SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
ATTY. CAPELLAN
SPECIAL CIVIL ACTIONS WHAT IS A SPECIAL CIVIL ACTION? •
A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong
•
it can either be ORDINARY or SPECIAL
RULE 62: Interpleader Section 1. When interpleader proper. — Whenever conflicting 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, he may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves. (1a, R63)
WHAT ARE THE SPECIAL CIVIL ACTIONS? 1.
Interpleader
2.
declaratory relief and similar remedies
3.
Review of judgment and final orders or resolutions of the COMELEC and the COA
4.
Certiorari, Prohibitions and Mandamus
5.
Quo Warranto
6.
Expropriation
7.
Foreclosure if Real Estate Mortgage
8.
Partition
9.
Forcible Entry and Unlawful Detainer
WHAT IS INTERPLEADER? •
Is a remedy whereby a person who has personal or real property in his possession, or an obligation to render wholly or partially, without claiming any right to either, comes to court to asks that the persons who claim the said personal property or real property or who consider themselves entitled to demand compliance with the obligation, be required to litigate among themselves in order to determine finally who is entitled to one or the other thing.
•
The remedy is afforded to protect a person not against double liability but against double vexation in respect of one liability.
•
Not available to resolve issue of breach of undertaking → it should be done in an ordinary civil action for specific performance or other relief
INDESPENSIBLE REQUISITES
10. Contempt
1.
conflicting claims upon the same subject matter are or may be made against a person (plaintiff-in-interpleader) who claims no interest whatever in the subject matter, or an interest which in whole or in part is not disputed by the claimants
2.
two or more claimants to the fund or thing in dispute through separate and different interests. The claims must be adverse before relief can be granted and the parties sought to be interpleaded must be in a position to make effective claims.
3.
The fund, thing, or duty over which the parties assert adverse claims must be one and the same and derived from the same source
WHAT RULES GOVERN SPECIAL CIVIL ACTIONS? •
Rules 63 – 71 of the Rules of Court
•
Rule 1 – 56 ( governing ordinary civil actions) insofar as they are not inconsistent with or may serve to supplement the provisions of Rule 62 to 71
HOW ARE THEY INSTITUTED? BY COMPLAINT • • • • •
Interpleader expropriation foreclosure of real estate mortgage partition forcible entry and unlawful detainer
BY PETITIONER • •
• • •
Declaratory relief and similar remedies review of judgment and final orders or resolutions of COMELEC and the COA Certiorari, prohibition and manadamus quo warranto contempt
WHEN MAY AN ACTION IN INTERPLEADER BE FILED? •
file an action of interpleader within a reasonable time after a dispute has arisen without waiting to be sued by either of the contending claimants. Otherwise, he may be barred by laches or undue delay.
•
But where he acts with reasonable diligence in view of the environmental circumstances, the remedy is not barred.
JURISDICTION?
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ATTY. CAPELLAN (e) That there is another action pending between the same parties for the same cause;
MTC
If the subject matter of the action is Value beyond the prescribed for MTC's personal property, valued at not more than jurisdiction for personal or real property. 300k outside Metro Manila or not more than 400k in Metro Manila
(f) That the cause of action is barred by a prior judgment or by the statute of limitations; (g) That the pleading asserting the claim states no cause of action; (h) That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished;
if the subject matter is real property with an assessed value at not more than 20k outside metro manila or not more than 50k inside metro manila
Section 2. Order. — Upon the filing of the complaint, the court shall issue an order requiring the conflicting claimants to interplead with one another. If the interests of justice so require, the court may direct in such order that the subject matter be paid or delivered to the court. (2a, R63)
Section 3. Summons. — Summons shall be served upon the conflicting claimants, together with a copy of the complaint and order. (3, R63)
Section 4. Motion to dismiss. — Within the time for filing an answer, each claimant may file a motion to dismiss on the ground of impropriety of the interpleader action or on other appropriate grounds specified in Rule 16. The period to file the answer shall be tolled and if the motion is denied, the movant may file his answer within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of denial. (n)
WHAT GROUNDS MAY BE USED TO FILE A MOTION TO DISMISS? •
RULE 16: Motion to Dismiss (a) That the court has no jurisdiction over the person of the defending party; (b) That the court has no jurisdiction over the subject matter of the claim; (c) That venue is improperly laid; (d) That the plaintiff has no legal capacity to sue;
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(i) That the claim on which the action is founded is enforceable under the provisions of the statute of frauds; and (j) That a condition precedent for filing the claim has not been complied with. (1a) •
Motion to Dismiss on the ground of impropriety of the Interpleader action may be filed
•
Upon DENIAL of the motion to dismiss → claimant has the remaining period within which to answer, but in no case, less than 5 days from notice of denial
•
NO CONFLICTINC CLAIMS → Interpleader may be dismissed for lack of cause of action
Section 5. Answer and other pleadings. — Each claimant shall file his answer setting forth his claim within fifteen (15) days from service of the summons upon him, serving a copy thereof upon each of the other conflicting claimants who may file their reply thereto as provided by these Rules. If any claimant fails to plead within the time herein fixed, the court may, on motion, declare him in default and thereafter render judgment barring him from any claim in respect to the subject matter. The parties in an interpleader action may file counterclaims, cross-claims, third-party complaints and responsive pleadings thereto, as provided by these Rules. (4a, R63)
IF CLAIMANTS FAILED TO PLEAD WITHIN THE TIME FIXED? •
Court, ON MOTION, declare him in default, and thereafter render judgment barring him from any claim in respect to the subject matter
•
The defendant should be notified of the motion to declare him in default
OTHER PLEADINGS? •
parties in an interpleader action may file counterclaims, cross-claims, third party complaints and responsive pleadings thereto, "as provided by these Rules." The second paragraph was added to Section 5 to expressly authorize the additional pleadings and claims enumerated therein, in the interest of a complete adjudication of the controversy and its incidents
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ATTY. CAPELLAN in a pending case
Section 6. Determination. — After the pleadings of the conflicting claimants have been filed, and pre-trial has been conducted in accordance with the Rules, the court shall proceed to determine their respective rights and adjudicate their several claims. (5a, R63)
•
in a complaint for interpleader shall determine the rights and obligations of the parties and adjudicate their respective claims. Such rights, obligations, and claims could only be adjudicated if put forward by the aggrieved party in assertion of his rights.
Section 7. Docket and other lawful fees, costs and litigation expenses as liens. — The docket and other lawful fees paid by the party who filed a complaint under this Rule, as well as the costs and litigation expenses, shall constitute a lien or change upon the subject matter of the action, unless the court shall order otherwise. (6a, R63)
WHO PAYS FOR DOCKET FEES? •
The person who files the complaint shall pay the docket and other lawful fees and shall bear the costs and other litigation expenses
•
whatever is paid to the court by the person who filed the complaint , including the costs and litigation expenses→ constitute a lien or charge upon the subject matter of the action, unless the court shall order otherwise
WHAT CONSTITUTE A LIEN OR CHARGE UPON THE SUBJECT MATTER OF THE ACTION? •
Costs and litigations expenses
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Docket and other lawful fees paid by the party who filed the complaints
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UNLESS : the court shall order otherwise
IS A PLAINTIFF-INTERPLEADER ENTITLED TO ATTORNEY'S FEES? •
No provision relative to fees of the attorney for the plaintiff-in-interpleader
•
No provision but taking into consideration the purpose : fees of an interpleader's attorney be defrayed with the funds sought to be distributed, unless there be some reason justifying the payment thereof by some defendants in the case.
INTERPLEADER
INTERVENTION
Original action
Ancillary action
Commenced by filing of a complaint
Commenced by a motion to intervene filed
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Presupposes that plaintiff has no interest Proper in any of these 4 situations. A in the subject matter of the action or has person having interest therein in whole or in part which is • legal interest in the matter in not disputed by the other parties litigation • interest in the success of either of the parties • interest against both • is so situated as to be adversely affected by a distribution or other disposition of the property in custody of the court or of an officer Defendants are being sued precisely to Defendants are original parties to the interpleade them pending suits
RULE 63: Declaratory Relief and Similar Remedies ORDINARY ACTION
DECLARATORY RELIEF
Write of execution is available
No writ of execution because the object is merely interpretation or definitive pronouncement of rights under a law, rule or order there is nothing to execute.
There is violation or breach of right
No violation or breach of right
Motion to dismiss Rule 16-17
Additional ground for Motion to dismiss Rule 63 Sec 5. The court may refuse to exercise the power to declare rights and to construe instruments: • Decision would not terminate the uncertainty or controversy which gave rise to the action •
the declaration or construction is not necessary and proper under the circumstances
Section 1. Who may file petition. — Any person interested under a deed, will, contract
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SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before breach or violation thereof bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder. (Bar Matter No. 803, 17 February 1998) An action for the reformation of an instrument, to quiet title to real property or remove clouds therefrom, or to consolidate ownership under Article 1607 of the Civil Code, may be brought under this Rule. (1a, R64)
WHAT ARE THE REMEDIES? 1.
DECLARATORY RELIEF wherein the court may refuse to exercise the power to declare rights and to construe instruments
2.
SIMILAR REMEDIES wherein the court is bound to render judgment
• actions to reform an instrument • quiet title to real property or remove clouds from title of real property • consolidate ownership under Art. 1607 of the Civil Code • PURPOSE OF DECLARATORY RELIEF •
• •
ATTY. CAPELLAN 3.
controversy must be between persons whose interests are adverse
4.
party seeking declaratory relief must have a legal interest in the controversy
5.
issues involved must be ripe for judicial determination
JUSTICIABLE CONTROVERSY 1.
real parties in interest who asserts adverse claims and present a ripe issue
2.
petition must shown “an active antagonistic assertion of a legal right on one side and a denial thereof on the other concerning a real, and not a mere theoretical question or issue”
WHAT IS THE SUBJECT MATTER? (Exclusive list) •
Deed
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will
•
contract or other written instrument
•
statute
•
executive order or regulation or
•
ordinances
to ask the court to make a proper interpretation of a contract, not to ask for • added: any other government regulation injunction, execution or other relief beyond the adjudication of the legal right WHEN WILL IT NOT LIE? which are the subject of controversy between the parties • Action is to obtain judicial declaration of CITIZENSHIP confined to the actual controversy within the court's jurisdiction to secure an AUTHORITATIVE STATEMENT of the rights and obligations of the parties under the subject matter.
•
establish illegitimate filiation and determine hereditary rights
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where the terms of the assailed ordinances are not ambiguous or of doubtful meaning
WHO HAS EXCLUSIVE JURISDICTION FOR DECLARATORY RELIEF •
Regional Trial Court
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court decision is the subject of an action
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Except:
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action is to resolve a political question or issue
◦
Acton for quieting of title → depends on the assessed value of the property
•
◦
if the petition has far-reaching implications and it raises questions that should be resolved, it may be treated as one for prohibition or for mandamus, which the SC or CA may take cognizance
action is to try or determine issues rather than a construction of definite status, rights or relations
•
petition is based on the happening of a contingent event
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contract or statute on which action is based has been breached, because after the breach, the regular remedies obtain
REQUISITES OF AN ACTION FOR DECLARATORY RELIEF
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1.
subject matter must be those listed (exclusive list)
•
action is to merely seek an advisory opinion from the court on a moot question
2.
actual justiciable controversy
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no showing that the plaintiff has any business or interest that would be affected by the questioned ordinance
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where administrative remedies have not yet been exhausted
ATTY. CAPELLAN action. (2a, R64)
DECLARATORY RELIEF DISTINGUISHED FROM OTHER JUDGMENTS DECLARATORY RELIEF •
distinctive characteristic of a DR is that the declaration STANDS BY ITSELF, no executory process follows as of course.
