either the >and egistr egistration ation 1ct or the Propert Property y egistratio egistration n ?ecree, ?ecree, the notice notice shall contain a reference to the number of the certicate of title, the volume and page in the registration boo/ where the certicate is registered, and the registered owner or owners thereof. The registrar of deeds must inde+ attachments led under this section in the names of the applicant, the adverse party, or the person by whom the property is held or in whose name it stands in the records. (f the attachment is not claimed on the entire area of the land covered by the certicate of title, a description su5ciently accurate for the identication of the land or inte interrest est to be aec aecte ted d sh shal alll be incl includ uded ed in the the regis egistr trat atio ion n of su such ch attachment3
-b Personal property capable of manual delivery, by ta/ing and safely /eeping it in his custody, after issuing the corresponding receipt therefor. -c -c 8toc 8toc/s /s or sh shar ares es,, or an inte interrest est in stoc stoc/s /s or sh shar ares es,, of any any corporation or company, by leaving with the president or managing agent thereof, a copy of the writ, and a notice stating that the stoc/ or interest of the party against whom the attachment is issued is attached in pursuance of such writ3 -d -d ?ebt ?ebts s and and cred credit its, s, incl includ udin ing g ban/ ban/ depo deposi sits ts,, nan nanci cial al inte interrest, est, royalties, commissions and other personal property not capable of manual deli delive very ry,, by leav leavin ing g with with the the pers person on owin owing g su such ch debt debts, s, or havi having ng in his 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 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 writ3 -e The interest of the party against whom attachment is issued in property belonging to the estate of the decedent, whether as heir, legatee, or devise devisee, e, by servin serving g the e+ecu e+ecutor tor or admini administr strato atorr or other other person personal al representative of the decedent with a copy of the writ and notice that said interest is attached. 1 copy of said writ of attachment and of said notice shall also be led in the o5ce of the cler/ of the court in which said estate is being settled and served upon the heir, legatee or devisee concerned. (f the property sought to be attached is in custodia legis, a copy of the writ writ of attach attachmen mentt shall shall be led led with with the prope properr court court or )uasi2 )uasi2jud judici icial al agency, and notice of the attachment served upon the custodian of such property. [Rle &4, ec. 4 ] -ee also ec. &
Dis$'ar,e o! atta$'ment and t'e $onter4ond Preliminary Preliminary attachment shall be discharged when it is established that= % The debtor has posted a counterbond or has made the re)uisite cash bond [Rle &4, ec. $]3 & The attachment was improperly or irregularly issued as where there is no ground for attachment under 8ection % of this ule [Rle &4, ec. $+]3 6 The bond led is defective or insu5cient [ Rle &4, ec. $+ ]3 7 The attachment is e+cessive, but the discharge shall be limited to the e+cess [Rle &4, ec. $+ ]3 ! The property property attached is e+empt e+empt from e+ecuti e+ecution, on, hence e+empt e+empt from preliminary preliminary attachment [ Rle &4, ec. and & ]3 or # The judgment is rendered against the attaching creditor [ Rle &4, ec. $'] ?ischarge of the writ of attachment must be made after hearing 1 discharge of the attachment must be made only after hearing. ;+ parte parte dis discha charg rge e is a dis disser servic vice e to the order orderly ly admini administr strati ation on of justic justice. e. [1eroxide 1hilippines Corporation v. Cort of ppeals, ".R. #o. '%$+, Jly
+$, $''$] Pr"ose o! $onter4ond @urisprudence adds that counter2bonds are also replacements of the property formerly attached, and just as the latter, may be levied upon nal judgment. [ecrity 1aci9c ssrance Corporation v. 7ri-:nfante, /% CR &/]
Satis!a$tion o! #d,ment ot o! "ro"ert% atta$'ed (f judgment be recovered by the attaching party and e+ecution issue thereon, the sheri may cause the judgment to be satised out of the property attached, if it be su5cient for that purpose in the following manner= -a Ay 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 judgment3 -b (f 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 sheri0s hands, or in those the cler/ of the court3 -c Ay 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. [Rle &4, ec. $&]
3.18.5. Preliminar% in#n$tion
Preliminar% In#n$tion 1 writ of preliminary injunction is an e+traordinary event which must be granted only in the face of actual and e+isting substantial rights. The duty of the court ta/ing cogni4ance of a prayer for a writ of preliminary injunction is to determine whether the re)uisites necessary for the grant of an injunction are present in the case before it. (n the absence of the same, and where facts are shown to be wanting in bringing the matter within the conditions for its issuance, the ancillary writ must be struc/ down for having been rendered in grave abuse of discretion. (1alm 7ree states, :nc., et al. Vs. 1hilippine #ational Ban;, ".R. #o. $&'+4*.
Re*irement o! $lear and le,al ri,'t (t is a deeply ingrained doctrine in Philippine remedial law that a preliminary injunctive relief under ule !B issues only upon a showing of the applicantCs Dclear legal rightE being violated or under threat of violation by the defendant. D'lear legal right,E within the meaning of ule !B, contemplates a right clearly founded in or granted by law. 1ny hint of doubt or dispute on the asserted legal right precludes the grant of preliminary injunctive relief. For suits attac/ing the validity of laws or issuances with the force and eect 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 e)uitable nature of such relief, preserving the status )uo while, at the same time, restricting the course of action of the defendants even before adverse judgment is rendered against them. -xective ecretary, ecretary of !inance, Commissioner of Cstoms, 2istrict collector of cstoms, 1ort of parri, Ca3ayan, 2istrict Collector of Cstoms, 1ort of an !ernando 0a =nion, and >ead of the 0and 7ransportation
E+isten$e o! a $lear le,al ri,'t re*ired drin, t'e "enden$% o! t'e a$tion
1s such, a writ of preliminary injunction may be issued only upon clear showing of an e+isting legal right to be protected during the pendency of the principal action. The re)uisites of a valid injunction are the e+istence of a right and its actual or threatened violations. Thus, to be entitled to an injunctive writ, the right to be protected and the violation against that right must be shown. 7M0 "as;et :ndstries, :nc. v. B1: !amily avin3s Ban;, :nc., ".R. #o. $%%4/%. Janary 4, *$+ )
6'at are t'e ,ronds !or t'e issan$e o! )rit o! in#n$tion7 8ection 6, ule !B of the ules of 'ourt lists the grounds for the issuance of a writ of preliminary injunction= 8ec.6. "ronds for the issance of preliminary in@nction. A 1 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 un restraining the commission or continuance of the act or acts complained of, or in re)uiring the performance of an act or acts, either for a limited period or perpetually3 -b that the commission, continuance or non2performance of the act or acts complained of during the litigation would probably wor/ injustice to the applicant3 or -c that a party, court, agency, or a person doing, threatening, or is attempting to do, or is procuring or suering to be done, some act or acts probably in violation of the right of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineectual
Denitions and dieren$es "reliminar% in#n$tion and tem"orar% restrainin, order/ stats *o ante order Generally, injunction is a preservative remedy for the protection of substantive rights or interests. (t is not a cause of action in itself but merely a provisional remedy, an adjunct to a main suit. The controlling reason for the e+istence 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. [stares v. Cort of ppeals, spra ]
Do$trine o! stron, arm o! e*it% (t is the strong arm of e)uity, an e+traordinary preemptory remedy that must be used with e+treme caution, aecting as it does the respective rights of the parties. [China Ban;in3 Corporation v. ps. Ciriaco, ".R. #o. $4**+%, Jly $$, *$]
Pr"ose o! in#n$tion
(t is issued by the court to prevent threatened or continuous irreparable injury to parties before their claims can be thoroughly studied and adjudicated. [Manila :nternational irport thority v. Rivera Villa3e, 4$ CR +&%] e)uirements for the issuance of the writ For an injunctive writ to issue, a clear showing of e+treme urgency to prevent irreparable injury and a clear and unmista/able right to it must be proven by the party see/ing it. The primary objective of a preliminary injunction, whether prohibitory or mandatory, is to preserve the status )uo until the merits of the case can be heard.
6'en $an a )rit o! in#n$tion e issed7 1 preliminary injunction is granted at any stage of an action or proceeding prior to the judgment or nal order. (t persists until it is dissolved or until the termination of the action without the court issuing a nal injunction. [Miriam Colle3e !ondation, :nc. v. C, ".R. #o. $4'+*, 2ecember $&, ***]
6'en $an a tem"orar% restrainin, order e issed7 Pr"ose 1 restraining order, on the other hand, is issued to preserve the status )uo until the hearing of the application for preliminary injunction which cannot be issued e+ parte. Hnder ule !Bof the ules of 'ourt, a judge may issue a temporary restraining order with a limited life of twenty -&$ days from date of issue. (f before the e+piration of the twenty -&$2day period the application for preliminary injunction is denied, the temporary restraining order would be deemed automatically vacated. [ Bacolod City ater 2istrict v. 0abayen,".R. #o. $&4', 2ecember $*, ** ]
Re*isites o! TRO and In#n$tion The following elements must concur for the issuance of a writ of preliminary injunction= %. The invasion of the right is material and substantial3 &. The right of the complainant is clear and unmista/able3 6. There is urgent and paramount necessity for the writ to prevent serious damage [trate3ic lliance 2evelopment Corp. v. tar :nfrastrctre 2evelopment Corp., ".R. #o. $%4%4, pril $$, *$$ ]3 and 7. (ts eect would not be to create a new relation between the parties which was arbitrarily interrupted by the defendant.
9inds o! in#n$tion Preliminar% in#n$tion 2 1n order granted at any stage of an action or proceeding prior to the judgment or nal order=
a e)uiring a party or a court, agency or a person to refrain from a performance of a particular act or acts -preventive or prohibitive injunction3 or b 1lso re)uiring the performance of a particular act or acts -mandatory injunction. -8ection %, ule !B, ules of 'ourt3 egalado &$$B ed.
-inal in#n$tion a Granted if, after the trial of the action, it appears that the applicant is entitled to have the act or acts complained of permanently enjoined b *ay perpetually restrain the party or person enjoined from the commission or continuance of the act or acts or conrming the preliminary mandatory injunction. -8ection ", ule !B of the ules of 'ourt
Preliminar% in#n$tion/ im"ro"er )'ere a$t so,'t to e en#oined is alread% $onsmmated 'ase law instructs that injunction would not lie where the acts sought to be enjoined had already become fait accompli -meaning, an accomplished or consummated act. Ience, since the consummation of the act sought to be restrained had rendered 8ps. 1lindogs injunction petition moot, the issuance of the said injunctive writ was altogether improper. -poses #icasio C. Mar5e and nita J. Mar5e v. poses Carlito lindo3 and Carmen lindo3, ".R. #o. $%*&. Janary , *$ )
(ronds !or o#e$tion to2 or !or t'e dissoltion o! in#n$tion or restrainin, order The application for injunction or restraining order may be denied, upon a showing of its insu5ciency. The injunction or restraining order may also be denied, or, if granted, may be dissolved, on other grounds upon a5davits of the party or person enjoined, which may be opposed by the applicant also by a5davits. (t may further be denied, or if granted, may be dissolved, if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof, as the case may be, would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suer, and the former les a bond in an amount +ed by the court conditioned that he will pay all damages which the applicant may suer by the denial or the dissolution of the injunction or restraining order. (f it appears that the e+tent of the preliminary injunction or restraining order granted is too great, it may be modied. [Rle &%, ec. / ]
Tem"orar% Restrainin, Order :TRO; 6'en $an it e issed7 Period o! ee$tivit%7 (f it shall appear from facts shown by a5davits or by the veried application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court to which the application for preliminary injunction was made, may issue a temporary restraining order
to be eective only for a period of twenty -&$ days from service on the party or person sought to be enjoined, e+cept as herein provided. :ithin the said twenty2day period, the court must order said party or person to show cause, at a specied time and place, why the injunction should not be granted, determine within the same period whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order.