•
A judgment does not involve executory or coercive relief.
•
Declaratory judgments involve a real controversy and are res judicata and binding upon the parties and those in privity with them
ORDINARY JUDGMENTS •
Primarily intended in most cases to remedy or make compensation for injuries already suffered and for that reason must, in addition to determining the rights involved, grant consequential or curative relief in some form.
IS A 3RD PARTY COMPLAINT PROPER IN A DECLARATORY RELIEF ACTION? •
•
NO. IN a 3rd party complaint, the 3rd party plaintiff is supposed to seek contribution, indemnity, subrogation or other relief from the 3 rd party defendant in respect of the claim of the plaintiff against him.
•
YES, if the allegations in the complaint are sufficient to make out a case for specific performance or recovery of property with claims for damages and that the defendant did not raise an issue in the trial court to challenge the remedy.
•
Court can grant affirmative relief as may be warranted by the evidence
MAY A COMPULSORY CLAIM BASED ON OR ARISING FROM THE SAME TRANSACTION, DEED OR CONTRACT ON WHICH THE PETITIONER IS BASED, BE FILED AND ENTERTAINED IN DECLARATORY RELIEF PROCEEDINGS? YES, nothing in the nature of a special civil action for declaratory relief that proscribes the filing of a counterclaim based on the same transaction, deed or contract subject of the complaint.
Section 2. Parties. — All persons who have or claim any interest which would be affected by the declaration shall be made parties; and no declaration shall, except as otherwise provided in these Rules, prejudice the rights of persons not parties to the
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1.
a person •
who is INERESTED under a deed, will, contract or other written instrument or
•
whose rights will be affected by a statute, executive order, or regulation, ordinance or other government regulation
2.
all persons who have or CLAIM any interest which would be AFFECTED BY THE DECLARATION
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a declaration shall not except as otherwise provided by the rules → prejudice the rights of persons not parties to the action
IS NON-JOINDER OF NECESSARY PARTIES A JURISDICTION DEFECT? •
NO, but it may be a ground for dismissal under Section 5 Rule 63
•
nothing in this section which says that non-joiner who have or claim any interest is a defect
•
this section contemplates a situation where there are other persons who would be affected by the declaration, but who were not impleaded as necessary parties, in which case, the declaration shall not prejudice them.
It cannot be granted because in a declaratory relief, the court is confined merely to the INTERPRETATION of the terms of a contract.
MAY THE COURT GRANT AN AFFIRMATIVE RELIEF IN AN ACTION FOR DECLARATORY RELIEF?
•
PARTIES
Section 3. Notice on Solicitor General. — In any action which involves the validity of a statute, executive order or regulation, or any other governmental regulation, the Solicitor General shall be notified by the party assailing the same and shall be entitled to be heard upon such question. (3a, R64)
MAY A VALIDITY OR CONSTITUTIONALITY OF AN EO OR OTHER GOVERNMENTAL REGULATION BE SUBJECT OF DECLARATORY RELIEF? •
YES
Section 4. Local government ordinances. — In any action involving the validity of a local government ordinance, the corresponding prosecutor or attorney of the local governmental unit involved shall be similarly notified and entitled to be heard. If such ordinance is alleged to be unconstitutional, the Solicitor General shall also be notified and entitled to be heard. (4a, R64)
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SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS Section 5. Court action discretionary. — Except in actions falling under the second paragraph of section 1 of this Rule, the court, motu proprio or upon motion, may refuse to exercise the power to declare rights and to construe instruments in any case where a decision would not terminate the uncertainty or controversy which gave rise to the action, or in any case where the declaration or construction is not necessary and proper under the circumstances. (5a, R64) WHEN CAN A COURT REFUSE TO MAKE A JUDICIAL DECLARATION? •
Decision would not terminate the uncertainty or controversy which gave rise to the action
ATTY. CAPELLAN •
NO, the CSC is excluded from the covered of Rule 64.
•
CSC falls under the CA, under RA 7902 which grants the CA exclusive appellate jurisdiction over all awards, judgments, final orders or resolutions of or authorized by the said Commission
Section 2. Mode of review. — A judgment or final order or resolution of the Commission on Elections and the Commission on Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65, except as hereinafter provided. (n; Bar Matter No. 803, 17 February 1998)
the declaration or construction is not necessary and proper under the WHAT IS THE MODE OF REVIEW? circumstances • The mode of review is by a PETITION FOR CERTIORARI under RULE 65, TWO PRINCIPAL CRITERIA GUIDING THE POLICY IN FAVOR OF RENDERING exclusively to the SC and within a limited period of 30 days from notice, NOT DECLARACTORY JUDGMENTS ARE: APPEAL by certiorari under Rula 45 1. when the judgment will serve a useful purpose in clarifying and settling the legal Section 3. Time to file petition. — The petition shall be filed within thirty (30) days relations in issue from notice of the judgment or final order or resolution sought to be reviewed. The filing 2. when it will terminate and afford relief from the uncertainty, insecurity, and of a motion for new trial or reconsideration of said judgment or final order or resolution, controversy giving rise to the proceeding if allowed under the procedural rules of the Commission concerned, shall interrupt the period herein fixed. If the motion is denied, the aggrieved party may file the petition Section 6. Conversion into ordinary action. — If before the final termination of the within the remaining period, but which shall not be less than five (5) days in any event, case, a breach or violation of an instrument or a statute, executive order or regulation, reckoned from notice of denial. (n) ordinance, or any other governmental regulation should take place, the action may thereupon be converted into an ordinary action, and the parties shall be allowed to file such pleadings as may be necessary or proper. (6a, R64) 65 vs 45 : filing date •
• •
If there has been breach BEFORE THE FILING of the action → declaratory relief cannot be availed of
•
it is sufficient there is a breach of the law, an actionable violation to bar a complaint for declaratory relief.
RULE 64: Review of Judgments and Final Orders or Resolutions of the Commission on Elections and the Commission on Audit Section 1. Scope. — This Rule shall govern the review of judgments and final orders or resolutions of the Commission on Elections and the Commission on Audit. (n)
DOES THIS COVER CSC?
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RULE 45 Filed within 30 days from the notice of the judgment or final order or resolution sought to be reviewed
RULE 65 •
Filed within 60 days
IN CASE OF DENIAL OF A MOTION FOR NEW TRIAL OR RECONSIDERATION OF THE JUDGMENT OR FINAL ORDER OR RESOLUTION, WHAT IS THE PERIOD FOR FILING A PETITION FOR CERTIORARI UNDER RULE 64? •
in the event a motion for new trial or reconsideration, the filings of which interrupts the 30 day period for filing a petition for certiorari, is denied, the petition for certiorari under Rule 64 shall be filed within the remaining period, but not less than 5 days from the notice of denial
•
a new period of 60 days from notice of denials is given for the filing of the
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SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS petition for certiorari UNDER RULE 65, section 4. Section 4. Docket and other lawful fees. — Upon the filing of the petition, the petitioner shall pay to the clerk of court the docket and other lawful fees and deposit the amount of P500.00 for costs. (n)
Section 5. Form and contents of petition. — The petition shall be verified and filed in eighteen (18) legible copies. The petition shall name the aggrieved party as petitioner and shall join as respondents the Commission concerned and the person or persons interested in sustaining the judgment, final order or resolution a quo. The petition shall state the facts with certainty, present clearly the issues involved, set forth the grounds and brief arguments relied upon for review, and pray for judgment annulling or modifying the questioned judgment, final order or resolution. Findings of fact of the Commission supported by substantial evidence shall be final and non-reviewable.
ATTY. CAPELLAN the questions raised are too unsubstantial to warrant further proceedings. (n)
WHEN WILL THE SC ISSUE AN ORDER TO COMMENT ON THE PETITION FOR CERTIORARI? •
If the SC finds the petition for certiorari to be sufficient in form and substance,
•
issue an order to comment within 10 days from notice
WHEN WILL THE SC ORDER THE DISMISSAL OF THE PETITION? 1.
Petition is not sufficient in form and substance
2.
was manifestly for delay
3.
raises questions which are too unsubstantial to warrant further proceedings
The petition shall be accompanied by a clearly legible duplicate original or certified true copy of the judgment, final order or resolution subject thereof, together with certified true copies of such material portions of the record as are referred to therein and other documents relevant and pertinent thereto. The requisite number of copies of the petition shall contain plain copies of all documents attached to the original copy of said petition.
Section 7. Comments of respondents. — The comments of the respondents shall be filed in eighteen (18) legible copies. The original shall be accompanied by certified true copies of such material portions of the record as are referred to therein together with other supporting papers. The requisite number of copies of the comments shall contain plain copies of all documents attached to the original and a copy thereof shall be served on the petitioner.
The petition shall state the specific material dates showing that it was filed within the period fixed herein, and shall contain a sworn certification against forum shopping as provided in the third paragraph of section 3, Rule 46.
No other pleading may be filed by any party unless required or allowed by the Court. (n)
The petition shall further be accompanied by proof of service of a copy thereof on the Commission concerned and on the adverse party, and of the timely payment of docket and other lawful fees.
Section 8. Effect of filing. — The filing of a petition for certiorari shall not stay the execution of the judgment or final order or resolution sought to be reviewed, unless the Supreme Court shall direct otherwise upon such terms as it may deem just. (n)
The failure of petitioner to comply with any of the foregoing requirements shall be sufficient ground for the dismissal of the petition. (n) MAY THE PETITIONER APPLY FOR A RESTRAINING ORDER AND PRELIMINARY INJUNCTION WITH THE SC? SHOULD THE RELEVANT COMMISSION BE JOINED AS A PARTY RESPONDENT? •
WHAT ARE THE CONTENTS OF A PETITION FOR CERTIORARI UNDER RULE 64? •
similar to those required under Sec 3 of Rule 64 (ordinary cases)
Section 6. Order to comment. — If the Supreme Court finds the petition sufficient in form and substance, it shall order the respondents to file their comments on the petition within ten (10) days from notice thereof; otherwise, the Court may dismiss the petition outright. The Court may also dismiss the petition if it was filed manifestly for delay or
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•
YES, the petitioner may apply for restraining order and preliminary injunction with the SC, otherwise the filing of a petition for certiorari shall not stay the execution of the judgment or final order or resolution sought to be reviewed
•
this is similar to section 12 of Rule 43 (Appeal from quasi judicial or Court of Tax Appeals)
YES, being a special civil action, the Commission concerned is joind as a party respondent
Section 9. Submission for decision. — Unless the Court sets the case for oral argument, or requires the parties to submit memoranda, the case shall be deemed submitted for decision upon the filing of the comments on the petition, or of such other pleadings or papers as may be required or allowed, or the expiration of the period to do so. (n)
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ATTY. CAPELLAN affirmative act; and the only effect of a writ of prohibition is to suspend all action, and to prevent any further proceeding in the prohibited direction.