Period o! ee$tivit% o! TRO issed % t'e Cort o! A""eals/ S"reme Cort Iowever, if issued by the 'ourt of 1ppeals or a member thereof, the temporary restraining order shall be eective for si+ty -#$ days from service on the party or person sought to be enjoined. 1 restraining, order issued by the 8upreme 'ourt or a member thereof shall be eective until further orders. [Rle &%, ec. &]
Dt% o! t'e $ort )it'in t'e t)ent% :<=; da% "eriod :ithin the said &$ day period, the court must order said party or person to show cause why the injunction should not be granted. 1lso, within the same period, the court shall determine whether or not the preliminary injunction shall be granted and then issue the corresponding order. [ stralian 1rofessional, :nc. v. Mnicipality of 1adre "arcia, //% CR &+ ]
Period o! TRO i! ased on e+treme r,en$% E+tension o! 1> da%s Iowever, and subject to the provisions of the preceding sections, if the matter is of e+treme urgency and the applicant will suer grave injustice and irreparable injury, the e+ecutive judge of a multiple2sala court or the presiding judge of a single sala court may issue ex parte a temporary restraining order eective for only seventy2two -9& hours from issuance but he shall immediately comply with the provisions of the ne+t preceding section as to service of summons and the documents to be served therewith. Thereafter, within the aforesaid seventy2two -9& hours, the judge before whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order shall be e+tended until the application for preliminary injunction can be heard. (n no case shall the total period of eectivity of the temporary restraining order e+ceed twenty -&$ days, including the original seventy2two hours provided herein. [ Rle &%, ec. & ()]
Period o! t)ent% da%s non4e+tendile The rule against the non2e+tendibility of the &$ day eectivity of a T is absolute if issued by the T'. The failure of the trial court to + the period in the T does not convert it to a preliminary injunction. [ Bacolod City ater 2istrict v. 0abayen, spra ]
Limitations on t'e issan$e o! a TRO or in#n$tion
:n relation to R.. #o. %'4&, ban on issance of 7R< or 6rit of in@nction in cases involvin3 3overnment infrastrctre pro@ects
Pro'iition a""li$ale in all $ases This prohibition shall apply in all cases, disputes or controversies instituted by a private party, including but not limited to cases led by bidders or those claiming to have rights through such bidders involving such contractJproject. This prohibition shall not apply when the matter is of e+treme urgency involving a constitutional issue, such that unless a temporary restraining order is issued, grave injustice and irreparable injury will arise. The applicant shall le a bond, in an amount to be +ed by the court, which bond shall accrue in favor of the government if the court should nally decide that the applicant was not entitled to the relief sought.
Dt% o! t'e $ort i! t'e $ontra$t is de$lared nll and void (n after due hearing the court nds that the award of the contract is null and void, the court may, if appropriate under the circumstances, award the contract to the )ualied and winning bidder or order a rebidding of the same, without prejudice to any liability that the guilty party may incur under e+isting laws. [R.. %'4&, ec. +]
Rle on "rior or $ontem"oraneos servi$e o! smmons and ot'er re*irements ne$essar% :hen 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 led in a multiple2sala court, shall be raKed only after notice to and in the presence of the adverse party or the person to be enjoined. (n 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 applicant0s a5davit and bond, upon the adverse party in the Philippines. [Rle &%, ec. (c) ]
6'en $ontem"oraneos servi$e o! smmons not a""li$ale Iowever, where the summons could not be served personally or by substituted service despite diligent eorts, or the adverse party is a resident of the Philippines temporarily absent therefrom or is a non2resident thereof, the re)uirement of prior or contemporaneous service of summons shall not
apply. [Rle &%, ec. (c) () ]
3.18.?. Re$eivers'i" Pr"ose o! re$eivers'i" eceivership is aimed at the preservation of, and at ma/ing more secure, e+isting rights. (t cannot be used as an instrument for the destruction of those rights. [ rrana v. B.!. >omes, :nc., ++ CR 4'']
6'o is a re$eiver7 1 receiver is a person appointed by the court in behalf of all the parties to the action 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. The appointment of a receiver is not a matter of absolute right. [ Commodities tora3e v. Cort of ppeals, 4 CR +']
Cases )'en re$eiver ma% e a""ointed Hpon a veried 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 'ourt of 1ppeals or by the 8upreme 'ourt, or a member thereof, in the following cases= -a :hen it appears from the veried application, and such other proof as the court may re)uire, 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 it3 -b :hen 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 insu5cient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage3 -c 1fter judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid e+ecution when the e+ecution has been returned unsatised or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into eect3 -d :henever 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. ?uring the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to be led in and decided by the court of origin and the receiver appointed to be subject to the control of said court. [Rle &', ec. $ ]
Natre o! t'e dt% o! t'e re$eiver 1 receiver is not an agent or representative of any party to the action.
Ie is an o5cer of the court e+ercising his functions in the interest of neither plainti nor defendant, but for the common benet of all parties in interest. [1aci9c Merchandisin3 Corporation v. Consolacion :nsrance, 4+ CR &/ ]
Re*irements e!ore issan$e o! an order % Leried application for the appointment of a receiver based on any of the grounds enumerated in 8ection %, ule !"3 and & Aond led by the applicant and e+ecuted to the party against whom the application is presented, in an amount to be +ed by the court, to the eect that the applicant will pay such party all damages the latter may sustain by reason of the appointment of such receiver in case the applicant should have procured the same without su5cient cause.
Postin, o! additional ond The court may, in its discretion, at any time after the appointment, re)uire an additional bond as further security for such damages
(eneral "o)ers o! a re$eiver 8ubject 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 name3 to ta/e and /eep possession of the property in controversy3 to receive rents3 to collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver3 to compound for and compromise the same3 to ma/e transfers3 to pay outstanding debts3 to divide the money and other property that shall remain among the persons legally entitled to receive the same3 and generally to do such acts respecting the property as the court may authori4e. Iowever, 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. [ Rle &', ec. /]
T)o @inds o! onds There are two main types of bonds, namely= %. The bond re)uired before appointment of a receiver3 and &. The bond re)uired of a receiver before entering upon his duties. 1nother bond is the one which the court may re)uire, at any time after the appointment of the receiver as further security for damages. [ Riano, spra]
Termination o! re$eivers'i" :henever the court, mot proprio or on motion of either party, shall determine that the necessity for a receiver no longer e+ists, 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 ta+ed as costs against the defeated party, or apportioned, as justice re)uires. [Rle &', ec. %]
3.18.. Re"levin Natre o! re"levin Re"levin, broadly understood, is both a form of principal remedy and of a provisional relief. (t may refer either to the action itself, i.e., to regain the possession of personal chattels being wrongfully detained from the plainti by another, or to the provisional remedy that would allow the plainti to retain the thing during the pendency of the action and hold it pendente lite. [7illson vs. Cort of ppeals, $'4 CR &%4 ] Natre o! an a$tion !or re"levin The action is primarily possessory in nature and generally determines nothing more than the right of possession. eplevin is so usually described as a mi+ed action, being partly in rem and partly in personam-in rem insofar as the recovery of specic property is concerned, and in personam as regards to damages involved. 1s an Maction in rem,M the gist of the replevin action is the right of the plainti to obtain possession of specic personal property by reason of his being the owner or of his having a special interest therein. [B !inance Corporation v. Cort of ppeals, &% CR $* ]
6'en ma% )rit e issed7BRe*isites 1 party praying for the recovery of possession of personal property may, at the commencement of the action or at any time before answer, apply for an order for the delivery of such property to him, in the manner hereinafter provided.
A""li$ant need not e t'e o)ner o! t'e "ro"ert% s#e$t o! re"levin The applicant need not be the owner of the property. (t is enough that he has a right to its possession. [Dan3 v. Valde, ".R. #o. 4++$4, 3st +$, $'%']
A0davit and ond/ redeliver% ond The applicant must show by his own a5davit or that of some other person who personally /nows the facts= -a That the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof3 -b That the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his /nowledge, information, and belief 3 -c That the property has not been distrained or ta/en for a ta+ assessment or a ne pursuant to law, or sei4ed under a writ of e+ecution or preliminary attachment, or otherwise placed under cstodia le3is , or if so sei4ed, that it is e+empt from such sei4ure or custody3 and -d The actual mar/et value of the property. [ Rle /*, ec. ]
Remed% o! t'e adverse "art% (f the adverse party objects to the su5ciency of the applicant0s bond, or of the surety or sureties thereon, he cannot immediately re)uire 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, re)uire the return thereof, by ling with the court where the action is pending a bond e+ecuted to the applicant, in double the value of the property as stated in the applicant0s a5davit for the delivery thereof to the applicant, if such delivery be adjudged, and for the payment of such sum, to him as may be recovered against the adverse party, and by serving a copy of such bond on the applicant. [ Rle /*, ec. &]
S'eris dt% in t'e im"lementation o! t'e )rit/ )'en "ro"ert% is $laimed % t'ird "art% Hpon receiving such order, the sheri must serve a copy thereof on the adverse party, together with a copy of the application, a5davit and bond, and must forthwith ta/e the property, if it be in the possession of the adverse party, or his agent, and retain it in his custody. (f the property or any part thereof be concealed in a building or enclosure, the sheri must demand its delivery, and if it be not delivered, he must cause the building or enclosure to be bro/en open and ta/e the property into his possession. 1fter the sheri has ta/e possession of the property as herein provided, he must /eep it in a secure place and shall be responsible for its delivery to the party entitled thereto upon receiving his fees and necessary e+penses for ta/ing and /eeping the same. [Rle /*, ec. ]
Dt% o! t'e s'eri "on seire o! "ro"ert% nder re"levin The rules provide that property sei4ed under a writ of replevin is not to be delivered immediately to the plainti. Hnder 8ection #, ule #$, the 8heri should have waited no less than ! days in order to give the complainant an opportunity to object to the su5ciency of the bond.[ >ao v. ndres, .M. #o. 1-*4-+%, Jne $%, **%]
6'en to ma@e an o#e$tion7 Re*irements/ (f within ve -! days after the ta/ing of the property by the sheri, the adverse party does not object to the su5ciency of the bond, or of the surety or sureties thereon3 or if the adverse party so objects and the court a5rms its approval of the applicant0s bond or approves a new bond, or if the adverse party re)uires the return of the property but his bond is objected to and found insu5cient and he does not forthwith le an approved bond, the property shall be delivered to the applicant. (f for any reason the property is not delivered to the applicant, the sheri must return it to the adverse party. [Rle /*, ec. / ]
T'ird "art%4 $laim Dt% o! t'e s'eri (f the property ta/en is claimed by any person other than the party against whom the writ of replevin had been issued or his agent, and such person ma/es an a5davit of his title thereto, or right to the possession thereof, stating the grounds therefor, and serves such a5davit upon the sheri while the latter has possession of the property and a copy thereof
upon the applicant, the sheri shall not be bound to /eep the property under replevin or deliver it to the applicant unless the applicant or his agent, on demand of said sheri, shall le a bond approved by the court to indemnify the third2party claimant in a sum not less than the value of the property under replevin as provided in section & hereof. (n case of disagreement as to such value, the court shall determine the same.
Non4liailit% o! t'e s'eri The sheri shall not be liable for damages, for the ta/ing or /eeping of such property, to any such third2party claimant if such bond shall be led.
Rle in $ase )rit )as issed in !avor o! t'e Re"li$ ond not re*ired :hen the writ of replevin is issued in favor of the epublic of the Philippines, or any o5cer duly representing it, the ling of such bond shall not be re)uired, and in case the sheri is sued for damages as a result of the replevin, he shall be represented by the 8olicitor General, and if held liable therefor, the actual damages adjudged by the court shall be paid by the
S""ort "endent lite Interlocutory and Final orders; application to provisional remedies especially to support pendente lite. Order o! s""ort "endent lite an interlo$tor% order The assailed orders relative to the incident of support pendent lite and support in arrears, as the term suggests, were issued pending the rendition of the decision on the main action for declaration of nullity of marriage and are therefore interlocutory. They did not nally dispose of the case nor did they consist of a nal adjudication of the merits of petitionerCs claims as to the ground of psychological incapacity and other incidents as child custody, support, and conjugal assets. -Ma. Carmina Calderon represented by her ttorney-in-fact, Marycris V. Baldevia v. Jose ntonio Roxas and Cort of ppeals, ".R. #o. $%&&'&. Janary ', *$+ )
3.1F. S"e$ial $ivil a$tions
rden o! Proo! :e stress that in a special civil action for certiorari, the petitionercarries the burden of proving not merely reversible error, but grave abuse ofdiscretion amounting to lac/ or e+cess of jurisdiction, on the part of thepublic respondent for his issuance of the impugned order. Grave abuse ofdiscretion is present Dwhen there is a capricious and whimsical e+ercise of
Meanin, o! la$@ o! #risdi$tion judgment as is e)uivalent to lac/ of jurisdiction, such as where the power ise+ercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.E (n other words, the tribunal or administrative body must have issued the assailed decision, order or resolution in a capricious or despotic manner. Petitioner failed to discharge that burden and perforce the petition must fail . (:sabelita 1. "ravides Vs. Commission on lections and 1edro C. Bor@al, ".R. #o. $''++. #ovember $+, *$ )
3.1F.1. Natre o! s"e$ial $ivil a$tions Rle ? not a Remed% !or lost A""eal 1t the outset, it must be pointed out that petitionersC resort to a Petition for 'ertiorari under ule #! of the ules of 'ourt is inappropriate. PetitionersC remedy from the adverse ?ecision of the '1 lies in ule 7! which is a Petition for eview on 'ertiorari. 1s such, this petition should have been dismissed outright for being a wrong mode of appeal. ;ven if the petition is to be treated as led under ule 7!, the same must still be denied for late ling and there being no reversible error on the part of the '1. ecords show that petitioners received a copy of the '1 esolution denying their *otion for econsideration on ctober 6$, &$$#.7& They therefore had %! days or until
3.1F.<. Ordinar% $ivil a$tions verss s"e$ial $ivil a$tions 1n ordinar% $ivil a$tionis when a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. [Reyes v. nri5e, ".R. #o. $/'&/, pril $*, **% ] 1 s"e$ial $ivil a$tion contains special features not found in ordinary civil actions. (t is also governed by ordinary rules but subject to specic rules prescribed. [ Rle $, ec. + (a), 1ara3raph ] 3.1F.3. &risdi$tion and vene
Rle on vene in s"e$ial $ivil a$tion Hnli/e ordinary civil actions which is determined by either the residences of the parties if personal, or location of the property if real, special civil actions need not be based on this. For instance for 5o 6arranto , venue is +ed without regard to the residences of the parties. [ Riano, Civil 1rocedre ::, *$ ] Lenue should still follow the rule on venue, e+cept in instances where the special civil action species.
&risdi$tion o! t'e lo)er $ort to 'ear inter"leader (n view of defendantNs subse)uent failure to settle his issue with the supplier, plainti instituted an action for interpleader against the defendant and the supplier, before the 'ourt of First (nstance. The 'ourt held that the 8pecial 'ivil 1ction may be tried by the lower court if it falls within its jurisdiction, here the amount was less than %$,$$$, hence, the petition was proper. [Ma;ati 2evelopment v. 7an@atco, ".R. #o. 0-/+, March &, $'/' ]
&risdi$tion in e#e$tment Petitioners contend that since the *T' acted without jurisdiction, the T' can only decide the case on appeal if it has original jurisdiction. The 8' held that the *T' had jurisdiction over this ejectment case even if the )uestion of possession could be resolved without passing upon the issue of ownership. [errano v. "tierre, ".R. #o. $/+//, #ovember $*, **/ ]
3.1F.5. Inter"leader 1 remedy whereby a person who has property whether personal or real, in his possession, or an obligation to render wholly or partially, without claiming any right in both, or claims an interest which in whole or in part is not disputed by the conOicting claimants, comes to court and as/s that the persons who claim the said property or who consider themselves entitled to demand compliance with the obligation, be re)uired to litigate among themselves, in order to determine nally who is entitled to one or the other thing. The remedy is aorded not to protect a person against a double liability but to protect him against a double ve+ation in respect of one liability. [
Re*isites !or inter"leader (t is indispensable that there be conOicting claims upon the same subject matter are or may be made against the plainti2in2interpleader who claims no interest whatever in the subject matter or an interest which in whole or in part is not disputed by the claimants. [ Rial Commercial Ban;in3 Corporation v. Metro Container Corp., ".R. #o. $4'$+, eptember $+, **$ ] The re)uisites are= a. There must be two or more claimants with adverse or conOicting interests upon a subject matter3 b. The conOicting claims involve the same subject matter3 c. The conOicting claims are made against the same person3 d. The plainti has no claim upon the subject matter of the adverse claims or if he has an interest at all, such interest is not disputed by the claimants. [Riano, spra]
6'en to le7 :henever conOicting claims upon the same subject matter are or may be made against a person who claims no interest whatever in the subject matter, or an interest which in whole or in part is not disputed by the claimants. [Rle /, ec. $ ]
Instan$e )'en inter"leader is "ro"er (nterpleader is proper when the lessee does not /now the person who is entitled to the payment of the rentals due because of conOicting claims on the property. The remedy passes the legal problem to the court which will have to adjudicate upon the adverse claims. [ 1asrischa v. 2on 0is 2ion Realty, :nc., &% CR 4+, ' ]
Limitations in t'e lin, o! inter"leader Dili,en$e is re*ired (t must be noted, however, that a sta/eholder should use reasonable diligencethat is, by filing the interpleader suit within a reasonable time after a dispute has arisen without waiting to be sued by either of the contending claimants. therwise, he may be barred by laches or undue delay. [ ac;ac; "olf v. on, 4* CR $/& ] Instan$e )'en inter"leader is no lon,er ne$essar% :hen the decision of a case has become nal and e+ecutory, the party has no other alternative but to pay rentals. The move for dismissal of interpleader was not an indication that it is no longer interested, rather there is no more need for it. [ Rial Commercial Ban;in3 Corporation v. Metro Container Corp., spra ]
In$'oate ri,'t not a asis !or inter"leader (n a case where petitionerCs father, aunt and uncles co2owned the land, and thereafter sold the land, petitioners aver that there is a conOict among the heirs of the co2owner. Petitioners were not the registered owners of the land, but represented merely an inchoate interest thereto as heirs, hence they have no personality to le such case. [ Ramos v. Ramos, +'' CR + (**&)]
3.1F.?. De$larator% relie!s and similar remedies 6'en de$lar*ator% relie! is "ro"er7 1ny person interested under a deed, will, contract or other written instrument, or whose rights are aected by a statute, e+ecutive order or regulation, ordinance, or any other governmental regulation may, before breach or violation thereof bring an action in the appropriate egional Trial 'ourt to determine any )uestion of construction or validity arising, and for a declaration of his rights or duties, thereunder. [ Rle /+, ec. $]
Onl% isse o! $onstr$tion and validit% "ro"er in de$larator% relie! (n a case which interpreted .1. 6$!, which converted the municipality of
The court e+plained that the only issue that may be raised in such a petition is the )uestion of construction or validity of provisions in an instrument or statute, hence it complies with re)uirement of the rules. [ 1rovince of Camarines r v. Cort of ppeals, /** CR &/' ]
Inter"retation o! t'e $ontra$t "ro"er !or de$larator% relie! espondent instituted an action for declaratory relief for purposes of determining the correct interpretation of condition
De$larator% relie! not )it'in t'e ori,inal #risdi$tion o! t'e S"reme Cort Petitioner is a radio station which was granted to operate under .1. 6$$%, subse)uently, President *arcos issued P.?. !9#21 which restricted radio station ownership. The 8upreme 'ourt dismissed the petition, ruling that a petition for declaratory relief is not among the petitions within the original jurisdiction of the 8upreme 'ourt even if only )uestions of law are involved. [ llied Broadcastin3 Corporation v. Repblic of the 1hilippines, ".R. #o. '$&**,
De$larator% relie! treated as mandams (n one instance the court too/ cogni4ance of a case, wherein a %& year old was raped by a foreigner, and in order to garnish the foreign deposit of the accused, which was e+empt by reason of a law. The 8upreme 'ourt treated the petition for declaratory relief as mandamus to re)uire the ban/s to honor the decision of the lower court, and added that, where the petition has far2reaching implications and raises )uestions that should be resolved. [alvacion v. Central Ban;, G.R. #o. '4+ 3st ,$, $''4]
6'o ma% le t'e a$tion 1ll persons who have e claim any interest which would be aected by the declaration shall be made parties. [ Rle /+, ec. ]
6'en Soli$itor (eneral s'old e notied7 (n any action which involves the validity of a statute, e+ecutive order or regulation, or any other governmental regulation, the 8olicitor General shall be notied by the party assailing the same. [Rle /+, ec. +]
6'o s'all e notied in $ase o! an ordinan$e7 (n any action involving the validity of a local government ordinance, the corresponding prosecutor or attorney of the local governmental unit involved shall be similarly notied and entitled to be heard. [Rle /+, 8ec. 7]
Re*isites o! a$tion !or de$larator% relie!
The re)uisites of an action for declaratory relief are=1; the subject matter of the controversy must be a deed, will, contract or other written instrument, statute, e+ecutive order or regulation, or ordinance3 <; the terms of said documents and the validity thereof are doubtful and re)uire judicial construction3 3; there must have been no breach of the documents in )uestion3 5; there must be an actual justiciable controversy or the Dripening seedsE of one between persons whose interests are adverse3 ?; the issue must be ripe for judicial determination3 and ; ade)uate relief is not available through other means or other forms of action or proceeding. [ Jmamil v. CafE, ".R. #o. $&4*, eptember $, **&]
6'at is a #sti$iale *estion7 1 justiciable controversy is a denite and concrete dispute touching on the legal relations of parties having adverse legal interests, which may be resolved by a court of law through the application of a law. Ience, a mere apprehension of an administrative sanction does not give rise to a justiciable controversy. [ Bayan 7elecommnications v. Repblic of the 1hilippines, &$+ CR &/*] Isse o! stats "rior to marria,e $an e a s#e$t o! de$larator% relie! Petitioner led a case to clarify her status prior to their marriage, after the death of her 'hinese husband. 1s a conse)uence, her petition is, in eect, one for a declaratory relief, which this 'ourt has repeatedly held to be inapplicable to the political status of natural persons. [ 0im v. Repblic, ".R. #o. 0-'&+&. !ebrary 4, $'4$ ]
Isses in liation and 'ereditar% ri,'ts not s#e$t o! de$larator% relie! Petitioner led a declaratory relief to determine his liation and hereditary rights. The 'ourt held that, the action is improper because it is not based on a deed, will, statute or any of those as subject matter of the petition. [dades v. dades, '' 1hil. /4& ]
6'en $ort ma% re!se to ma@e #di$ial de$laration ;+cept in actions falling under the second paragraph of section % of this ule, the court, mot proprio or upon motion, may refuse to e+ercise the power to declare rights and to construe instruments in any case where a decision would not terminate the uncertainty or controversy which gave rise to the action, or in any case where the declaration or construction is not necessary and proper under the circumstances. [ Rle /+, ec. &]
A$tion !or re!ormation o! $onsolidation o! o)ners'i"
instrment2
*ietin,
o!
title
and
1n action for the reformation of an instrument, to )uiet title to real property or remove clouds therefrom, or to consolidate ownership under 1rticle %#$9 of the 'ivil 'ode, may be brought under this ule. [ Rle /+, ec. $, 1ara3raph ]
Ee$t is ne$essar% "art% is not im"leaded The petition for declaratory relief only included the administrator and trustees under the will, it failed to include the oman 'atholic 'hurch of
Conversion to ordinar% a$tion (f before the nal termination of the case, a breach or violation of an instrument or a statute, e+ecutive order or regulation, ordinance, or any other governmental regulation should ta/e place, the action may thereupon be converted into an ordinary action, and the parties shall be allowed to le such pleadings as may be necessary or proper. [ Rle /+, ec. /]
Prior rea$' o! la) or $ontra$t not "ro"er !or de$larator% relie! :here the law or contract has already been contravened prior to the ling of an action for declaratory relief, the court can no longer assume jurisdiction over the action. Hnder such circumstances, inasmuch as a cause of action has already accrued in favor of one or the other party, there is nothing more for the court to e+plain or clarify short of a judgment or nal order. [7ambntin3, Jr. v. mabat, ".R. #o. $$*$, eptember $/, **& ]
-ailre to state t'e la) s#e$t o! "etition is !atal Petitioners led a declaratory relief without stating the law which pertained to the case. The 8upreme 'ourt held that, although 8ection #, ule #6 might allow such course of action, the respondents did not argue the point, and we note petitionersC failure to specify the ordinary action they desired. [Martelino v. #ational >ome Mort3a3e !inance Corporation, ".R. #o. $/**%, Jne +*, **% ]
Pro$eedin,s $onsidered as similar remedies Re!ormation o! an instrment :hen, there having been a meeting of the minds of the parties to a contract, their true intention is not e+pressed in the instrument purporting to embody the agreement, by reason of mista/e, fraud, ine)uitable conduct or accident, one of the parties may as/ for the reformation of the instrument to the end that such true intention may be e+pressed.