RULE 65: Certiorari, Prohibition and Mandamus JUDICIAL FUNCTION
QUASI-JUDICIAL FUNCTION
Power to determine what the law is and what the legal rights of the parties are, and then undertake to determine these questions and adjudicate upon the rights of the parties
Action or discretion of public administrative officers or bodies, which are required to investigate facts or ascertain the existence of facts, hold hearings, and draw conclusions from them as basis for their official action and to exercise discretion of a judicial nature
CERTIORARI
PROHIBITION
MANDAMUS
is a writ issued by a superior court to an inferior court, board or officer exercising judicial or quasijudicial functions whereby, the record of a particular case is ordered to be elevated for review and correction in matters of law
A legal remedy that prevents the unlawful and oppressive exercise of legal authority and provides for a fair and orderly administration of justice
command employed to compel the performance, when refused, of a ministerial duty, his being its chief use, and not a discretionary duty
directed against proceedings that are done without or in excess of jurisdiction, or with grave abuse of discretion, there being no appeal or other plain, speedy and adequate remedy in the ordinary course of law
available to compel action, when refused, in matters involving judgment and discretion, but not to direct the exercise of judgment or discretion in a particular way or the retraction or reversal of an action already taken in the exercise of either
WRIT OF CERTIORARI → prerogative write, never demandable as a matter of right, never issued except in the exercise of judicial discretion
WRIT OF PROHIBITION → one which commands the person to whom it is directed not to do something which, by suggestion of the relator, the court is informed he is about to do. If the thing be already done, it is manifest the writ of prohibition cannot undo it, for that would require and
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•
tribunal, board or officer, exercises judicial or quasijudicial functions
•
tribunal, board or officer, exercises judicial or quasijudicial functions
•
tribunal,board or officer has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction
•
tribunal,board or officer has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction
no appeal, or any plain, speedy and adequate remedy in the ordinary course of law.
•
•
To annul proceeding
or
nullify
Corrective remedy
no appeal, or any plain, speedy and adequate remedy in the ordinary course of law.
•
tribunal, corporation, officer or persons exercises judicial, quasi-judicial or ministerial functions
•
tribunal, corporation, officer or persons has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction,
•
there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law
a To have respondent desist For respondent to: (1) Do from further proceeding the act required; and (2) Pay damages Preventive remedy
or
negative Affirmative remedy
or
positive
Against Entity or person Against Entity or person Entity or person exercising exercising judicial or quasi- exercising judicial or quasi- ministerial function judicial function judicial function or ministerial function
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ATTY. CAPELLAN
It covers discretionary
It covers discretionary and It covers ministerial acts ministerial acts
GROUNDS:
GROUNDS:
GROUNDS:
Entity or person is alleged to have acted: (1) Without jurisdiction; (2) In excess of jurisdiction; or (3) With grave abuse of discretion amounting to lack or excess of jurisdiction
Entity or person is alleged to have acted: (1) Without jurisdiction; (2) In excess of jurisdiction; or (3) With grave abuse of discretion amounting to lack or excess of jurisdiction
Entity or person is alleged to have unlawfully: (1) Neglected a ministerial duty; or (2) Excluded another from a right or office
(1) There must be a controversy
(1) There must be a clear legal right or duty
REQUISITES (1) There must be a controversy (2) Respondent is exercising judicial or quasi-judicial functions (3)
Respondent acted without or in excess of its jurisdiction or acted with grave abuse of discretion
(4) There must be no appeal or other plain , speedy and adequate remedy
(2) Respondent is exercising judicial, quasi-judicial, or ministerial functions (3) Respondent acted without or in excess of its jurisdiction or acted with grave abuse of discretion amounting to lack of jurisdiction (4) There must be no appeal or other plain , speedy and adequate remedy
(2) (2) The act to be performed must be practical (within the powers of the respondent to perform such that if the writ was issued, he can comply with it, or else the essence will be defeated) (3) (3) Respondent must be exercising a ministerial duty (a duty which is absolute, imperative and merely involves its execution) (4) (4) The duty or act to be performed must be existing (a correlative right will be denied if not performed by the respondents) (5) (5) There is no other plain ,
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speedy adequate in the ord
and remedy
Section 1. Petition for certiorari. — When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46. (1a)
CERTIORARI •
is a writ issued by a superior court to an inferior court, board or officer exercising judicial or quasi-judicial functions whereby, the record of a particular case is ordered to be elevated for review and correction in matters of law
•
WRIT OF CERTIORARI → prerogative write, never demandable as a matter of right, never issued except in the exercise of judicial discretion
REQUISITES FOR CERTIORARI 1.
tribunal, board or officer, exercises judicial or quasi-judicial functions
2.
tribunal,board or officer has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction
3.
no appeal, or any plain, speedy and adequate remedy in the ordinary course of law.
JUDICIAL FUNCTIONS OR QUASI-JUDICIAL ACTS? •
Judicial functions presupposes the use of mental processes in the determination of law or fact, and at times involves discretion as to how the power should be used
•
exercise of judicial functions determine what the law is and what the legal rights of the parties are, and then undertake to determine these questions and
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SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
ATTY. CAPELLAN
adjudicate upon the rights of the parties
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NO.
WITHOUT JURISDICTION
IN EXCESS OF JURISDICTION
GRAVE ABUSE OF DISCRETION
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the filing of a petition for certiorari is construed as abandonment of appeal. There is incompatibility between the 2 remedies.
Jurisdiction of the subject matter of a particular case is conferred by law upon a court to take cognizance of cases. When such law is not present to confer him with authority to decide on the case then he acted without his jurisdiction
Although the court has acquired jurisdiction over the subject matter and the particular case has been submitted properly, it will overstep its jurisdiction if it renders a judgment which it has no power under the law to render
When it is performed in a CAPRICIOUS or WHIMSICAL exercise of judgment which is equivalent to lack of jurisdiction.
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HOWEVER, if the appeal is from the decision in the main case, and the certiorari petition is directed against the order denying the motion for new trial, the 2 remedies can be availed of.
The abuse must be so patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform a a duty enjoined by the law
MOTION FOR RECONSIDERATION NECESSARY? •
GENERAL RULE: a petition for certiorari will not be entertained unless the respondent , through a motion for reconsideration, a chance to correct the error imputed to him
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EXCEPTIONS: ◦
issue raised is question of law
◦
public interest is involved
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urgency o the case, when further delay would prejudice the interest of the petitioner
WHEN IS THERE NO APPEAL? 1.
Appeal does not lie and
◦
2.
the right to appeal having been lost with or without the appellant's negligence, the court has not jurisdiction to issue the order or decision which is the subject matter of the remedy.
question of jurisdiction was already squarely raised, submitted to and met and decided by the lower court
◦
order is a patent nullity
Appeal is lost → appeal has expired, certiorari lies to set aside a judgment which is null and void for lack or excess of jurisdiction
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order of the court is peremptory with a tone of finality
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execution has been ordered and relief is urgent
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SPECIAL CIVIL ACTION FOR CERTIORARI
APPEAL BY CERTIORARI
Only question raised is whether or not the Only review questions or errors of law respondent has acted without or in excess decided or committed by the lower court of jurisdiction or with grave abuse of discretion appeal brings up for review errors of judgment committed by a court with writ of certiorari issues for the correction jurisdiction over the subject of the suit and of errors of jurisdiction only for grave the person of the parties or any such error abuse of discretion amount to lack or committed by the court in the exercise of excess of jurisdiction. its jurisdiction amounting to nothing more than an error of judgment Writ of certiorari serves to keep an inferior court within bounds of its jurisdiction. SPECIAL CIVIL ACTION FOR CERTIORARI BE A SUBSTITUTE FOR APPEAL?
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Section 2. Petition for prohibition. — When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require. The petition shall likewise be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46. (2a)
PROHIBITION?
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SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
ATTY. CAPELLAN
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A legal remedy that prevents the unlawful and oppressive exercise of legal authority and provides for a fair and orderly administration of justice
•
directed against proceedings that are done without or in excess of jurisdiction, or with grave abuse of discretion, there being no appeal or other plain, speedy and adequate remedy in the ordinary course of law
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WRIT OF PROHIBITION → one which commands the person to whom it is MAY THE QUESTION OF CONSTITUTIONALITY BE RAISED IN PROHIBITION directed not to do something which, by suggestion of the relator, the court is PROCEEDINGS? informed he is about to do. If the thing be already done, it is manifest the writ of • It depends: prohibition cannot undo it, for that would require and affirmative act; and the only effect of a writ of prohibition is to suspend all action, and to prevent any ◦ general rule : prohibition will not lie where the inferior court has further proceeding in the prohibited direction. jurisdiction to decide on the constitutionality PURPOSE → prevent inferior courts, corporations, boards or persons from ◦ except: if the inferior court derives its jurisdiction from an unconstitutional usurping or exercising a jurisdiction or power with which they have not been statute, then prohibition will lie. vested by the law
•
REQUISITES 1.
tribunal, corporation, officer or persons exercises judicial, quasi-judicial or ministerial functions
2.
tribunal, corporation, officer or persons has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction,
3.
there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law CERTIORARI
PROHIBITION
Corrective remedy used for the re- Preventive remedy issuing to restrain examination of some action of an inferior future action, and is directed to the court tribunal, and is directed to the cause or itself proceeding in the lower court and not to the court itself WRIT : May properly issue to nullify only WRIT: may be directed against the acts judicial or quasi-judicial acts either judicial, quasi-judicial or ministerial Proper remedy to annul or modify an order alleged to have been entered by the CFI in excess of its jurisdiction or with grave abuse of discretion in ordering the execution of the judgment pending appeal and fixing the amount of the supersedeas bond to stay execution
PROHIBITION
INJUNCTION
Directed to the court itself, commanding it Against proceedings at law is directed only to cease from the exercise of a jurisdiction to the parties litigant, without any manner to which it has no legal claim interfering with the court
Section 3. Petition for mandamus. — When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent. The petition shall also contain a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46. (3a)
MANDAMUS •
command employed to compel the performance, when refused, of a ministerial duty, his being its chief use, and not a discretionary duty
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available to compel action, when refused, in matters involving judgment and discretion, but not to direct the exercise of judgment or discretion in a particular way or the retraction or reversal of an action already taken in the exercise of either
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EXCEPTION: in the performance of an official duty or act involving discretion, the corresponding official can only be directed by mandamus to act, but not to act one way or the other
DISCRETION •
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part of the judicial function which decides questions arising in the trial of a
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SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
ATTY. CAPELLAN
cause, according to the particular circumstances of each case, and as to which the judgment of the court is uncontrolled by fixed rules of law. •
The power exercised by the courts to determine questions to which no strict law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court.
MINISTERIAL DUTY •
to which nothing is left to the discretion of the person who must perform it
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it is a precise act accurately market out, enjoined upon particular officers for a particular purpose
REQUISITES 1.
when any tribunal, corporation, board, officer, person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or stration
2.
when any tribunal, corporation, board, officer, person unlawfully excludes another person from the use and enjoyment of a right or office to which the other is entitled and
3.
there is not other plain, speedy and adequate remedy in the ordinary course of law.
WILL MANDAMUS ISSUE WHEN ADMINISTRATIVE REMEDIES ARE STILL AVAILABLE? •
NO
•
EXCEPTIONS WHEN RULE OF EXHAUSTION CANNOT BE INVOKED 1.
if party is in estoppel
2.
pure questions of law are raised
PROHIBITION
MANDAMUS
Has for its object that of preventing an inferior court or tribunal from executing or continuing to execute an act in excess of its jurisdiction, when there is no other plain, speedy and adequate remedy in the ordinary course of law
Has for its object to compel an inferior tribunal to comply with a function which the law specially prescribes as a duty resulting from its office, when there is no other plain, speedy, adequate remedy
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INJUNCTION
MANDAMUS
Preventive remedy conservative remedy
Remedial remedy active remedy
Prevent future injury
Redress past grievances
Preserves matters in status quo
change the status of affairs and to substitute action for inactivity
* two are divergent Section 4. When and where petition filed. — The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of said motion. The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, unless otherwise provided by law or these Rules, the petition shall be filed in and cognizable only by the Court of Appeals. No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding fifteen (15) days. (4a) (Bar Matter No. 803, 21 July 1998; A.M. No. 00-2-03-SC)
WHERE CAN IT BE FILED? •
SC
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CA
•
◦
BP129 granted the CA original jurisdiction to issue writs under Rule 45 and auxiliary writes and processes, whether or not in aid of its jurisdictions
◦
CA has exclusive appellate jurisdiction over quasi-judicial agencies under Rule 43, petitions for writs of certiorari, prohibition or mandamus against them should now be filed only with the CA, unless otherwise provided by the law or these rules
Sandiganbayan ◦
PD 1606 as amended by RA 8249 granted Sandiganbayan original jurisdiction over petitions for the issuance of writes under Rule 45 in aid of its appellate jurisdiction and over petitioner of similar nature, including quo warranto, arising or that may arise in cases file under EO 1,2,14,14-A issued
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SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS in 1986 PROVDED that it is not exclusive of the SC •
RTC
ATTY. CAPELLAN the petition. Thereafter, the court may require the filing of a reply and such other responsive or other pleadings as it may deem necessary and proper. (6a)
WHAT IS NEEDED TO PERFECT AN A PPEAL FROM A COMPLAINT? •
File a notice of appeal and a record on appeal is not necessary.