(f mista/e, fraud, ine)uitable conduct, or accident has prevented a meeting of the minds of the parties, the proper remedy is not reformation of the instrument but annulment of the contract. [1rt. %6!", Civil Code of the 1hilippines ]
Pres$ri"tion ars re!ormation o! instrment (n one case, espondent 'orporation led an action for reformation &7 years after the issue arose, hence it is barred by prescription. The 'ourt added that the purpose of an action for declaratory relief is to secure an authoritative statement of the rights and obligations of the parties 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 only before the breach or violation of the law or contract to which it refers. [Bentir v. 0eanda, ".R. #o. $%''$, pril $, *** ]
Consolidation o! o)ners'i" (n case of real property, the consolidation of ownership in the vendee by virtue of the failure of the vendor to comply with the provisions of article %#%# shall not be recorded in the egistry of Property without a judicial order, after the vendor has been duly heard. [ rt. $/*4, Civil Code of the 1hilippines ]i
Gietin, o! title to real "ro"ert% Natre and "r"ose o! *ietin, o! title 1n action for )uieting of title is essentially a common law remedy grounded on e)uity. The competent court is tas/ed to determine the respective rights of the complainant and other claimants, not only to place things in their proper place, to ma/e the one who has no rights to said immovable respect and not disturb the other, but also for the benet of both, so that he who has the right would see every cloud of doubt over the property dissipated, and he could afterwards without fear introduce the improvements he may desire, to use, and even to abuse the property as he deems best. Aut Dfor an action to )uiet title to prosper, two indispensable re)uisites must concur, namely= -% the plainti or complainant has a legal or an e)uitable title to or interest in the real property subject of the action3 and -& 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 e5cacy.E (2ionisio Mana5il, et al. Vs. Roberto Moico, ".R. #o. %**4/, #ovember *, *$ )
6'en is t'e remed% o! *ietin, o! title "ro"er7 :henever 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 eective but is in truth and in fact invalid, ineective, voidable, or unenforceable, and may be prejudicial to said title, an action may be brought to remove such cloud or to )uiet the
title. 1n action may also be brought to prevent a cloud from being cast upon title to real property or any interest therein. [ rt. 4/, Civil Code of the 1hilippines ]
Pro$edre to e !ollo)ed The procedure for the )uieting of title or the removal of a cloud therefrom shall be governed by such rules of court as the 8upreme 'ourt shall promulgated. [ rt. %$, Civil Code of the 1hilippines ]
Pr"ose o! t'e remed% Quieting of title is a common law remedy for the removal of any cloud, doubt or uncertainty aecting title to real property. The plaintis must show not only that there is a cloud or contrary interest over the subject real property, but that they have a valid title to it. [ poses antia3o v. Villamor, ".R. #o. $/%'', #ovember /, *$ ]
Re*isites (n order that an action for )uieting of title may prosper, two re)uisites must concur= :1; the plainti or complainant has a legal or e)uitable title or interest in the real property subject of the action3 and :<; 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 e5cacy. [ 1hil-Ville 2evelopment and >osin3 Corporation v. Bonifacio, /&$ CR +4 ]
3.1F.. Revie) o! #d,ments and nal orders or resoltion o! t'e Comele$ and COA This ule shall govern the review of judgments and nal orders or resolutions of the 'ommission on ;lections and the 'ommission on 1udit. [Rle /, ec. $] ?ecisions of the 'ivil 8ervice 'ommission is now reviewable by the 'ourt of 1ppeals. [R.. #o. 4'*, ec. $ ]
Petition !or revie) nder Rle 53 an availale remed% on t'e de$ision o! t'e Civil Servi$e Commission Petitioner is a school principal and was charged of se+ual harassment, the remedy of an aggrieved party from a resolution issued by the '8' is to le a petition for review thereof under ule 76 of the ules of 'ourt within fteen days from notice of the resolution. Iowever, it admits e+ceptions, li/e the instant case, such as invalid writs, in this case 'uanan was denied of due process for failure to serve him a copy of the pleadings. [ Canan v. 2epd , ".R. #o. $/'*$+, 2ecember $/, **% ]
A""li$ation o! Rle ? nder Rle 5 1 judgment or nal order or resolution of the 'ommission on ;lections
and the 'ommission on 1udit may be brought by the aggrieved party to the 8upreme 'ourt on certiorari under ule #!. [ Rle /, ec. ]
Petition !or $ertiorari availale in $ase o! COMELEC de$ision 1 review includes digging into the merits and unearthing errors of judgment, while certiorari deals e+clusively with grave abuse of discretion, which may not e+ist even when the decision is otherwise erroneous. certiorari implies an indierent disregard of the law, arbitrariness and caprice, an omission to weight pertinent considerations, a decision arrived at without rational deliberation. 8ratc v. Co/in has correctly brought this special civil action for certiorari against the '*;>;' to see/ the review of the resolution of the '*;>;' in approving the withdrawal of his nomination. The constitutional mandate is now implemented by ule #7 of the %""9 ules of 'ivil Procedure, which provides for the review of the judgments, nal orders or resolutions of the '*;>;' and the 'ommission on 1udit. [0o;in v. C
Error o! #risdi$tion s#e$t o! Rle 5 1 complaint was led against petitioners for violation of rules of '1 and for violation of .1. 6$%". The o5ce of the petition for certiorari is not to correct simple errors of judgment3 any resort to the said petition under ule #7, in relation to ule #!, of the %""9 ules of 'ivil Procedure is limited to the resolution of jurisdictional issues. [ Reyna v. C<, / CR $* ]
3.1F.>. Certiorari2 "ro'iition and mandams -n$tion o! )rit o! $ertiorari 'ertiorari under ule #!, as its principal function is to /eep an inferior tribunal within its jurisdiction. (t can be invo/ed only for an error of jurisdiction, that is, one where the act complained of was issued by the court, o5cer or a )uasi2judicial body without or in e+cess of jurisdiction, or with grave abuse of discretion which is tantamount to lac/ or in e+cess of jurisdiction. [ n3ara v. !edman, ".R. #o. $&/%,
-n$tion o! "ro'iition The function of prohibition is to prevent the unlawful and oppressive e+ercise of legal authority and to provide for a fair and orderly administration of justice. (t is directed against proceedings that are done without or in e+cess of jurisdiction, or with grave abuse of discretion, there being no appeal or other plain, speedy and ade)uate remedy in the ordinary course of law. [Ver3ara v. R3e, ".R. #o. 0-+'%, 3st &, $'44 ]
6'at is Mandams7 *andamus is a writ commanding a tribunal, corporation, board, or person to do the act re)uired to be done when it or he unlawfully neglects the performance of an act which the law specically enjoins as a duty resulting from an o5ce, trust, or station, or unlawfully e+cludes another from the use and enjoyment of a right or o5ce to which such other is entitled,
there being no other plain, speedy, and ade)uate remedy in the ordinary course of law. [ n3chan3co v.
S"e$ial Civil A$tion !or Mandams/ natre/ )'en availale. 8imilarly, the petition could not be one for mandams , which is a remedy available only when Dany tribunal, corporation, board, o5cer or person unlawfully neglects the performance of an act which the law specically enjoins as a duty resulting from an o5ce, trust, or station, or unlawfully e+cludes another from the use and enjoyment of a right or o5ce to which such other is entitled, and there is no other plain, speedy, and ade)uate remedy in the ordinary course of law, the person aggrieved thereby may le a veried petition in the proper court.E The main objective of mandams is to compel the performance of a ministerial duty on the part of the respondent. Plainly enough, the writ of mandams does not issue to control or review the e+ercise of discretion or to compel a course of conduct, which, it )uic/ly seems to us, was what petitioners would have the 8ecretary of @ustice do in their favor. 'onse)uently, their petition has not indicated how and where the 8ecretary of @usticeCs assailed issuances e+cluded them from the use and enjoyment of a right or o5ce to which they were un)uestionably entitled. poses 3sto 2acdao and
S"e$ial Civil A$tion !or Mandams/ natre/ $om"els "er!orman$e o! ministerial dties. 1 /ey principle to be observed in dealing with petitions for mandams is that such e+traordinary remedy lies to compel the performance of duties that are purely ministerial in nature, not those that are discretionary. 1 purely ministerial act or duty is one that an o5cer or 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 e+ercise of its own judgment upon the propriety or impropriety of the act done. The duty is ministerial only when its discharge re)uires neither the e+ercise of o5cial discretion or judgment. pecial 1eople, :nc. !ondation, represented by its Chairman, Roberti 1. Cericos v. #estor M. Canda, et al., ".R. #o. $/*'+. Janary $, *$+
Certiorari distin,is'ed !rom a""eal % $ertiorari The proper recourse of the aggrieved party from a decision of the '1 is a petition for review on certiorari under ule 7! of the evised ules of 'ourt. n the other hand, if the error subject of the recourse is one of jurisdiction, or the act complained of was perpetrated by a )uasi2judicial o5cer or agency with grave abuse of discretion amounting to lac/ or e+cess of jurisdiction, the proper remedy available to the aggrieved party is a petition for certiorari under ule #! of the said ules. [0and Ban; of the 1hilippines v. Cort of ppeals, &/ 1hil. 4&& ]
Re*isites !or Certiorari nder Rle ? )ill lie (t may issue only when the following re)uirements are alleged in and established by the petition= - 1; that the writ is directed against a tribunal, a
board or any o5cer e+ercising judicial or )uasi2judicial functions3 :<; that such tribunal, board or o5cer has acted without or in e+cess of jurisdiction, or with grave abuse of discretion amounting to lac/ or e+cess of jurisdiction3 and -6 that there is no appeal or any plain, speedy and ade)uate remedy in the ordinary course of law. [ 7an v. ntao, ".R. #o. $%4*%, !ebrary +, *$$]
Re*isites !or issan$e o! )rit o! "ro'iition For a writ of prohibition, the re)uisites are= :1; the impugned act must be that of a Dtribunal, corporation, board, o5cer, or person, whether e+ercising judicial, )uasi2judicial or ministerial functionsE3 and :<; there is no plain, speedy, and ade)uate remedy in the ordinary course of law.E [
In#n$tive relie! ne$essar% to sto" "ro$eedin,s elo) The pendency of a petition for certiorari does not suspend the proceedings before the trial court. ule #! of the ules of 'ourt is e+plicit in stating that Dthe petition shall not interrupt the court of the principal case unless a temporary restraining order or a writ of preliminary injunction has been issued against the public respondent from further proceedings. [ Jliano0lave v. Repblic, // CR /+4 ]
E+$e"tions to lin, o! motion !or re$onsideration e!ore lin, "etition espondentCs contention that petitioner should have rst led a motion for reconsideration before resorting to the remedy of certiorari. The 8upreme 'ourt held that while the rule is that before certiorari may be availed of, petitioner must rst le a motion for reconsideration with the lower court of the act or order complained of, however, such rule is not without e+ception. [Barraona v. R7C of Ba3io-Branch /$, %/ CR &&& ] The rule is, however, circumscribed by well2dened e+ceptions, such as= -a where the order is a patent nullity, as where the court a 5o had no jurisdiction3 -b where the )uestions 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 court3 -c where there is an urgent necessity for the resolution of the )uestion and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of the action is perishable3 -d where, under the circumstances, a motion for reconsideration would be useless3 -e where petitioner was deprived of due process and there is e+treme urgency for relief3 -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 improbable3 -g where the proceedings in the lower court are a nullity for lac/ of due process3
-h where the proceedings wereex parte, or in which the petitioner had no opportunity to object3 and -i where the issue raised is one purely of law or where public interest is involved. [7an3 v. bic Bay 2istribtion, ".R. #o. $/&4&, 2ecember $&, *$*]
Relie!s "etitioner is entitled to 1nnulment of the proceedings and grant of relief 1 person aggrieved thereby may le a veried petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or o5cer, and granting such incidental reliefs as law and justice may re)uire. [Rle /&, ec. $]
6'en $an #d,ment e rendered7 (f after such hearing or submission of memoranda or the e+piration of the period for the ling thereof the court nds that the allegations of the petition are true, it shall render judgment for the relief prayed for or to which the petitioner is entitled. [ Rle /&, ec. %]
Ot'er relie!s The court in which the petition is led may issue orders e+pediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. [Rle /&, ec. 4 ]
A$tionsBomissions o! MTCBRTC in ele$tion $ases (n election cases involving an act or an omission of a municipal or a regional trial court, the petition shall be led e+clusively with the 'ommission on ;lections, in aid of its appellate jurisdiction. [1.*. ;'. 8ince it is the '*;>;' which has jurisdiction to ta/e cogni4ance of an appeal from the decision of the regional trial court in election contests involving elective municipal o5cials, then it is also the '*;>;' which has jurisdiction to issue a writ of certiorari in aid of its appellate jurisdiction. ["alan3 v. "eronimo, ".R. #o. $'4'+, !ebrary , *$$ ]
6'en and )'ere to le "etition7 The petition shall be led in the 8upreme 'ourt or, if it relates to the acts or omissions of a lower court or of a corporation, board, o5cer or person, in the egional Trial 'ourt e+ercising jurisdiction over the territorial area as dened by the 8upreme 'ourt. (t may also be led in the 'ourt of 1ppeals whether or not the same is in aid of its appellate jurisdiction, or in the 8andiganbayan if it is in aid of its appellate jurisdiction. (f it involves the acts or omissions of a )uasi2judicial agency, unless otherwise provided by law or these ules, the petition shall be led in and cogni4able only by the
'ourt of 1ppeals. [Rle /&, ec. ]
Ee$ts o! lin, o! an nmeritorios "etition The court, however, ma% dismiss t'e "etition if it nds the same to be patently without merit, prosecuted manifestly for delay, or that the )uestions raised therein are too unsubstantial to re)uire consideration. [ Rle /, ec. %]
(rave ase o! dis$retion/ $on$e"ts. 6'en ,rave ase o! dis$retion arises7 To be sure, grave abuse of discretion arises when a lower court or tribunal patently violates the 'onstitution, the law or e+isting jurisprudence. Iere, while the T' had initially issued a writ of possession in favor of 8ps. *ar)ue4, it deed e+isting jurisprudence when it eectively rescinded the said writ by subse)uently granting 8ps. 1lindogCs prayer for injunctive relief. poses #icasio C. Mar5e and nita J. Mar5e v. poses Carlito lindo3 and Carmen lindo3, (.R. No. 185=5?. &anar% <<2 <=15. (t is settled doctrine that there is grave abuse of discretion when there is a capricious and whimsical e+ercise of judgment as is e)uivalent to lac/ of jurisdiction, such as where the power is e+ercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross so as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. Ralph 1. 7a v. >on. Cesar . Man3roban3, 1residin3 Jd3e, Branch , R7C, :ms, CaviteG and Rossan >onrado-7a, (.R. No. 1>=>=1. &anar% <<2 <=15.
3.1F.8. Go )arranto 1 5o 6arranto proceeding is generally dened as an action against a person who usurps, intrudes into, or unlawfully holds or e+ercises a public o5ce. [7ecson v. C
Instan$e )'en *o )arranto is not "ro"er Petitioners argue that since their prayer involves the cancellation of the provisional authority and 'P's, and not the legislative franchise, then )uo warranto fails as a remedy. The 'ourt e+plained that the special civil action of 5o 6arranto is a prerogative writ by which the Government can call upon any person to show by what warrant he holds a public o5ce or e+ercises a public franchise. [2ivina3racia v. Consolidated Broadcastin3 ystem, ".R. #o. $/4, pril 4, **' ]
Distin,is' !rom *o )arranto in t'e Omnis Ele$tion Code The 'ourt has already li/ened a proceeding under 8ection 9B to a )uo warranto proceeding since they both deal with the eligibility or )ualication of a candidate. The distinction mainly in the fact that a M8ection 9BM under 8ection &!6 of the ;', petition is led before proclamation, while a petition
for )uo warranto is led after proclamation of the winning candidate. [ !ermin v. C
Ho arranto nder <C Governed by election laws (ssue is the eligibility or ineligibility of the person elected or his loyalty or disloyalty to the epublic Petition is led within %$ days after the proclamation of the results of the election
Ho arranto nder Rle // Governed by the rules of 'ourt (ssue is the legality or illegality of the occupancy of the o5ce by virtue of an appointment Filed within one year from the time the cause of ouster, or the right of the petitioner to hold o5ce arose Petition is brought in Petition is brought in the '*;>;', T', or the 8', '1 or T' *T' Petitioner may be any Petitioner is the voter even if he is not person claiming to be entitled to the o5ce entitled to o5ce [Riano, pra ] 6'en ,overnment ma% $ommen$e an a$tion a,ainst individals7 1n action for the usurpation of a public o5ce, position or franchise may be commenced by a veried petition brought in the name of the epublic of the Philippines against= -a 1 person who usurps, intrudes into, or unlawfully holds or e+ercises a public o5ce, position or franchise3 -b 1 public o5cer who does or suers an act which, by the provision of law, constitutes a ground for the forfeiture of his o5ce3 or -c 1n association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. [ Rle //, ec. $]
Soli$itor (eneral $an $ommen$e t'e a$tion The 8olicitor General or a public prosecutor, when directed by the President of the Philippines, or when upon complaint or otherwise he has good reason to believe that any case specied in the preceding section can be established by proof, must commence such action. [ Rle //, ec. ] The 8olicitor General or a public prosecutor may, with the permission of the court in which the action is to be commenced, bring such an action at the re)uest and upon the relation of another person. [Rle //, ec. +]
6'en individal ma% $ommen$e an a$tion7
1 person claiming to be entitled to a public o5ce or position usurped or unlawfully held or e+ercised by another may bring an action therefor in his own name. [Rle //, ec. &]
&d,ment in *o )arranto a$tion :hen the respondent is found guilty of usurping into, intruding into, or unlawfully holding or e+ercising a public o5ce, position or franchise, judgment shall be rendered that such respondent be ousted and altogether e+cluded therefrom, and that the petitioner or relator, as the case may be, recover his costs. 8uch further judgment may be rendered determining the respective rights in and to the public o5ce, position or franchise of all the parties to the action as justice re)uires. [ Rle //, ec. ' ]
Ri,'ts o! a "erson ad#d,ed entitled to "li$ o0$e (f judgment be rendered in favor of the person averred in the complaint to be entitled to the public o5ce he may, after ta/ing the oath of o5ce and e+ecuting any o5cial bond re)uired by law, ta/e upon himself the e+ecution of the o5ce, and may immediately thereafter demand of the respondent all the boo/s and papers in the respondent0s custody or control appertaining to the o5ce to which the judgment relates. (f the respondent refuses or neglects to deliver any boo/ 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 o5ce may also bring action against the respondent to recover the damages sustained by such person by reason of the usurpation. [Rle //, ec. $*]
3.1F.F. E+"ro"riation The power of eminent domain in particular has been described as a right to ta/e or reassert dominion over property within the state for public use or meet public e+igency. (t is also said to be an essential part of governance even in its most primitive form, and thus, inseparable from sovereignty. [ ir 7ransportation
Matters to alle,e in $om"laint !or e+"ro"riation The right of eminent domain shall be e+ercised by the ling of a veried complaint which shall state with certainty the right and purpose of e+propriation, describe the real or personal property sought to be e+propriated, 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. (f the title to any property sought to be e+propriated appears to be in the epublic of the Philippines, although occupied by private individuals, or if the title is otherwise obscure or doubtful so that the plainti cannot with accuracy or certainty specify who are the real owners, averment to that eect shall be made in the complaint. [Rle /4, ec. $]
T)o sta,es in ever% a$tion !or e+"ro"riation The rst stage is the determination of authority of the plainti to e+propriate, which includes the propriety of the e+propriation, its necessity
and public purpose. The second stage is the determination of just compensation through the court2appointed commissioners. [ #ational 1o6er Corporation v. Joson, */ CR &* ] The rst phase ends with either an order of dismissal or a determination that the property is to be ac)uired for a public purpose. [City of Manila v. le3ar Corporation, ".R. #o. $%4/* ] Hpon the rendition of the order of e+propriation, the court shall appoint not more than three -6 competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be ta/en. [ Rle /4, ec. & ]
6'en "lainti $an immediatel% enter into "ossession o! t'e real "ro"ert%2 in relation to R.A. No. 8F>5 -a Hpon the ling of the complaint, and after due notice to the defendant, the implementing agency shall immediately pay the owner of the property the amount e)uivalent to the sum of -% one 'ndred "er$ent :1==H; o! t'e vale o! t'e "ro"ert% ased on t'e $rrent relevant onal valation o! t'e rea o! Internal Revene :IR; 3 and -& the value of the improvements andJor structures as determined under 8ection 9 hereof3 -b (n provinces, cities, municipalities and other areas where there is no 4onal valuation, the A( is hereby mandated within the period of si+ty -#$ days from the date of the e+propriation case, to come up with a 4onal valuation for said area3 and -c (n case the completion of a government infrastructure project is of utmost urgency and importance, and there is no e+isting valuation of the area concerned, the implementing agency shall immediately pay the owner of the property its proered value ta/ing into consideration the standards prescribed in 8ection ! hereof. Hpon compliance with the guidelines abovementioned, the court shall immediately issue to the implementing agency an order to ta/e possession of the property and start the implementation of the project. [ ec. , R.. %'4]
Order o! e+"ro"riation (f the objections to and the defenses against the right of the plainti to e+propriate the property are overruled, or when no party appears to defend as re)uired by this ule, the court may issue an order of e+propriation declaring that the plainti has a lawful right to ta/e the property sought to be e+propriated, 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 ta/ing of the property or the ling of the complaint, whichever came rst. 1 nal order sustaining the right to e+propriate the property may be appealed by any party aggrieved thereby. 8uch appeal, however, shall not prevent the court from determining the just compensation to be paid. [ Rle /4, ec. ]
As$ertainment o! #st $om"ensation
The payment of just compensation to be determined as of the date of the ta/ing of the property or the ling of the complaint, whichever came rst. [Rle /4, ec. ]
A""ointment o! $ommissioner Hpon the rendition of the order of e+propriation, the court shall appoint not more than three -6 competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be ta/en. [ Rle /4, ec. & ]
Dt% o! t'e $ort i! t'ere $ommissioner
is no 'earin, $ond$ted % t'e
:here no trial or hearing was conducted to aord parties the opportunity to present their own evidence, the court should disregard the commissionerCs ndings. The absence of such trial or h earing constitutes a violation of the right of due process. [#ational 1o6er Corporation v. 2e la Cr, &$ CR &/ ]
6'en to determine #st $om"ensation7 :hen the ta/ing of the property sought to be e+propriated coincides with the commencement of the e+propriation proceedings, or ta/es place subse)uent to the ling of the complaint for eminent domain, the just compensation should be determined as of the date of ling of the complaint. [City of :loilo v. Contreras Besana, /$ CR &% ]
Meanin, o! #st $om"ensation The constitutional limitation of just compensation is considered to be a sum e)uivalent to the mar/et value of the property, broadly dened as the price +ed by the seller in open mar/et in the usual and ordinary course of legal action and competition3 or the fair value of the property3 as between one who receives and one who desires to sell it, +ed at the time of the actual ta/ing by the government. [ Repblic v. Rral Ban; of Iabacan, :nc., // CR ++]
6'en is $om"ensation $onsidered #st7 1part from the re)uirement that compensation for e+propriation must be fair and reasonable, compensation to be just, must also be paid without delay if the property is immediately ta/en as the property owner suers the immediate deprivation of both his land and its fruits or income. [ po !rits Corporation v. 0and Ban; of the 1hilippines, /+ CR 44 ]
Remed% o! n"aid o)ner
v. tiena, Jr., 4 CR /+ ] A""ointment o! $ommissioners/ $ommissioners re"ort/ $ort a$tion "on $ommissioners re"ort Aefore entering upon the performance of their duties, the commissioners shall ta/e and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be led in court with the other proceedings in the case. ;vidence may be introduced by either party before the commissioners who are authori4ed 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 e+amine the property sought to be e+propriated 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 conse)uential damages to the property not ta/en and deduct from such conse)uential damages the conse)uential benets to be derived by the owner from the public use or purpose of the property ta/en, the operation of its franchise by the corporation or the carrying on of the business of the corporation or person ta/ing the property. Aut in no case shall the conse)uential benets assessed e+ceed the conse)uential damages assessed, or the owner be deprived of the actual value of his property so ta/en. [Rle /4, ec. / ] 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 wor/ as to subse)uent portions of the property sought to be e+propriated, and may from time to time so deal with such property. The commissioners shall ma/e a full and accurate report to the court of all their proceedings, and such proceedings shall not be eectual until the court shall have accepted their report and rendered judgment in accordance with their recommendations. [Rle /4, ec. 4 ] Hpon the e+piration of the period of ten -%$ days referred to in the preceding section, or even before the e+piration of such period but after all the interested parties have led 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 commissioners3 or it may accept the report in part and reject it in part and it may ma/e such order or render such judgment. [Rle /4, ec.% ]
Ri,'ts o! "lainti "on #d,ment and "a%ment Hpon payment by the plainti to the defendant of the compensation +ed by the judgment, with legal interest thereon from the ta/ing of the possession of the property, or after tender to him of the amount so +ed and payment of the costs, the plainti shall have the right to enter upon the property e+propriated and to appropriate it for the public use or purpose dened in the judgment, or to retain it should he have ta/en immediate possession thereof under the provisions of section & hereof. (f 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 eect as actual payment thereof to the defendant or the person ultimately adjudged entitled thereto. [ Rle /4, ec. $*]
Ee$t o! re$ordin, o! #d,ment :hen real estate is e+propriated, a certied copy of such judgment shall be recorded in the registry of deeds of the place in which the property is situated, and its eect shall be to vest in the plainti the title to the real estate so described for such public use or purpose. [Rle /4, ec. $+]
3.1F.1=. -ore$losre o! real estate mort,a,e Manner o! !ore$losre Foreclosure of real estate mortgage may be made e+tra judicially under 1ct. 6%6!, or judicially, under ule #B of the revised rules of court.