Section 5. Respondents and costs in certain cases. — When the petition filed relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person, the petitioner shall join, as private respondent or respondents with such public respondent or respondents, the person or persons interested in sustaining the proceedings in the court; and it shall be the duty of such private respondents to appear and defend, both in his or their own behalf and in behalf of the public respondent or respondents affected by the proceedings, and the costs awarded in such proceedings in favor of the petitioner shall be against the private respondents only, and not against the judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person impleaded as public respondent or respondents. Unless otherwise specifically directed by the court where the petition is pending, the public respondents shall not appear in or file an answer or comment to the petition or any pleading therein. If the case is elevated to a higher court by either party, the public respondents shall be included therein as nominal parties. However, unless otherwise specifically directed by the court, they shall not appear or participate in the proceedings therein. (5a)
•
•
•
The court can dismiss it if its not sufficient in form and substance
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order requiring respondents to comment = equivalent to SUMMONS
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court acquires jurisdiction over the person of the respondent by SERVICE ON HIM of its ORDER or RESOLUTION indicating its initial action on the petition or by his VOLUNTARY SUBMISSION to such jurisdiction
•
all cases originally filed in the CA or SC: ◦
person filing: PETITIONER
◦
person opposing: RESPONDENT
Section 7. Expediting proceedings; injunctive relief. — The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the course of the principal case unless a temporary restraining order or a writ of preliminary injunction has been issued against the public respondent from further proceeding in the case. (7a)
In special civil actions, NOT in appeals, the court, judge, quasi-judicial agency, MAY THE WRIT OF INJUNCTION ISSUED IN A SPECIAL CIVIL ACTION RESTRAIN NOT ONLY THE ISSUANCE OF WRIT OF EXECUTION BUT ALSO ANY ACTION ON etc should be joined as public respondent, although it is the duty of the private APPEAL? respondents to appear and defend them • YES. the judge who was made a public respondent cannot take active part in appellate proceedings relation to his official actuation EXCEPT if expressly ordered by the Section 8. Proceedings after comment is filed. — After the comment or other pleadings court required by the court are filed, or the time for the filing thereof has expired, the court the joinder of persons interest in sustaining the proceedings with the court or judge mandatory? → joinder as parties defendant in sustaining the proceedings is mandatory. The non-inclusion of the person interested in sustaining the proceedings renders the petition defective.
Section 6. Order to comment. — If the petition is sufficient in form and substance to justify such process, the court shall issue an order requiring the respondent or respondents to comment on the petition within ten (10) days from receipt of a copy thereof. Such order shall be served on the respondents in such manner as the court may direct together with a copy of the petition and any annexes thereto. In petitions for certiorari before the Supreme Court and the Court of Appeals, the provisions of section 2, Rule 56, shall be observed. Before giving due course thereto, the court may require the respondents to file their comment to, and not a motion to dismiss,
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•
may hear the case or require the parties to submit memoranda. If after such hearing or submission of memoranda or the expiration of the period for the filing thereof the court finds that the allegations of the petition are true, it shall render judgment for the relief prayed for or to which the petitioner is entitled. The court, however, may dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. (8a)
MAY THE COURT DISMISS THE PETITIONER WITHOUT A HEARING OR THE FILING OF A MEMORANDA? •
YES. The court may deny the writ if from the answer or comment, it finds that
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SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS petition should be dismissed in the interest of justice •
The ALLEGATIONS of the petition, not the title.
Section 9. Service and enforcement of order or judgment. — A certified copy of the judgment rendered in accordance with the last preceding section shall be served upon the court, quasi-judicial agency, tribunal, corporation, board, officer or person concerned in such manner as the court may direct, and disobedience thereto shall be punished as contempt. An execution may issue for any damages or costs awarded in accordance with section 1 of Rule 39. (9a) HOW ARE JUDGMENTS IN SPECIAL CIVIL ACTION EXECUTED? • •
In the same manner as in the execution of special judgments under Section 11 of Rule 39 judgment for damages that may be awarded in mandamus Is executed in accordance with Section 1 and 9 of Rule 39
RULE 66: Quo Warranto Section 1. Action by Government against individuals. — An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against: (a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; (b) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; or (c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. (1a)
QUO WARRANTO
14
•
dismissal is also proper if before answer or comment is filed, the attention of the court is called to the fact that from its own allegations, the petitioner appears to be without merit.
WHAT DETERMINE THE NATURE OF A SPECIAL CIVIL ACTION? •
ATTY. CAPELLAN
•
is a latin phrase meaning BY WHAT AUTHORITY
•
it is a remedy or proceeding by which the sovereign or state determines the legality of a claim which a party asserts to the use or exercise of an office or franchise and ousts the holder from its enjoyment, if the claim is not well founded, or if the right to enjoy the privilege has been forfeited or lost.
Demand by the state upon some individual or corporation to show by what right they exercise some franchise or privilege appertaining to the state which, according to the Constitution and Laws of the land, they cannot legally exercise except by virtue of grant of authority from the state
WHAT DOES THIS RULE REFER? •
Against persons who usurp, intrude into or unlawfully hold a public office, position or franchise
•
against public officers who forfeit their office
•
associations which act as corporations without being legally incorporated or authorized.
HOW IS IT COMMENCED •
VERIFIED PETITION brought in the name of the Republic of the Philippines MANDAMUS
QUO WARRANTO
Proper remedy when the respondent Remedy if the respondent claims any right unlawfully excludes the petitioner from an to the office and usurps, intrudes into, or office to which the latter is entitled without unlawfully holds it against the petitioner usurping, intruding into, or unlawfully holding the office Against the person who excludes the Against the the person who actually holds petitioner from the office in question the said office. QUO WARRANTO UNDER THE OMNIBUS ELECTION CODE? Sec. 253. Petition for quo warranto. - Any voter contesting the election of any Member of the Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the proclamation of the results of the election. Any voter contesting the election of any municipal or barangay officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the regional trial court or metropolitan or municipal trial court, respectively, within ten days after the proclamation of the results of the election. QUO WARRANTO – OFFICES FILLED BY ELECTION
QUO WARRANTO – OFFICES FILLED BY APPOINTMENT
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SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS What is determined is the eligibility of the What is determined is the legality of the candidate elect appointment Person elected is ineligible → the court Court determines who has been legally cannot declare that candidate occupying appointed and can and ought to declare the 2nd place has been elected even if he who is entitled to occupy the office were eligible
ATTY. CAPELLAN Section 3. When Solicitor General or public prosecutor may commence action with permission of court. — The Solicitor 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 request and upon the relation of another person; but in such case the officer bringing it may first require an indemnity for the expenses and costs of the action in an amount approved by and to be deposited in the court by the person at whose request and upon whose relation the same is brought. (4a)
ABANDONMENT OF JUDICIAL OFFICE = BAR QUO WARRANTO? •
YES.
•
Acceptance of other public offices – incompatible with judicial functions operated as an abandonment of the position → quo warranto is dismissed
•
Acceptance of temporary positions → not operate as abandonment of the old positions → quo warrant was granted
DOES QUO WARRANTO LIE TO REMOVE DULY APPOINTED OFFICER WHO HAS DULY QUALIFIED AND ENTERED UPON THE PERFORMANCE OF DUTIES? •
NO. when the appointing officer has once acted and the appointee has accepted the office and done what is required of him upon its acceptance. His title to the office becomes complete
•
His removal can only be done in a regular way and not through extra ordinary legal remedy of quo warranto
QUO WARRANTO LIE IN FAVOR OF AN OFFICER LEGALLY REMOVED AND REPLACED? •
YES.
Section 2. When Solicitor General or public prosecutor must commence action. — The Solicitor 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 specified in the preceding section can be established by proof, must commence such action. (3a)
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Officer bring the action may first required the person who requests and upon whose relation the same is brought to DEPOSIT IN COURT AN AMOUNT APPROVED THEREBY
•
bond serves as an indemnity for the expenses and cost of the action
Section 4. When hearing had on application for permission to commence action. — Upon application for permission to commence such action in accordance with the next preceding section, the court shall direct that notice be given to the respondent so that he may be heard in opposition thereto; and if permission is granted, the court shall issue an order to that effect, copies of which shall be served on all interested parties, and the petition shall then be filed within the period ordered by the court. (5a)
•
Application for permission to commence is filed, respondent should be notified
•
respondent is notified so that he may be heard
•
PERMISSION GRANTED: all interested parties shall be served with copies of the order of the court to that effect.
YES
DOES PUBLIC OFFICE INCLUDE A LEGISLATIVE OFFICE? •
•
•
SOLGEN or PUBLIC PROSECUTOR determines the efficiency of evidence to warrant the commencement of action
•
this involves exercise of discretion
Section 5. When an individual may commence such an action. — A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another may bring an action therefor in his own name. (6)
•
If the individual has no right, the action may be dismissed because there is no legal ground upon which it may be proceed.
Section 6. Parties and contents of petition against usurpation. — When the action is against a person for usurping a public office, position or franchise, the petition shall set forth the name of the person who claim to be entitled thereto, if any, with an averment of his right to the same and that the respondent is unlawfully in possession thereof. All persons who claim to be entitled to the public office, position or franchise may be made parties, and their respective rights to such public office, position or franchise determined, in the same action. (7a)
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SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
ATTY. CAPELLAN of the court
Section 7. Venue. — An action under the preceding six sections can be brought only in the Supreme Court, the Court of Appeals, or in the Regional Trial Court exercising jurisdiction over the territorial area where the respondent or any of the respondents resides, but when the Solicitor General commences the action, it may be brought in a Regional Trial Court in the City of Manila, in the Court of Appeals, or in the Supreme Court. (8a)
IF PLAINTIFF'S RIGHT NOT PROVEN, MAY THE COURT PASS UPON THE RIGHT OF THE DEFENDANT? •
NO, unless the action is brought by the SOLGEN or public prosecutor
•
complaint is dismissed, it is unnecessary to pass upon the right of the defendant who has a perfect right to the undisturbed possession of his office.
•
EXCEPT: if the solgen or public prosecutor could and even should bring such an action against the person usurping the office in accordance with Section 2 and 3 Rule 66.
WHICH COURT HAVE JURISDICTION OVER QUO WARRANT? •
SC has original jurisdiction
•
CA has original and concurrent jurisdiction with the SC
•
RTC which has territorial jurisdiction over the area where the respondent resides also has original and concurrent jurisdiction with the CA and SC. ◦
•
If the SOLGEN commences the action → brought in the RTC in the cirt of manila or in the CA or in the SC
Sandiganbayan has exclusive and original jurisdiction in quo warranto arising or that may arise in cases filed under EO 1, 2, 14, 14-A, but this must be in aid of its appellate jurisdiction and is not exclusive to the SC
Section 8. Period for pleadings and proceedings may be reduced; action given precedence. — The court may reduce the period provided by these Rules for filing pleadings and for all other proceedings in the action in order to secure the most expeditious determination of the matters involved therein consistent with the rights of the parties. Such action may be given precedence over any other civil matter pending in the court. (9a)
Section 9. Judgment where usurpation found. — When the respondent is found guilty of usurping into, intruding into, or unlawfully holding or exercising a public office, position or franchise, judgment shall be rendered that such respondent be ousted and altogether excluded therefrom, and that the petitioner or relator, as the case may be, recover his costs. Such further judgment may be rendered determining the respective rights in and to the public office, position or franchise of all the parties to the action as justice requires. (10a)
REALTOR? •
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Section 10. Rights of persons adjudged entitled to public office; delivery of books and papers; damages. — If judgment be rendered in favor of the person averred in the complaint to be entitled to the public office he may, after taking the oath of office and executing any official bond required by law, take upon himself the execution of the office, and may immediately thereafter demand of the respondent all the books and papers in the respondent's custody or control appertaining to the office to which the judgment relates. If the respondent refuses or neglects to deliver any book or paper pursuant to such demand, he may be punished for contempt as having disobeyed a lawful order of the court. The person adjudged entitled to the office may also bring action against the respondent to recover the damages sustained by such person by reason of the usurpation. (15a)
WHAT DAMAGES MAY BE RECOVABLE UNDER THE OMNIBUS ELECTION CODE? •
Actual damages or compensatory damages may be granted in all election cases or in quo warranto proceedings in accordance with law
Section 11. Limitations. — Nothing contained in this Rule shall be construed to authorize an action against a public officer or employee for his ouster from office unless the same be commenced within one (1) year after the cause of such ouster, or the right of the petitioner to hold such office or position, arose, nor to authorize an action for damages in accordance with the provisions of the next preceding section unless the same be commenced within one (1) year after the entry of the judgment establishing the petitioner's right to the office in question. (16a)
PRESCRIPTIVE PERIOD FOR DILING A PETITION FOR QUO WARRANTO AFFECTING TITLE TO PUBLIC OFFICE? •
Petition for quo warranto affecting title to public office must be filed WITHIN 1 YEAR FROM THE DATE THE PETITIONER is ousted from his position
A relator is the person at whose request and upon whose relation the SOLGEN or public PROSECUTOR brings an action for quo warranto wth the permission WHEN DOES THE 1 YEAR PERIOD BEGIN TO RUN?
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS •
2 criteria by reference to which the date from which the period of prescription is to be reckoned ◦
the ouster, unlawful exclusion of the rightful claimant from the office
◦
right of the claimant to hold office
ADMINISTRATIVE REMEDY ABATE THE 1 YEAR PERIOD TO FILE A QUO WARRANTO PROCEEDINGS? •
LACHES, could be applied against petitioner for failing to file an action for quo warranto within 1 year from the time the cause of action arose when the petitioner was not guilty of inaction and it was the continued assurance of the government through its responsible officials who led the petitioner to bide his time and wait for the government to fulfill its commitment
CLAIM FOR BACK SALARIES AND DAMAGES SUBJECT TO THE 1 YESR PERIOD? •
expropriation, describe the real or personal property sought to be expropriated, and join as defendants all persons owning or claiming to own, or occupying, any part thereof or interest therein, showing, so far as practicable, the separate interest of each defendant. If the title to any property sought to be expropriated appears to be in the Republic of the Philippines, although occupied by private individuals, or if the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners, averment to that effect shall be made in the complaint. (1a)
NO,
WHAT IS THE EXCEPTION TO THE GENERAL RULE THAT AN ACTION FOR QUO WARRANTO MUST BE FILED WITHIN 1 YEAR FROM THE TIME THE CAUSE OF ACTION TO SEEK REINSTATEMENT TO PUBLIC OFFICE AROSE? •
ATTY. CAPELLAN
EXPROPRIATION •
is a phrase which refers to the power of a sovereign state to take or to authorize the taking of any property within its jurisdiction for the public use without the owner's consent
•
inherent political right, founded on common necessity and interest, of appropriating the property of individual members of the community to the great necessities of the whole community
•
inherently possessed by the state ◦
YES. It is only incidental to the issue involved and cannot stand by itself
by delegation, it may also be possessed by local governments, other public entities, and public utilities
WHEN SHOULD THE ACTION OF QUO WARRANT BE FILED UDNER THE OMNIBUS WHAT ARE THE CONSTITUTIONAL LIMITATIONS TO THE EXERCISE OF THE ELECTION CODE? POWER OF EMINENT DOMAIN •
Sworn petition for quo warrant must be filed with the COMELEC within 10 days AFTER THE PROCLAMATION OF THE RESULTS OF THE ELECTION
•
however the filing with the COMELEC of a petition to annul or suspend the proclamation of any candidate shall suspend the running of the period within which to file an election protest or quo warranto proceedings.
Section 12. Judgment for costs. — In an action brought in accordance with the provisions of this Rule, the court may render judgment for costs against either the petitioner, the relator, or the respondent, or the person or persons claiming to be a corporation, or may apportion the costs, as justice requires. (17a)
•
◦
•
•
EXPROPRIATION – is the procedure for enforcing said right
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ARTICLE XII- National Economy and Patrimony ◦
• Section 1. The complaint. — The right of eminent domain shall be exercised by the filing of a verified complaint which shall state with certainty the right and purpose of
SECTION 9. Private property shall not be taken for public use without just compensation.
WHAT ARE THE CONSTITUTIONAL PROVISIONS ON EMINENT DOMAIN
RULE 67: Expropriation EMINENT DOMAIN – is the right
SECTION 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.
ARTICLE III- Bill of Rights ◦
•
•
ARTICLE III- Bill of Rights
SECTION 18. The State may, in the interest of national welfare or defense, establish and operate vital industries and, upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the Government.
ARTICLE XIII- Social Justice and Human Rights ◦
Agrarian and Natural Resources Reform SECTION 4. The State shall, by law, undertake an agrarian reform program founded on the right of farmers
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SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS and regular farmworkers, who are landless, to own directly or collectively the lands they till or, in the case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the right of small landowners. The State shall further provide incentives for voluntary land-sharing. •
ARTICLE XVIII-Transitory Provisions ◦
SECTION 22. At the earliest possible time, the Government shall expropriate idle or abandoned agricultural lands as may be defined by law, for distribution to the beneficiaries of the agrarian reform program.
WHAT ARE THE 2 STAGES IN EVERY ACTION OF EXPROPRIATION 1.
determination of the authority of the plaintiff' to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit •
ends with an order, if not of dismissal of the action, of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned, 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 filing of the complaint.
ATTY. CAPELLAN NECCESITY? Only a reasonable or practical necessity NOT ABSOLUTE, such as would combine the greatest benefit to the public with the least inconvenience and expense to the condemning party and property owner consistent with such benfit WHO HAS JURISDICTION? •
It is INCAPABLE OF PECUNIARY ESTIMATION
•
within REGIONAL TRIAL COURT jurisdiction
Section 2. Entry of plaintiff upon depositing value with authorized government depositary. — Upon the filing of the complaint or at any time thereafter and after due notice to the defendant, the plaintiff shall have the right to take or enter upon the possession of the real property involved if he deposits with the authorized government depositary an amount equivalent to the assessed value of the property for purposes of taxation to be held by such bank subject to the orders of the court. Such deposit shall be in money, unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a government bank of the Republic of the Philippines payable on demand to the authorized government depositary. If personal property is involved, its value shall be provisionally ascertained and the amount to be deposited shall be promptly fixed by the court. After such deposit is made the court shall order the sheriff or other proper officer to forthwith place the plaintiff in possession of the property involved and promptly submit a report thereof to the court with service of copies to the parties. (2a)
2.
determination by the court of the just and compensation for the property sought DETERMINE ASSESSED VAUE OF REAL PROPERTY FOR PURPOSES OF THE to be taken. DEPOSIT? • Done with the assistance of not more than 3 commissioners • Indicated in the tax declaration MAY PROPERTY DEVOTED TO PUBLIC USE BE SUBJECT TO EXPROPRIATION • removes the discretion o the court in determining the provisional value of the • NO. if it is open to the public, it is a public use and no part of the ground can be real property taken for other public uses under a general authority. PRIOR HEARING NECESSARY BEFORE IMMEDIATE POSSESSSION CANBE • This immunity extends to the unimproved and unoccupied parts which are held GRANTED THE REPUBLIC OF THE PHILIPPINES? in good faith for future use. • NO such requirement. All that is requires is the notice to the owner of the IS UNLAWFUL DENIAL OF BUILDING PERMIT TANTAMOUNT TO property sought to be condemned and deposit with the PNB of the amount EXPROPRIATION? equivalent to the assessed value of the property •
Yes
WHAT IS AN ESSENTIAL REQUISITE FOR EXPROPRIATION? •
18
NECESSITY for PUBLIC CHARITY must exist for the exercise pf eminent domain is laid down
PURPOSE OF PRELIMINARY DEPOSIT? •
Pre-payment upon the value of the property, if finally expropriated and
•
indemnity against damage in the event that proceedings fail to consummate
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS Section 3. Defenses and objections. — If a defendant has no objection or defense to the action or the taking of his property, he may file and serve a notice of appearance and a manifestation to that effect, specifically designating or identifying the property in which he claims to be interested, within the time stated in the summons. Thereafter, he shall be entitled to notice of all proceedings affecting the same. If a defendant has any objection to the filing of or the allegations in the complaint, or any objection or defense to the taking of his property, he shall serve his answer within the time stated in the summons. The answer shall specifically designate or identify the property in which he claims to have an interest, state the nature and extent of the interest claimed, and adduce all his objections and defenses to the taking of his property. No counterclaim, cross-claim or third-party complaint shall be alleged or allowed in the answer or any subsequent pleading. A defendant waives all defenses and objections not so alleged but the court, in the interest of justice, may permit amendments to the answer to be made not later than ten (10) days from the filing thereof. However, at the trial of the issue of just compensation whether or not a defendant has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award. (n)
PROCEDURE FOR PRESENTING DEFENSES AND OBJECTIONS TO THE TAKING OF PROPERTY? • •
payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint, whichever came first. A final order sustaining the right to expropriate the property may be appealed by any party aggrieved thereby. Such appeal, however, shall not prevent the court from determining the just compensation to be paid. After the rendition of such an order, the plaintiff shall not be permitted to dismiss or discontinue the proceeding except on such terms as the court deems just and equitable. (4a)
NECESSARY HEARING BEFORE THE ORDER OF EXPROPRIATION? •
Yes
MAY THE COURT INQUIRE INTO THE PURPOSE OF THE LEGISLATION GRANTING EXPROPRIATION? •
If legislature, under proper authority, should grant said expropriation for specific purpose = the court would be without jurisdiction to inquire into the purpose of that legislation
•
if legislature, should grant GENERAL AUTHORITY to a municipal to expropriate PRIVATE land for PUBLIC PURPOSES = the courts have ample authority to make inquiry and to hear proof concerning:
If a defendant has no objection or no defense, he may so manifest and he shall be entitled to notice of the proceedings for determining just compensation.
◦
the lands were private and
◦ the purpose was in fact public If he HAS OBJECTION or DEFENSE he shall file an answer containing all his objections and defenses to the taking of his property WHEN IS JUST COMPENSATION DETERMINED?