&d,ment on !ore$losre !or "a%ment or sale (f upon the trial in such action the court shall nd the facts set forth in the complaint to be true, it shall ascertain the amount due to the plainti 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 -"$ days nor more than one hundred twenty -%&$ 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. [Rle /%, ec. ] The period given in the rule is not merely a procedural re)uirement3 it is a substantive right granted to the mortgage debtor as the last opportunity to pay the debt and save his mortgaged property from nal disposition at the foreclosure sale. [2e 0eon v. :bane, '& 1hil. $$' ]
Sale o! mort,a,ed "ro"ert%/ ee$t :hen the defendant, after being directed to do so as provided in the ne+t preceding section, fails to pay the amount of the judgment within the period specied therein, the court, upon motion, shall order the property to be sold in the manner and under the provisions of ule 6" and other regulations governing sales of real estate under e+ecution. 8uch sale shall not aect the rights of persons holding prior encumbrances upon the property or a part thereof, and when conrmed 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. [ Rle /%, ec. +]
E*it% o! redem"tion This is the mortgagorCs e5ity (not ri3ht) of redemption which, as above stated, may be e+ercised by him even beyond the "$2day period Nfrom the date of service of the order,C and even after the foreclosure sale itself, provided it be before the order of conrmation of the sale. 1fter such order
of conrmation, no redemption can be eected any longer. [ poses Rosales v. poses lfonso, ".R. #o. $+44', 3st $, **+ ]
E+4"arte motion !or sale o! mort,a,e "ro"ert% @urisprudence suggests that the motion for the sale of the mortgaged property is non2litigable and may be made ex parte pursuant to the judgment of forclosure. ["overnment of 1.:. v. 2e las 0a@i3as, && 1hil. //% ]
6rit o! "ossession ministerial 1t that point, the issuance of a writ of possession, upon proper application and proof of title becomes merely a ministerial function. ;ectively, the court cannot e+ercise its discretion. [ dralin v. 1hilippine Veteran Ban;, ".R. #o. $/%&+, March ', *$$ ]
Motion !or issan$e o! )rit o! "ossession an e+$e"tion to t'ree :3; da% noti$e rle The motion for issuance of a writ of possession is an e+ception to the general 6 day notice rule for motions.
Dis"osition o! "ro$eeds o! sale The amount reali4ed 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 o 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 authori4ed agent, or to the person entitled to it. [Rle /%, ec. ]
De$ien$% #d,ment (f upon the sale of any real property as provided in the ne+t preceding section there be a balance due to the plainti after applying the proceeds of the sale, the court, upon motion, shall render judgment against the defendant for any such balance for which, by the record of the case, he may be personally liable to the plainti, upon which e+ecution may issue immediately if the balance is all due at the time of the rendition of the judgment3 otherwise3 the plainti shall be entitled to e+ecution at such time as the balance remaining becomes due under the terms of the original contract, which time shall be stated in the judgment. [ Rle /%, ec. / ] (t has been suggested that the mortgagor, who is not the debtor and who merely e+ecuted the mortgage to secure the principal debtorCs obligation, is not liable for the deciency unless he assumed liability for the same in the contract. [1hilippine 7rst Company v. chas, & 1hil. %& ]
&di$ial !ore$losre verss e+tra#di$ial !ore$losre There are two accepted modes of foreclosure= -a @udicial foreclosure pursuant to ule #B of the rules of court3 and -b ;+trajudicial foreclosure pursuant to 1ct 6%6!. ;+trajudicial foreclosure is the mode to be used if there is a special power inserted in or attached to the real estate mortgage. [Riano, spra ]
E*it% o! redem"tion The period mentioned in the judgment of the court is the period within which the mortgagor may start e+ercising his e)uity redemption, which is the right to e+tinguish the mortgage and retain ownership of the property by paying the debt. The payment may be made even after the foreclosure saled provided it is made before the sale is conrmed by the court. [ ": v. C!:, $4& CR $']
E*it% o! redem"tion ma% e e+er$ised even e%ond t'e F= da% "eriod or e!ore $on!ormation o! sale This is the mortgagorCs e)uity of redemption which may be e+ercised by him even beyond the "$2day period and even after the foreclosure itself, provided it be before the order of conrmation of the sale. 1fter such conrmation, no redemption can be eected any longer. [ 0impin v. :ntermediate ppellate Cort , $// CR %4]
Ri,'t o! redem"tion onl% a""li$ale in e+tra4#di$ial !ore$losre There is no right of redemption in a judicial foreclosure of mortgage under ule #B. This right e+ists only in e+trajudicial foreclosures where there is always a right of redemption within one year from the date of registration of the sale. [antos v. Re3ister of 2eeds of Manila, +% CR ]
3.1F.11. Partition Partition, in general, is the separation, division, and assignment of a thing held in common by those to whom it may belong. [ Cano Vda. 2e Viray v. poses =si, ".R. #o. $'%/, #ovember $, *$ ]
Presm"tion on "artition Partition presupposes the e+istence of a co2ownership of a property by two or more persons. Thus, a division of property cannot be ordered by the court unless the e+istence of ownership is rst established, and that an action for partition will not lie if the claimant has no rightful interest in the property. [Co "i; 0n v. Co, /&& CR $+$ ]
Modes Partition may be made in either of two ways= -a Ay agreement of the parties3 or -b Ay judicial proceedings under the ules of 'ourt. [ !i3racion"erilla v. Vda. 2e !i3racion, '' CR % ]
6'o ma% le $om"lain7
1 person having the right to compel the partition of real estate may do so as provided in this ule, setting forth in his complaint the nature and e+tent of his title and an ade)uate description of the real estate of which partition is demanded and joining as defendants all other persons interested in the property. [ Rle /', ec. $ ]
6'o s'old e made de!endants7 1ll the co2owners must be joined. 1ccordingly, an action will not lie without the joinder of all co2owners and other persons having interest in the property. ["arcia de 0ara v. "onales de 0ara, 1hil. ' ]
All $o4'eirs are indis"ensale "arties Thus, all the co2heirs and persons having an interest in the property are indispensable parties3 as such, an action for partition will not lie without the joinder of the said parties. The mere fact that Pedro 8epulveda, 8r. has repudiated the co2ownership between him and the respondent does not deprive the trial court of jurisdiction to ta/e cogni4ance of the action for partition, for, in a complaint for partition, the plainti see/s, rst, a declaration that he is a co2owner of the subject property3 and, second, the conveyance of his lawful shares. [ eplveda v. 1elae, ".R. #o. $&$'&, Janary +$, **&]
Matters to alle,e in t'e $om"laint !or "artition 8etting forth his complaint the nature and e+tent of his title and an ade)uate description of the real estate of which partition is demanded and joining as defendants all other persons interested in the property. [Rle /', ec. $]
Ri,'ts to t'e !rits and rents (n an action for partition in accordance with this ule, a party shall recover from another his just share of rents and prots received by such other party from the real estate in )uestion, and the judgment shall include an allowance for such rents and prot [Rle /', ec. %]
Isse o! e+$lsive o)ners'i" not "ro"er !or "artition :hen the allegations in the complaint assert the e+clusive ownership of the property to be partition, the nature of the action is not of partition. (t is an action for the recovery of property. [ 2e la Cr v. Cort of ppeals, $ CR %]
T)o sta,es in ever% a$tion !or "artition The rst phase of a partition andJor accounting suit is ta/en up with the determination of whether or not a co2ownership in fact e+ists, and a partition is proper. The second phase commences when it appears that Dthe parties are unable to agree upon the partitionE directed by the court. (n that event[,] partition shall be done for the parties by the [c]ourt with the assistance of not more than three -6 commissioners. [ 0acbayan v. amoy, /& CR /44 ]
Order o! "artition and "artition % a,reement (f after the trial the court nds that the plainti 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, ma/e the partition among themselves by proper instruments of conveyance, and the court shall conrm the partition so agreed upon by all the parties, and such partition, together with the order of the court conrming the same, shall be recorded in the registry of deeds of the place in which the property is situated. [ Rle /', ec. ]
Partition % $ommissioners/ a""ointment o! $ommissioners2 $ommissioners re"ort/ $ort a$tion "on $ommissioners re"ort A""ointment o! $ommissioners (f the parties are unable to agree upon the partition, the court shall appoint not more than three -6 competent and disinterested persons as commissioners to ma/e the partition, commanding them to set o to the plainti and to each party in interest such part and proportion of the property as the court shall direct. [Rle /', ec. + ]
Dt% o! t'e $ommissioners Aefore ma/ing such partition3 the commissioners shall ta/e and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be led in court with the other proceedings in the case. (n ma/ing the partition, the commissioners shall view and e+amine the real estate, after due notice to the parties to attend at such view and e+amination, and shall hear the parties as to their preference in the portion of the property to be set apart to them and the comparative value thereof, and shall set apart the same to the parties in lots or parcels as will be most advantageous and e)uitable, having due regard to the improvements, situation and )uality of the dierent parts thereof. [ Rle /', ec. ] The commissioners shall ma/e 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. Hpon the ling of such report, the cler/ of court shall serve copies thereof on all the interested parties with notice that they are allowed ten -%$ days within which to le objections to the ndings of the report, if they so desire.