•
OBJECTIONS OR DEFENSES are OVERRULED? The court shall issue an order of expropriation from which the defendant may appeal
•
also has the right to present evidence on the amount of just compensation
•
NO: (to avoid delay in the proceedings ◦
counterclaim
◦
cross-claim
◦
third party complaint
Section 4. Order of expropriation. — If the objections to and the defenses against the right of the plaintiff to expropriate the property are overruled, or when no party appears to defend as required by this Rule, the court may issue an order of expropriation declaring that the plaintiff has a lawful right to take the property sought to be expropriated, for the public use or purpose described in the complaint, upon the
19
ATTY. CAPELLAN
•
•
Determined: WHICHEVER COMES FIRST ◦
as of the date of the taking of the property or
◦
the filing of the complaint,
VALUE OF THE PROPERTY: fixed as of the date of the proceedings, and with reference to the loss the owner sustains, the condition and situation of the property at the time it is taken should be considered
“TAKING” 1.
the expropriator must enter private property
2.
entrance into private property must be for more than a momentary period
3.
entry into the property should be under warrant or color of legal authority
4.
the property must be devoted to a public use or otherwise informally
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS appropriated or injuriously affected and 5.
•
•
fair and full equivalent for the loss sustained, which is the measure of indemnity, not whatever gain would accrue to the expropriating entity.
the utilization of the property for public use must be in such a way as to oust the owner and deprive him of all beneficial enjoyment of the property MARKET VALUE
WHAT IS THE PERIOD TO APPEAL IN AN ACTION FOR EXPROPRIATION? •
ATTY. CAPELLAN
•
may be fixed at the price which it will bring when it is offered for sale by one who desires but is not obligated to sell it, and is bought by one who is under o necessity of having it
•
the person whose property is thus taken = paid the reasonable market price of their property.
No less than 2 appeals are allowed ◦
from the order of the expropriation and
◦
from the order determining just compensation
appeal from order of an expropriation 30 days
WHO DETERMINES JUST COMEPNSATION?
• Judicial function WHEN MAY A RECORD ON APPEAL, IN LIEU OF THE ORIGINAL RECORD, BE SUBMITTED TO THE APPELLATE COURT? ARTICLE 1250 OF NCC APPLICABLE TO TAKING OF PROPERTY BY THE • When a single complaint is filed against several defendants having individual GOVERNMENT BY WAY OF EXPROPRIATION? and separate interests, and a separate trial is held relative to one of said • NO, applies only to cases where a contract or agreement is involved defendant's after which, final order or judgment is rendered on the merits of the plaintiff's claim against that particular defendant, it is obvious that in the event • value of the currency at the time of the establishment of the obligation shall be of an appeal from that separate judgment, the original record cannot and should the basis of payment, which in cases of expropriation, would be the value of the not be sent up to the appellate tribunal BECAUSE the case will have to go on peso at the time of the taking of the property with regard to the other defendants Section 6. Proceedings by commissioners. — Before entering upon the performance of • in lieu of the original record, a record on appeal, therefore will have to be their duties, the commissioners shall take and subscribe an oath that they will faithfully prepared and transmitted to the appellate court. perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case. Evidence may be introduced by either party before the Section 5. Ascertainment of compensation. — Upon the rendition of the order of commissioners who are authorized to administer oaths on hearings before them, and expropriation, the court shall appoint not more than three (3) competent and the commissioners shall, unless the parties consent to the contrary, after due notice to disinterested persons as commissioners to ascertain and report to the court the just the parties, to attend, view and examine the property sought to be expropriated and its compensation for the property sought to be taken. The order of appointment shall surroundings, and may measure the same, after which either party may, by himself or designate the time and place of the first session of the hearing to be held by the counsel, argue the case. The commissioners shall assess the consequential damages to commissioners and specify the time within which their report shall be submitted to the the property not taken and deduct from such consequential damages the consequential court. benefits to be derived by the owner from the public use or purpose of the property Copies of the order shall be served on the parties. Objections to the appointment of any taken, the operation of its franchise by the corporation or the carrying on of the business of the commissioners shall be filed with the court within ten (10) days from service, and of the corporation or person taking the property. But in no case shall the consequential shall be resolved within thirty (30) days after all the commissioners shall have received benefits assessed exceed the consequential damages assessed, or the owner be deprived of the actual value of his property so taken. (6a) copies of the objections. (5a)
Upon rendition of the order of expropriation, the court shall appoint WHAT IS THE OWNER OF THE EXPROPRIATED PROPERTY ENTITLED TO commissioners to ascertain just compensation EVEN IF appeal is taken from the RECOVER? order of expropriation. • Entitled to recover from the expropriating authority the: JUST COMPENSATION? ◦ fair and full value of the lot → as of the time when possession thereof was actually taken • The equivalent for the value of the property at the time of its taking •
20
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SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS ◦
consequential damages – including attorney's fees
◦
the award is palpably excessive or inadequate
◦
LESS: consequential benefits → if any
◦
award is grossly inadequate or unequal
◦
interest at the legal rate → on the aggregate sum due to the owner from and after the date of the actual taking until payment is made by the government.
PURPOSE OF THE COMMISSIONERS' VIEW AND EXAMINATION OF THE PROPERTY? •
ATTY. CAPELLAN
If the testimony of value and damages is conflicting → the commissioners may resort to their knowledge of the elements which affect the assessment and which were obtained from a view of the premises, in order to determine the relative weight of the conflicting testimony
Section 7. Report by commissioners and judgment thereupon. — The court may order the commissioners to report when any particular portion of the real estate shall have been passed upon by them, and may render judgment upon such partial report, and direct the commissioners to proceed with their work as to subsequent portions of the property sought to be expropriated, and may from time to time so deal with such property. The commissioners shall make a full and accurate report to the court of all their proceedings, and such proceedings shall not be effectual until the court shall have accepted their report and rendered judgment in accordance with their recommendations. Except as otherwise expressly ordered by the court, such report shall be filed within sixty (60) days from the date the commissioners were notified of their appointment, which time may be extended in the discretion of the court. Upon the filing of such report, the clerk of the court shall serve copies thereof on all interested parties, with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire. (7a)
•
in the above cases → it becomes the duty of the court to substitute for the commissioner's award the evidence rejected by the commissioner
Section 8. Action upon commissioners' report. — Upon the expiration of the period of ten (10) days referred to in the preceding section, or even before the expiration of such period but after all the interested parties have filed their objections to the report or their statement of agreement therewith, the court may, after hearing, accept the report and render judgment in accordance therewith, or, for cause shown, it may recommit the same to the commissioners for further report of facts, or it may set aside the report and appoint new commissioners; or it may accept the report in part and reject it in part and it may make such order or render such judgment as shall secure to the plaintiff the property essential to the exercise of his right of expropriation, and to the defendant just compensation for the property so taken. (8a)
WHEN PARTIES AGREE TO THE COMMISSIONERS' REPORT, SHOULD THE COURT CONFIRM IT? •
Parties agree to the commissioner and join in asking the court to confirm it → duty of the court to confirm the report, UNLESS there appears some reason touching the public interest why it should not.
MAY THE COURT INCREASE OR DIMINISH THE COMMISSION'S AMOUNT OF AWARD •
YES, an award which is grossly excessive or generally insufficient can be increased or decreased.
MAY THE COMMISSIONER DISREGARD THE EVIDENCE AND SUBSTITUTE THEIR WHEN MAY THE COURT OVERRULE THE AWARD OF THE COMMISSIONERS IN OPINION AS TO THE VALUE OF THE PROPERTY? WHOLE OR IN PART AND SUBSTITUTE ITS OWN VALUATION OF THE CONDEMNED PROPERTY? • NO WHAT IS THE WEIGHT ACCORDED TO THE COMMISSIONERS APPRAISAL OF PROPERTY •
21
•
the estimated value by the appraisers is to be given GREAT WEIGHT if there is SUBSTANTIAL TESTIMONY TO SUPPORT IT unless:
Considered in 2 ways ◦
one of the procedure under Section 8 Rule 67 and
◦
as to the evidence which must appear in the record in order to justify such action
◦
error is plainly manifest
◦
it is apparent that injustice has been done
when court cannot WITH JUSTICE approve commissioners report, the court is permitted to act upon the report, at its own discretion -
◦
the commissioners have clearly gone astray or adopted erroneous principles
◦
◦
the commissioners acted upon wrong principles, or their award is grossly inadequate
•
when the commissioners refuse to hear competent evidence material to the case, then all the evidence in the case would not be before the court the court could not, with reason, attempt to either approve or change the report, as it stands, for the reason that all the evidence of the case would not
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS have been considered by the commissioners nor have been presented to the court. ▪ ◦
if the commissioner are charged of IMPROPER CONDUCT, FRAUD OR PREJUDICE, and this charge is sustained ▪
◦
REMEDY: to recommit the report of the commissioners for further report of facts
it would be safer to set aside the award thus vitiated and appoint new commissioners who could render an untainted report
ATTY. CAPELLAN •
The title to the land expropriated passes to the plaintiff upon the PAYMENT OF INDEMNITY OR THE COMPENSATION FIXED BY THE JUDGMENT, with legal interest thereon from the taking of the possession of the legal property
Section 11. Entry not delayed by appeal; effect of reversal. — The right of the plaintiff to enter upon the property of the defendant and appropriate the same for public use or purpose shall not be delayed by an appeal from the judgment. But if the appellate court determines that plaintiff has no right of expropriation, judgment shall be rendered ordering the Regional Trial Court to forthwith enforce the restoration to the defendant of the possession of the property, and to determine the damages which the defendant sustained and may recover by reason of the possession taken by the plaintiff. (11a)
when the commissioners have applied illegal principles to the evidence submitted to them; or they have disregarded a clear preponderance of the evidence, or they have used an improper rule of assessment in arriving at the amount of the award, then in such a case, if the evidence be clear and DOES RECEIPT BY DEFENDANT OF COMPENSATION IN FULL BAR HIM FROM convincing, the court should ordinarily be able, by the use of those correct APPEALING? legal principles which govern the case, to determine the proper amount • NO, condemnation proceedings in this jurisdiction are peculiar in that the without returning the report to the commissioners plaintiff may execute its judgments as soon as it is obtained ▪
it becomes the duty of the court to render final order and judgment in which the proper reward is made and end litigation between the parties.
Section 9. Uncertain ownership; conflicting claims. — If the ownership of the property taken is uncertain, or there are conflicting claims to any part thereof, the court may order any sum or sums awarded as compensation for the property to be paid to the court for the benefit of the person adjudged in the same proceeding to be entitled thereto. But the judgment shall require the payment of the sum or sums awarded to either the defendant or the court before the plaintiff can enter upon the property, or retain it for the public use or purpose if entry has already been made. (9a)
Section 10. Rights of plaintiff after judgment and payment. — Upon payment by the plaintiff to the defendant of the compensation fixed by the judgment, with legal interest thereon from the taking of the possession of the property, or after tender to him of the amount so fixed and payment of the costs, the plaintiff shall have the right to enter upon the property expropriated and to appropriate it for the public use or purpose defined in the judgment, or to retain it should he have taken immediate possession thereof under the provisions of section 2 hereof. If the defendant and his counsel absent themselves from the court, or decline to receive the amount tendered, the same shall be ordered to be deposited in court and such deposit shall have the same effect as actual payment thereof to the defendant or the person ultimately adjudged entitled thereto. (10a)
WHEN DOES TITLE TO EXPROPRIATED LAND PASS TO THE PLAINTIFF?
•
acceptance by the landowner of the money awarded by the judgment of the court is merely the consideration for the privilege accorded to the plaintiff to take the property from the owner before the final determination of the expropriation action.
•
Receipt by defendant of compensation in full does not strip him of his right to appeal.
WHAT SHOULD THE COURT CONSIDER IN DETERMINING THE AMOUNT OF DAMAGES THAT THE DEFENDANT MAY RECOVER IN CASE OF A JUDGMENT THAT PLAINTIFF HAS NO RIGHT OF EXPROPRATION? 1.
Loss resulting from the dispossession of the land
2.
loss resulting from the deprivation of the use and occupation of the land
3.
the expenses incurred during the pendency of the action, including attorney's fees
4.
the destruction of buildings, canals and growing crops at the time of the occupation of the land by the plaintiff
5.
all of the damages of whatever kind or character which the defendants may be able to prove and which have been occasioned by virtue of the institution of the action
HOW MAY THE DAMAGES SUSTAINED BY THE DEFENDANT FOR THE TAKING OF HIS PROPERTY BE RECOVERED? •
Should be recovered in the same action for expropriation
HOW ABOUT DAMAGES CAUSE BEFORE THE COMMENCEMENT OF THE SUIT FOR
22
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SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS CONDEMNATION – HOW MAY THEY BE RECOVERED? •
All claims for compensation based on damages caused before the commencement of the suit for condemnation may be included in the condemnation proceedings themselves. Otherwise the filing of separate suits for said past damages would lead to multiplicity of suits
Section 12. Costs, by whom paid. — The fees of the commissioners shall be taxed as a part of the costs of the proceedings. All costs, except those of rival claimants litigating their claims, shall be paid by the plaintiff, unless an appeal is taken by the owner of the property and the judgment is affirmed, in which event the costs of the appeal shall be paid by the owner. (12a)
Section 13. Recording judgment, and its effect. — The judgment entered in expropriation proceedings shall state definitely, by an adequate description, the particular property or interest therein expropriated, and the nature of the public use or purpose for which it is expropriated. When real estate is expropriated, a certified copy of such judgment shall be recorded in the registry of deeds of the place in which the property is situated, and its effect shall be to vest in the plaintiff the title to the real estate so described for such public use or purpose. (13a)
WHEN PRIVATE LAND IS EXPROPRIATED FOR A PARTICULAR USE AND IS ABANDONED, DOES THE LAND RETURN TO ITS FORMER OWNER? •
Depends:
such minor or person judicially declared to be incompetent, which such minor or person judicially declared to be incompetent could do in such proceedings if he were of age or competent. (14a)
Chapter 3. Effect of Parental Authority Upon the Persons of the Children Art. 220. The parents and those exercising parental authority shall have with the respect to their unemancipated children on wards the following rights and duties: •(1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means; (2) To give them love and affection, advice and counsel, companionship and understanding; (3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship; (4) To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals; (5) To represent them in all matters affecting their interests; (6) To demand from them respect and obedience; (7) To impose discipline on them as may be required under the circumstances; and (8) To perform such other duties as are imposed by law upon parents and guardians. (316a)
◦
acquired for public use in FEE SIMPLE UNCONDITIONALLY → former owner retains no right in the land, and the public use may be abandoned, or the land may be devoted to a different use
◦
expropriated for a PARTICULAR PURPOSE, with the CONDITION THAT Art. 222. The courts may appoint a guardian of the child's property or a guardian ad WHEN THE PURPOSE IS ENDED OR ABANDONED the property shall litem when the best interests of the child so requires. (317) return to its former owner → when the purpose is terminated or abandoned, Chapter 4. Effect of Parental Authority Upon the Property of the Children the former owner re-acquires the property
◦
if the land is expropriated for a PUBLIC STREET and the expropriation is granted upon the CONDITION THAT THE CITY CAN ONLY USE IT FOR PUBLIC STREET → when the city abandons its use as a public street it returns to the former owner UNLESS I some statutory provision to the contrary
Section 14. Power of guardian in such proceedings. — The guardian or guardian ad litem of a minor or of a person judicially declared to be incompetent may, with the approval of the court first had, do and perform on behalf of his ward any act, matter, or thing respecting the expropriation for public use or purpose of property belonging to
23
ATTY. CAPELLAN
Art. 225. The father and the mother shall jointly exercise legal guardianship over the property of the unemancipated common child without the necessity of a court appointment. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary. Where the market value of the property or the annual income of the child exceeds P50,000, the parent concerned shall be required to furnish a bond in such amount as the court may determine, but not less than ten per centum (10%) of the value of the property or annual income, to guarantee the performance of the obligations prescribed for general guardians.
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SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
ATTY. CAPELLAN
A verified petition for approval of the bond shall be filed in the proper court of the place where the child resides, or, if the child resides in a foreign country, in the proper court of the place where the property or any part thereof is situated.
purchaser to recover any unpaid balance of the price. Any agreement to the contrary shall be void. (1454-Aa)
The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the performance of the obligations referred to in the second paragraph of this Article shall be heard and resolved.
Art. 1485. The preceding article shall be applied to contracts purporting to be leases of personal property with option to buy, when the lessor has deprived the lessee of the possession or enjoyment of the thing. (1454-A-a)
The ordinary rules on guardianship shall be merely suppletory except when the child is under substitute parental authority, or the guardian is a stranger, or a parent has remarried, in which case the ordinary rules on guardianship shall apply. (320a)
RULE 68: Foreclosure of Real Estate Mortgage Section 1. Complaint in action for foreclosure. — In an action for the foreclosure of a mortgage or other encumbrance upon real estate, the complaint shall set forth the date and due execution of the mortgage; its assignments, if any; the names and residences of the mortgagor and the mortgagee; a description of the mortgaged property; a statement of the date of the note or other documentary evidence of the obligation secured by the mortgage, the amount claimed to be unpaid thereon; and the names and residences of all persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage, all of whom shall be made defendants in the action. (1a)
•
Now LIMITED to a judicial foreclosure of real estate mortgage
•
However it may be applied to a judicial foreclosure of chattel mortgage, subject to the provisions of the chattel mortgage and Articles 1484, 1485, 1486 of the NCC
Art. 1486. In the case referred to in two preceding articles, a stipulation that the installments or rents paid shall not be returned to the vendee or lessee shall be valid insofar as the same may not be unconscionable under the circumstances. (n)
•
24
◦
Judicial
◦
Extra-judicial – in accordance with Act No. 3135 as amended by Act No. 4118 Inside Metro Manila
MTC
Outside Metro Manila
If the assessed value of the If the assessed value of the mortgaged mortgaged real estate is NOT more real estate is NOT more than than P20,000.00 P50,000.00 The amount of the mortgage debt is The amount of the mortgage debt is not more than P300,000 not more than P400,000
RTC
Art. 1484. In a contract of sale of personal property the price of which is payable in installments, the vendor may exercise any of the following remedies: (1) Exact fulfillment of the obligation, should the vendee fail to pay;
Modes of foreclosure of real estate mortgage
If the assessed value of the If the assessed value of the mortgaged mortgaged real estate EXCEEDS real estate EXCEEDS P50,000 P20,000 The amount of the mortgage debt The amount of the mortgage debt EXCEEDS more than P400,000 EXCEEDS more than P300,000
MODES OF FORECLOSURE OF CHATTEL MORTGAGE
(2) Cancel the sale, should the vendee's failure to pay cover two or more installments;
•
(3) Foreclose the chattel mortgage on the thing sold, if one has been constituted, should the vendee's failure to pay cover two or more installments. In this case, he shall have no further action against the
•
JUDICIAL – if the mortgage refuses to surrender possession of the mortgaged chattel, the creditor must institute either an action to effect a judicial foreclosure direction or action of REPLEVIN to secure possession as a preliminary to the sale contemplated in Section14 of Act No 1508 EXTRA-JUDICIAL – in accordance with Section 14, Act No. 1508
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ATTY. CAPELLAN
• Sec. 14. Sale of property at public auction; Officer's return; Fees; Disposition of proceeds. — The mortgagee, his executor, administrator, or assign, may, after thirty days from the time of condition broken, cause the mortgaged property, or any part thereof, to be sold at public auction by a public officer at a public place in the municipality where the mortgagor resides, or where the property is situated, provided at least ten days' notice of the time, place, and purpose of such sale has been posted at two or more public places in such municipality, and the mortgagee, his executor, administrator, or assign, shall notify the mortgagor or person holding under him and the persons holding subsequent mortgages of the time and place of sale, either by notice in writing directed to him or left at his abode, if within the municipality, or sent by mail if he does not reside in such municipality, at least ten days previous to the sale. The officer making the sale shall, within thirty days thereafter, make in writing a return of his doings and file the same in the office of the register of deeds where the mortgage is recorded, and the register of deeds shall record the same. The fees of the officer for selling the property shall be the same as in the case of sale on execution as provided in Act Numbered One hundred and ninety, 4 and the amendments thereto, and the fees of the register of deeds for registering the officer's return shall be taxed as a part of the costs of sale, which the officer shall pay to the register of deeds. The return shall particularly describe the articles sold, and state the amount received for each article, and shall operate as a discharge of the lien thereon created by the mortgage. The proceeds of such sale shall be applied to the payment, first, of the costs and expenses of keeping and sale, and then to the payment of the demand or obligation secured by such mortgage, and the residue shall be paid to persons holding subsequent mortgages in their order, and the balance, after paying the mortgages, shall be paid to the mortgagor or person holding under him on demand. If the sale includes any "large cattle," a certificate of transfer as required by section sixteen of Act Numbered Eleven hundred and forty-seven 5 shall be issued by the treasurer of the municipality where the sale was held to the purchaser thereof. MAY THE CREDITOR APPROPRIATE THE MORTGAGED PROPERTY?
25
NO, the creditor cannot appropriate the things given by way of pledge or mortgage, or dispose of them
•
any stipulation to the contrary is null and void
WHAT ARE THE PROVISIONAL REMEDIES AVAILABLE TO THE MORTGAGE CREDITOR IN CASE OF FORECLOSURE
•
PRELIMINARY ATTACHMENT of properties of the debtor not covered by the mortgage
•
RECEIVERSHIP OF MORTGAGED PROPERTY under Section 1[b] of Rule 59
WHAT ARE THE REMEDIES OF THE MORTGAGE CREDITOR AGAINST THE ESTATE OF THE DECEASED
•
Rule 87 Section 7
•
EXTRAJUDICIAL FORECLOSURE is NOT allowed after the death of the mortgagor
WHAT ARE THE REMEDIES OF THE MORTGAGE CREDITOR AGAINST THE INSOLVENT DEBTOR
•
take part in the insolvency proceedings and recover his credit against the insolvent
•
institute, maintain and prosecute a separate suit against the insolvent debtor for the recovery of his secured credit until he obtains a final judgment, and he may enforce this judgment against the property mortgaged to him in the manner established by law
•
AFTER MORTGAGE DEBTOR has been declared INSOLVENT and the INSOLVENCY COURT has acquired control of his estate → no separate foreclosure proceeding may be validly instituted to foreclose the mortgage without the knowledge and previous consent of the insolvency court.
DOES THE PERSONAL ACTION FOR RECOVERY OF DEBTOR CONSTITUTE A WAIVER OF THE RIGHT OF FORECLOSURE •
YES, a mortgage creditor may institute against the mortgage debtor either a personal action for debt or a real action to foreclose the mortgage, but NOT BOTH
VENUE OF THE ACTION FOR FORECLOSURE
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court which has territorial jurisdiction over the area wherein the real property involved or a portion thereof as situated
WHO ARE THE PARTIES DEFENDANT IN A FORECLOSURE COMPLAINT INDISPENSABLE PARTIES • •
• •
•
Mortgage debtor mortgagor or owner of the mortgaged property, if not the debtor executor or administrator of the deceased mortgagor executor or administrator of a deceased owner of the property mortgaged with the approval of the court heir to whom the mortgaged property has been adjudicated
NECESSARY PARTIES •
• •
All persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgaged (second mortgagee) subsequent attaching creditor a purchaser of the mortgaged property
WHAT IS THE EFFECT OF THE FAILURE TO JOIN THE SECOND MORTGAGEE IN A PROCEEDING TO FORECLOSE A FIRST MORTGAGE ON REAL PROPERTY
•
YES, and even if the first mortgagee is not joined or does not intervene, his rights are protected inasmuch as the mortgaged property remains subject to his lien.