&d,ment and its ee$ts (f actual partition of property is made, the judgment shall state denitely, by metes and bounds and ade)uate description, the particular portion of the real estate assigned to each party, and the eect of the judgment shall be to vest in each party to the action in severalty the portion of the real estate assigned to him. (f 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 ma/ing the payment, and the
eect of the judgment shall be to vest in the party ma/ing the payment the whole of the real estate free from any interest on the part of the other parties to the action. (f the property is sold and the sale conrmed by the court, the judgment shall state the name of the purchaser or purchasers and a denite description of the parcels of real estate sold to each purchaser, and the eect of the judgment shall be to vest the real estate in the purchaser or purchasers ma/ing the payment or payments, free from the claims of any of the parties to the action. 1 certied 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 e+penses of such recording shall be ta+ed as part of the costs of the action. [Rle /', ec. $$ ]
Partition o! "ersonal "ro"ert% The provisions of this ule 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. [Rle /', ec. $+]
Pres$ri"tion o! a$tion A$tion !or "artition im"res$ri"tile Prescription does not run in favor of a co2owner or co2heir against his co2owner or co2heirs as long as there is a recognition of the co2ownership, e+pressly or impliedly. [ rt. ', Civil Code] 1lthough the action to demand partition of a co2owned land does not prescribe, a co2owner may ac)uire ownership thereof by prescription where there e+ist a clear repudiation of the co2ownership and the co2owners are apprised of the claim of adverse and e+clusive ownership. [ >eirs of Restar v. >eirs of Cichon, 4& CR 4+$]
E+$e"tion The e+ception to the non2prescription of the action to partition is where one of the interested parties openly and adversely occupies the property without recogni4ing the co2ownership, in which case, ac)uisitive prescription may set it. [Re3alado, Remedial 0a6 Compendim, *$* ]
3.1F.1<. -or$ile entr% and nla)!l detainer Denitions and distin$tion (n actions for forcible entry, three -6 re)uisites have to be met for the municipal trial court to ac)uire jurisdiction. First, the plaintis must allege their prior physical possession of the property. 8econd, they must also assert that they were deprived of possession either by force, intimidation, threat, strategy, or stealth. Third, the action must be led within one -% year from the time the owners or legal possessors learned of their deprivation of physical possession of the land or building. [#ne v. 07 1hoenix oltions,".R. #o. $%*& , pril $, *$*]
Meanin, o! strate,%
M8trategyM in this regard could only mean machination or artice and considering that the parties tangled for wee/s to reach an agreement on the terms and conditions of a contract of lease. 8tealth, on the other hand, is dened as any secret, sly, or clandestine act to avoid discovery and to gain entrance into or remain within residence of another without permission. [mlon3 v. Cort of ppeals, + CR +4 ]
Re*isites The essential re)uisites of unlawful detainer are= :1; the fact of lease by virtue of a contract e+press or implied3 :<; the e+piration or termination of the possessorCs right to hold possession3 :3; withholding by the lessee of the possession of the land or building after e+piration or termination of the right to possession3 :5; letter of demand upon lessee to pay the rental or comply with the terms of the lease and vacate the premises3 and -! the action must be led within one -% year from date of last demand received by the defendant. [2e la Cr v. Cort of ppeals, ".R. #o. $+', 2ecember /, **/]
Prior "'%si$al "ossession mst e alle,ed and "roved (n forcible entry, the plainti must allege in the complaint, and prove, that he was in prior physical possession of the property in dispute until he was deprived thereof by the defendant by any of the means provided in 8ection %, ule 9$ of the ules either by force, intimidation, threat, strategy or stealth. (n unlawful detainer, there must be an allegation in the complaint of how the possession of defendant started or continued, that is, by virtue of lease or any contract, and that defendant holds possession of the land or building Dafter the e+piration or termination of the right to hold possession by virtue of any contract, e+press or implied. [ armiento v. Manalite >ome <6ners ssociation, ".R. #o. $%'&+,
Distin,is'ed !rom a$$ion "li$iana2 a$$ion reivindi$atoria and a$$ion interdi$tal There are three /inds of actions for the recovery of possession of real pro. property, namely, -% the summary action for forcible entry or detainer -denominated accion interdictal under the former law of procedure, 0ey de n@iciamiento Civil which see/s the recovery of physical possession only and is brought within one year in the justice of the peace court3 -& the accion pbliciana which is for the recovery of the right to possess and is a plenary action in an ordinary civil proceeding in a 'ourt of First (nstance3 and -6 accion de reivindicacion which see/s the recovery of ownership -which of course includes the jus utendi and the jus fruendi also brought in the 'ourt of First (nstance. [ Reyes v. ta. Maria, ".R. #o. 0-++$+ Jne ', $'4']
T)o @inds o! a$tion to re$over "ossession Two -& /inds of action to recover possession of real property which fall under the jurisdiction of the T' are= -% the plenary action for the recovery of the real right of possession -accion pbliciana when the dispossession has lasted for more than one year or when the action was led more than one -%
year from date of the last demand received by the lessee or defendant3 and -& an action for the recovery of ownership - accion reivindicatoria which includes the recovery of possession.
6'o ma% institte t'e a$tion and )'en/ a,ainst )'om t'e a$tion ma% e maintained 8ubject to the provisions of the ne+t 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 e+piration or termination of the right to hold possession, by virtue of any contract, e+press or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person, may, at any time within one -% year after such unlawful deprivation or withholding of possession, bring an action in the proper *unicipal Trial 'ourt 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. [Rle 4*, ec. $ ]
E#e$tment $ase $annot e restrained % in#n$tion 1n ejectment case is not abated by= (njunction, 1ccion Publicana, :rit of Possession where ownership is the principal issue, 1ction for )uieting of title of property, suits for specic performance and action for reformation of instrument. The said actions do not involve physical or de facto possession. [ilmon to pply v. Cort of ppeals, *% CR $*% ]
No oli,ation on "lainti to "a% $om"ensation to de!endant There is nothing in e+isting laws and procedural rules that obliges a plainti in an unlawful detainer or forcible entry case to pay compensation or nancial assistance to defendants whose occupation was either illegal from the beginning or had become such when they refused to vacate the subject premises upon demand by the owner or person having better right to its possession. n the contrary, our ules of 'ourt e+pressly recogni4es the right of such plainti to claim for damages arising from the unlawful deprivation of physical possession. - ntio5ia 2evelopment Corporation nd Jamaica Realty Mar;etin3 Corporation Vs. Ben@amin 1. Rahacal, lalia Cant le@o, 7eresita Cant le@o, Rdy Ramos, 2omin3o 3ilar, 2omin3o Cantale@o, Vlr3inia Cant le@o, 2lce 5ino, Ro3elioredondo, Vir3ilio Cant le@o, !rancisco 0mbres nd Rodolfo 2ela Cerna, ".R. #o. $%%+ eptember *&, *$)
Pleadin,s allo)ed The only pleadings allowed to be led are the complaint, compulsory counterclaim and cross2claim pleaded in the answer, and the answers thereto. 1ll pleadings shall be veried. [Rle 4*, ec. ]
A$tion on t'e $om"laint The court may, from an e+amination 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. (f no ground for dismissal is found, it shall forthwith issue summons. [Rle 4*, ec. &] 'ases re)uiring referral for conciliation, where there is no showing of compliance with such re)uirement, shall be dismissed without prejudice, and may be revived only after that re)uirement shall have been complied with. [Rle 4*, ec. $]
6'en demand is ne$essar%7 Hnless otherwise stipulated, such action by the lesser shall be commenced only after demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee, or by serving written notice of such demand upon the person found on the premises if no person be found thereon, and the lessee fails to comply therewith after fteen -%! days in the case of land or ve -! days in the case of buildings. [ Rle 4*, ec. ] (t is apparent from this provision that a demand is a pre2re)uisite to an action for unlawful detainer, when the action is Mfor failure to pay rent due or to comply with the conditions of his lease,M and where the action is to terminate the lease because of the e+piration of its term. [ Co 7iamco v. 2ia, 4& 1hil. /4 ]
Rle on oral demand (t has been ruled, however, that the demand upon a tenant may be oral. 8u5cient evidence must be adduced to show that there was indeed a demand li/e testimonies from disinterested and unbiased witnesses. [ Ja;ihaca vs. 5ino, $%$ CR /4]
Natre o! t'e "ro$eedin,s The proceeding is summary in nature, jurisdiction over which lies with the proper *T' or metropolitan trial court. The action must be brought up within one year from the date of last demand, and the issue in the case must be the right to physical possession. [2elos Reyes v. poses
E+$e"tions to t'e rle t'at demand is ne$essar% The action for unlawful detainer was based on the e+piration of the contract of lease, a demand to vacate was not necessary for judicial action after the e+piration of the terms of the lease. There being no need for any demand or notice, there was li/ewise no necessity to wait for ve -! days upon notice or demand before an action for unlawful detainer may be led. [ r5elada v. 1hilippine Veterans Ban;, ".R. #o. $+'$+4, March +$, *** ]
Mont' to mont' lease/ :hen the parties to an oral lease do not + a specied period. 8ince the rentals were paid monthly, the lease, even if verbal, may be deemed to be on a monthly basis, e+piring at the end of every month. [ >eirs of ico v.
Cort of ppeals, ".R. #o. $*/$&, Janary $, $''4 ] Demand not ne$essar% in $ase a$tion !or n"aid rentals ?emand is also not necessary when the action is led for a sum of money, consisting of unpaid rents, li)uidated damages, attorney0s fees, and costs. (ntruders, not tenants of the owner, cannot use this remedy. [ "anson v. Ban, ".R. #o. 0-$%/, 3st /, $'/ ]
Preliminar% in#n$tion and "reliminar% mandator% in#n$tion The court may grant preliminary injunction, in accordance with the provisions of ule !B hereof, to prevent the defendant from committing further acts of dispossession against the plainti. [Rle 4*, ec. $&]
Resolvin, de!ense o! o)ners'i" :hen the defendant raises the defense of ownership in his pleadings and the )uestion 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. [Rle 4*, ec. $/ ]
Ee$t o! #d,ment in e#e$tment4$on$lsive as to "ossession The judgment rendered in an action for forcible entry or detainer shall be conclusive with respect to the possession only and shall in no wise bind the title or aect the ownership of the land or building. 8uch judgment shall not bar an action between the same parties respecting title to the land or building. [Rle 4*, ec. $%]
&d,ment on o)ners'i" merel% "rovisional 1n 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. The foregoing doctrine is a necessary conse)uence of the nature of forcible entry and unlawful detainer cases where the only issue to be settled is the physical or material possession over the real property, that is, possession de facto and not possession de @re. [>ilario v. Cort of ppeals, ".R. #o. $$%/&, 3st 4, $''/]
Isse o! o)ners'i" merel% in$idental The assertion by the defendant of ownership over the disputed property does not serve to divest the inferior court of its jurisdiction. The defendant cannot deprive the court of jurisdiction by merely claiming ownership of the property involved. [ Rral Ban; of ta. :3nacia v. 2imatlac, ".R. #o. $*$&, pril ', **+ ]
E#e$tment/ "ossession de facto/ distin$tion et)een !or$ile entr% and nla)!l detainer $ases.
1t the outset, it bears to reiterate the settled rule that the only )uestion that the courts resolve in ejectment proceedings is= who is entitled to the physical possession of the premises, that is, to the possession de facto and not to the possession de jure. (t does not even matter if a partyCs title to the property is )uestionable. (n an unlawful detainer case, the sole issue for resolution is the physical or material possession of the property involved, independent of any claim of ownership by any of the party litigants. :here the issue of ownership is raised by any of the parties, the courts may pass upon the same in order to determine who has the right to possess the property. The adjudication is, however, merely provisional and would not bar or prejudice an action between the same parties involving title to the property. Janita rmitaKo, represented by her ttorney-in-fact, :sabelo rmitaKo v. 0ailanie M. 1a3las 3 ".R. #o. $4+/. Janary +, *$+
Natre o! &d,ment in E#e$tion $ase/ re*isites !or sta%. Re*irements !or a""eal The ruling in 'hua v. 'ourt of 1ppeals -&B# 8'1 769, 777277! [%""B] is instructive on the means of staying the immediate e+ecution of a judgment in an ejectment case, to wit= 1s a general rule, a judgment in favor of the plainti in an ejectment suit is immediately e+ecutory, in order to prevent further damage to him arising from the loss of possession of the property in )uestion. To stay the immediate e+ecution of the said judgment while the appeal is pending the foregoing provision re)uires that the following re)uisites must concur= -% the defendant perfects his appeal3 -& he les a spersedeas bond3 and -6 he periodically deposits the rentals which become due during the pendency of the appeal. The failure of the defendant to comply with any of these conditions is a ground for the outright e+ecution of the judgment, the duty of the court in this respect being Dministerial and imperative.E Ience, if the defendant2appellant perfected the appeal but failed to le a spersedeas bond, the immediate e+ecution of the judgment would automatically follow. 'onversely, the ling of a spersedeas bond will not stay the e+ecution of the judgment if the appeal is not perfected. erminia cban3 v. >on. Jimmy 0con, Jr., et al.,".R. #o. $//, Janary $&, *$.
o) to sta% t'e immediate e+e$tion o! #d,ment ?efendant must ta/e the following steps to stay the e+ecution of the judgment= %. Perfect an appeal3 &. File a supersedeas bond to pay for the rents, damages and costs accruing down to the time of the judgment appealed from3 and 6. ?eposit periodically with the T', during the pendency of the
appeal, the adjudged amount of rent due under the contract or if there be no contract, the reasonable value of the use and occupation of the premises. [Rle 4*, ec. $']
Natre o! #d,ment in e#e$tment 1s a general rule, a judgment in an ejectment case is immediately e+ecutory, in order to prevent further damage to him arising from the loss of possession. To stay the immediate e+ecution of the judgment while the appeal is pending, 8ec. %" of ule 9$ must be complied with. [ Cha v. Cort of ppeals, %/ CR +4]
Smmar% "ro$edre2 "ro'iited "leadin,s %. *otion to dismiss the complaint e+cept on the ground of lac/ of jurisdiction over the subject matter, or failure to comply with section %&3 &. *otion for a bill of particulars3 6. *otion for new trial, or for reconsideration of a judgment, or for reopening of trial3 7. Petition for relief from judgment3 !. *otion for e+tension of time to le pleadings, a5davits or any other paper3 #. *emoranda3 9. Petition for certiorari , mandams , or prohibition against any interlocutory order issued by the court3 B. *otion to declare the defendant in default3 ". ?ilatory motions for postponement3 %$. eply3 %%. Third2party complaints3 %&. (nterventions [Rle 4*, ec. $+]
3.1F.13. Contem"t 'ontempt of court has been dened as a willful disregard or disobedience of a public authority. (n its broad sense, contempt is a disregard of, or disobedience to, the rules or orders of a legislative or judicial body or an interruption of its proceedings by disorderly behavior or insolent language in its presence or so near thereto as to disturb its proceedings or to impair the respect due to such a body. (n its restricted and more usual sense, contempt comprehends a despising of the authority, justice, or dignity of a court. [0oreno hippin3 v. 2istribtion ssociation, /&/ CR ++$ ] (t signies not only a willful disregard or disobedience of the courtCs orders but also conduct tending to bring the authority of the court and the administration of law into disrepute or, in some manner, to impede the due administration of justice. [ iy v. #ational 0abor Relations Commission, ".R. #o. $&%'4$, 3st &, **& ] 'ontempt of court is dened as a disobedience to the court by acting in opposition to its authority, justice and dignity, and signies not only a willful disregard of the courtCs order, but such conduct which tends to bring the authority of the court and the administration of law into disrepute or, in some manner, to impede the due administration of justice. To be considered contemptuous, an act must be clearly contrary to or prohibited by the order
of the court. Thus, a person cannot be punished for contempt for disobedience of an order of the 'ourt, unless the act which is forbidden or re)uired to be done is clearly and e+actly dened, so that there can be no reasonable doubt or uncertainty as to what specic act or thing is forbidden or re)uired. Rivlet 3ro-:ndstrial Corporation v. nthony 1arn3ao, #arciso B. #ieto, in their capacity as =ndersecretaries of 0e3al Lairs and !ield
9inds o! $ontem"t 'ontempt of court is of two /inds, namely= direct contempt, which is committed in the presence of or so near the judge as to obstruct him in the administration of justice3 and constructive or indirect contempt, which consists of willful disobedience of the lawful process or order of the court. [#arcida v. Bo6en, 1hil. +/& ] 1rpose and natre of each
-n$tion o! $ontem"t 'ontempt proceedings has a dual function= -% vindication of public interest by punishment of contemptuous conduct3 and -& coercion to compel the contemnor to do what the law re)uires him to uphold the power of the 'ourt, and also to secure the rights of the parties to a suit awarded by the 'ourt. [Re3alado v. "o, &$ CR /$/ ] ?irect 'ontempt ?irect contempt, or contempt in facie criae , is misbehavior committed in the presence of or so near a court or judge so as to obstruct or interrupt the proceedings before the same, including disrespect toward the court, and can be punished summarily without hearing. (t is conduct directed against or assailing the authority and dignity of the court or a judge, or in the doing of a forbidden act. [ncinas v. #ational Boo;store, ".R. #o. $/4*, Jly %, **&]
6'en dire$t "ro"er7 1 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, oensive personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe an a5davit or deposition when lawfully re)uired to do so, may be summarily adjudged in contempt by such court and punished by a ne not e+ceeding two thousand pesos or imprisonment not e+ceeding ten -%$ days, or both, if it be a egional Trial 'ourt or a court of e)uivalent or higher ran/, or by a ne not e+ceeding two hundred pesos or imprisonment not e+ceeding one -% day, or both, if it be a lower court. [ Rle 4$, ec. $ ] 'ontemptous language in a pleading Hnfounded accusations or allegations or words in a pleading tending to embarrass the court or to bring it into disrepute. (f a pleading containing derogatory, oensive and malicious statements is submitted in the same
court or judge, it is direct contempt. [ Re 0etter dated $ !eb. **& of tty. #oel orreda, .M. #o. *&-+-*-C. Jly , **& ] Furthermore, assuming that the conclusion of petitioner is justied by the facts, it is still not a valid defense in cases of contempt. D:here the matter is abusive or insulting, evidence that the language used was justied by the facts is not admissible as a defense. espect for the judicial o5ce should always be observed and enforced.E [Cr v. "i3oyon, /&% CR & ]
Indire$t Contem"t (ndirect contempt or constructive contempt is that which is committed out of the presence of the court. [bic Bay Metropolitan thority v. Rodri3e, /$' CR $4/ ] 1 person guilty of any of the following acts may be punished for indirect contempt3 -a *isbehavior of an o5cer of a court in the performance of his o5cial duties or in his o5cial transactions3 -b ?isobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of e+ecuting acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto3 -c 1ny abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under section % of this ule3 -d 1ny improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice3 -e 1ssuming to be an attorney or an o5cer of a court, and acting as such without authority3 -f Failure to obey a subpoena duly served3 -g The rescue, or attempted rescue, of a person or property in the custody of an o5cer by virtue of an order or process of a court held by him. [Rle 4$, ec. +]
Remed% a,ainst dire$t $ontem"t/ "enalt% %. The penalty for direct contempt depends upon the court which the act was committed. &. (f the act constituting direct contempt was committed against an T' or a court of e)uivalent or higher ran/, the penalty is a ne not e+ceeding P&,$$$ or imprisonment not e+ceeding %$ days, or both3 6. (f the act constituting direct contempt was committed against a lower court, the penalty is a ne not e+ceeding P&$$ or imprisonment not e+ceeding one day, or both3 [Rle 4$, ec. $ ]and 7. (f the contempt consists in the refusal or omission to do an act which is yet within the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it.
!. 1 person adjudged in direct contempt may not appeal therefrom. Iis remedy is a petition for certiorari or prohibition directed against the court which adjudged him in direct contempt. [Rle 4$, ec. ] Pending the resolution of the petition for certiorari or prohibition, the e+ecution of the judgment for direct contempt shall be suspended. The suspension however shall ta/e place only if the person adjudged in contempt les a bond +ed by the court which rendered the judgment. This bond is conditioned upon his performance of the judgment should the petition be decided against him.
Remed% a,ainst indire$t $ontem"t/ "enalt% % The punishment for indirect contempt depends upon the level of the court against which the act was committed3 & :here the act was committed against an T' or a court of e)uivalent or higher ran/, he may be punished by a ne not e+ceeding P6$,$$$ or imprisonment not e+ceeding # months, or both3 6 :here the act was committed against a lower court, he may be punished by a ne not e+ceeding P!,$$$ or imprisonment not e+ceeding one month, or both. 1side from the applicable penalties, if the contempt consists in the violation of a writ of injunction, T or stats 5o order, he may also be ordered to ma/e complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved3 [Rle 4$, ec. 4 ]and 7 :here the act was committed against a person or entity e+ercising )uasi2judicial functions, the penalty imposed shall depend upon the provisions of the law which authori4es a penalty for contempt against such persons or entities. ! The person adjudged in indirect contempt may appeal from the judgment or nal order of the court in the same manner as in criminal cases. The appeal will not however have the eect of suspending the judgment if the person adjudged in contempt does not le a bond in an amount +ed by the court from which the appeal is ta/en. This bond is conditioned upon his performance of the judgment or nal order if the appeal is decided against. [Rle 4$, ec. $$]
o) $ontem"t "ro$eedin,s are $ommen$ed7 Proceedings for indirect contempt may be initiated mot propio by the court against which the contempt was committed by an order or any other formal charge re)uiring the respondent to show cause why he should not be punished for contempt. (n all other cases, charges for indirect contempt shall be commenced by a veried petition with supporting particulars and certied true copies of documents or papers involved therein, and upon full compliance with the re)uirements for ling initiatory pleadings for civil actions in the court concerned. (f 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 doc/eted, 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. [Rle 4$, ec. ]
6'ere to le7 :here the charge for indirect contempt has been committed against a egional Trial 'ourt or a court of e)uivalent or higher ran/, or against an o5cer appointed by it, the charge may be led with such court. :here such contempt has been committed against a lower court, the charge may be led with the egional Trial 'ourt of the place in which the lower court is sitting3 but the proceedings may also be instituted in such lower court subject to appeal to the egional Trial 'ourt of such place in the same manner as provided in section %% of this ule. [ Rle 4$, ec. &]
6'en im"risonment s'all e im"osed :hen 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. [ Rle 4$, ec. %]
6'o $an order t'e $onnement7 (t is only the judge, who orders the connement of a person for contempt of court, who can issue the order of release [ :notran v. 0imsiaco, Jr. &% CR %]
Contem"t a,ainst *asi4#di$ial odies Hnless otherwise provided by law, this ule shall apply to contempt committed against persons, entities, bodies or agencies e+ercising )uasi2 judicial functions, or shall have suppletory eect to such rules as they may have adopted pursuant to authority granted to them by law to punish for contempt. The egional Trial 'ourt of the place wherein the contempt has been committed shall have jurisdiction over such charges as may be led therefor. [Rle 4$, ec. $]
Laor ariter and NLRC 'as "o)er o! $ontem"t 1s is clear under the >abor 'ode, the labor arbiter or the 'ommission is empowered or has jurisdiction to hold the oending party or parties in direct or indirect contempt. The petitioners therefore, have not improperly led the charge of indirect contempt in the <>'. [ Robosa v. #0RC, ".R. #o. $4/*%&, !ebrary %, *$ ]
o) $ommen$ed7 (ndirect contempt pursuant to ule 9% of )uasi2judicial bodies can only be done by initiating them in the proper T'. (t is not within their jurisdiction and competence to decide the indirect contempt cases. [ 0and Ban; of the 1hilippines v. 0istana, *% CR +% ]