WHAT IS THE EFFECT OF A PROHIBITION AGAINST A SECOND MORTGAGE, SALE OR DONATION WITHOUT THE CONSENT OF THE MORTGAGEE •
a prohibition in a mortgage contract against the encumbrance, sale or disposal of the mortgaged property without the consent of the mortgagee is valid as not contrary to law, morals or public interest
•
penalty provided in the mortgage contract for violation of such prohibition is also valid, so that the mortgagee has the right to immediately foreclose the mortgage, but such sale or second mortgage is not null and void
•
stipulation forbidding the owner from alienating the mortgaged immovable shall be void
Section 2. Judgment on foreclosure for payment or sale. — If upon the trial in such action the court shall find the facts set forth in the complaint to be true, it shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as approved by the court, and costs, and shall render judgment for the sum so found due and order that the same be paid to the court or to the judgment obligee within a period of not less than ninety (90) days nor more than one hundred twenty (120) days from the entry of judgment, and that in default of such payment the property shall be sold at public auction to satisfy the judgment. (2a)
where the second mortgagee is not made a party to a proceeding to foreclose the 1st mortgage, an independent foreclosure proceeding may be maintained against him by the creditor in the 1st mortgage, in which proceeding, the court should require the 2nd mortgagee to redeem from the 1st mortgage within 3 months, WHAT ARE THE AMENDGMENTS MADE TO THE FORMER RULE? under penalty of being debarred from the exercise of his right to redeem • Amount of the judgment shall be paid to the court or the judgment obligee WHAT IS THE EFFECT OF THE FAILURE TO JOIN THE SUBORDINATE • period of payment shall not exceed 120 days LIENHOLDER OR SUBSEQUENT PURCHASER IN A PROCEEDING TO FORECLOSE A FIRST MORTGAGE • period is counted from the entry of the judgment • in the event of the failure to implead a subordinate lienholder or subsequent DOES THE STIPULATION THAT THE MORTGAGEE MAY TAKE POSSESSION OF purchaser or both, the foreclosure is ineffective as against them, with the result THE MORTGAGED PROPERTY EXEMPT THE MORTGAGOR FROM PAYMENT OF that there remains in their favor the “unforecloosed equity of redemption” COSTS IF FORECLOSURE ACTION IS BROUGHT • foreclosure is valid as between the parties to the suit • NO, the stipulation in a mortgage contract that the mortgagee may take •
possession of the mortgaged property in case of non-compliance by the mortgagor with any of the conditions of the mortgage
MAY THE FIRST MORTGAGEE BE JOINED AS PARTY DEFENDANT IN THE FORECLOSURE ACTION BY THE SECOND MORTGAGEE? •
YES, nothing in the law that prohibits the joinder of a first mortgagee in a complaint filed by the second mortgagee for foreclosure of a real estate mortgage.
•
not exempt said mortgagor from the payment of costs of the suit if the mortgagee brings an action for foreclosure of the mortgage in accordance with the stipulation in said contract
IF THE 1ST MORTGAGEE IS NOT JOINED, MAY HE FILE A COMPLAINT-IN- WHAT IS THE MANNER OF ENFORCING A JUDGMENT OF FORECLOSURE AFTER THE LAPSE OF 5 YEARS? INTERVENTION UNDER RULE 19
26
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•
A judgment of foreclosure may be enforced after the lapse of 5 years by reviving the judgment and filing a complaint based thereon
•
a 2nd mortgagee who was not a party either in the original complaint, or in the AFTER THE FORECLOSURE, WHAT MAY THE PLAINTIFF OR THE PURCHASER judgment entered by virtue thereof, may not be included as party defendant in DO? an action commenced by a complaint for the purpose of reviving the said • File a motion for confirmation of the sale, with notice to all the parties to the judgment which has already lapsed action mortgagee who forecloses a part of the mortgaged properties only and does not ARE NOTICE AND HEARING OF THE MOTION FOR CONFIRMATION OF SALE foreclose the remainder until after the expiration of 5 years to recover the RQUIRED balance of the mortgage indebtedness, is not entitled to charge interest on said balance for the period of the delay • YES, otherwise, the confirmation of sale is void
•
Section 3. Sale of mortgaged property; effect. — When the defendant, after being directed to do so as provided in the next preceding section, fails to pay the amount of the judgment within the period specified therein, the court, upon motion, shall order the property to be sold in the manner and under the provisions of Rule 39 and other regulations governing sales of real estate under execution. Such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof, and when confirmed by an order of the court, also upon motion, it shall operate to divest the rights in the property of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law. Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property unless a third party is actually holding the same adversely to the judgment obligor. The said purchaser or last redemptioner may secure a writ of possession, upon motion, from the court which ordered the foreclosure. (3a)
IF THE DEFENDANT FAILS TO PAY THE AMOUNT OF THE JUDGMENT WITHIN THE SPECIFIED PERIOD, WHAT MAY THE PLAINTIFF DO? •
Plaintiff shall file a motion for the sale of the mortgaged property
can be obtained, mere inadequacy of the price will not be a ground to set aside the sale because in forced sales, low prices are usually offered.
•
hearing be given the interested parties
WHAT IS THE EFFECT OF THE ISSUANCE OF THE ORDER OF CONFIRMATION OF THE SALE •
issuance of the order in a judicial proceedings cuts of all interest of the mortgagor in the property sold and vests them in the purchaser, subject to such rights of redemption as may be allowed by law
•
confirmation retroacts to the date of the sale
ORDER OF CONFIRMATION A FINAL ORDER •
YES, it is appealable
BEFORE THE FINALITY OF THE ORDER OF CONFIRMATION, WHAT ARE THE RIGHTS OF THE MORTGAGE DEBTOR, THE 2ND MORTGAGEE, THE SUBSEQUENT ATTACHING CREDITOR OR PURCHASERS •
before the finality of the order, the mortgage debtor, the 2 nd mortgagee, the subsequent attaching creditor or purchaser may exercise what is known as the “EQUITY OF REDEMPTION”
•
after the sale and before its confirmation → court may still grant them an opportunity to pay the proceeds of the sale and thus abstain from confirming it
NOTICE OF THE SALE ON EXECUTION REQUIRED TO BE GIVEN THE JUDGMENT ACCEPTANCE OF A BID AT THE FORECLOSURE SALE BUT BEFORE ITS OBLIGOR CONFIRMATION , THE MORTGAGEE, AS THE PURCHASER THEREAT, SELLS THE • YES, notice is now required to be given the judgment obligor under Sec 15(d) of MORTGAGED PROPERTY TO ANOTHER PERSON, IS THE EQUITY OF REDEMPTION AFFECTED? Rule 39 GROUND FOR SETTING ASIDE THE SALE?
27
•
NO, if after the foreclosure sale and before the confirmation thereof, the mortgagee, as purchaser at the auction sale, sells the mortgaged property to another person, that subsequent sale does not prevent the trial court from granting the mortgagor a period within which to redeem the mortgaged lot by paying the judgment debt and the expenses of the sale and costs
•
A judicial sale of real estate in an action for foreclose may be set aside when the price is greatly inadequate as to shock the conscience or when there are additional circumstances against fairness
•
HOWEVER, if there is showing that in the event of a regular sale, a better price AFTER THE CONFIRMATION OF SALE (OR THE EXPIRATION OF THE PERIOD OF
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NO, it is the CONFIRMATION by the court of the auction sale, subject to such rights of redemption as may be allowed by law, that divests the mortgagors and all the parties to the action of their rights to the mortgaged property and vests such rights in the purchaser at the auction sale
CONFIRMATION OF SALE IN EXTRAJUDICIAL FORECLOSURE REQUIRED
ATTY. CAPELLAN WHAT IS THE REDEMPTION PRICE mortgagee is a bank, quasi-bank or trust mortgagee is NOT a bank, quasi-bank or entity trust entity EXTRAJUDICIAL FORECLOSURE OF REAL ESTATE MORTGAGE •
•
NO, under the general banking law, the confirmation of sale in case of extrajudicial foreclosure is not required
•
•
section 47 of the general banking law is applicable when the mortgagee is a bank, quasi-bank or trut entity
•
RIGHT OF REDEMPTION IN JUDICIAL FORECLOSURE •
GENERAL RULE: no right of redemption
•
EXCEPT: when the mortgagee is a bank, quasi-bank or trust entity, the mortgagor has a right of redemption for both judicial and extra-judicial foreclosure of any mortgage on real estate
PERIOD OF REDEMPTION
•
•
•
EXTRAJUDICIAL FORECLOSURE OF REAL ESTATE MORTGAGE Mortgagor has only EQUITY REDEMPTION exercisable until, but not after the registration of the certificate of foreclosure sale with the applicable Register of Deeds which in no case shall be more than 3 months after foreclosure, whichever is earlier
Non juridical mortgagor retains the RIGHT OF REDEMPTION at any time within 1 year from and after the date of the sale, and such redemption shall be governed by the provisions of Rule 39 of the Rules of Court, insofar as they are not inconsistent with the provisions thereof
JUDICIAL FORECLOSURE OF REAL ESTATE MORTGAGE Morgagor has a RIGHT OF REDEMPTION Mortgagor has also a RIGHT OF within 1 year after the sale of the real estate REDEMPTION within 1 year after of the real estate WHERE IS THE PERIOD OF 1 YEAR AFTER THE SALE RECKONED FROM? •
28
Period of 1 year after the sale within which to redeem has been construed as ONE YEAR FROM THE REGISTRATION OF THE SALE OF REGISTERED LAND
• •
•
Auction purchase price 1% interest per month on the said amount up to the time of redemption the taxes or assessment paid by the purchaser , if any
JUDICIAL FORECLOSURE OF REAL ESTATE MORTGAGE
•
Mortgagor is a JURIDICAL PERSON and Mortgagor is a NON-JURIDICAL the mortgagee is a bank, quasi-bank or PERSON, and the mortgage is a bank, trust entity quasi-bank or trust entity
Amount due under the mortgage deed, with interest thereon at the rate specified in the mortgage, and all the costs and expenses incurred by the bank or institution from the sale of the custody of the mortgage property, less: the income derived therefrom
•
Amount due under the mortgage deed interest thereon at the rate specified in the mortgage all the costs and expenses incurred by the bank or institution from the sale of the custody of the mortgage property, less: the income derived therefrom
REQUIREMENT UNDER SECTION 47 OF THE GENERAL BANKING LAW OF 2000 IN ORDER TO ENJOIN FORECLOSURE PROCEEDINGS •
any petition in court to enjoin or restrain the conduct of foreclosure proceedings instituted pursuant to Section 47 shall be given due course only upon the filing by the petitioner of a bond in an amount fixed by the court, conditioned that he will pay all the damages which the bank may suffer by the enjoining or the restraint of the foreclosure proceeding.
RULE AS REGARDS THE TAKING OF POSSESSION OF THE PROPERTY PURCHASED AT PUBLIC AUCTION? mortgagee is a bank, quasi-bank or trust mortgagee is NOT a bank, quasi-bank or entity trust entity Purchaser at the auction sale concrned Purchaser or last redemptioner, if any, shall have the right to enter upon and take may, upon motion, secure a writ of
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possession of the property from the court which ordered the foreclosure UPON THE FINALITY OF THE ORDER OF CONFIRMATION OR UPON THE EXPIRATION OF THE PERIOD OF REDEMPTION WHEN ALLOWED BY LAW, unless a 3rd party is actually holding the same adversely to the judgment obligor
Date of confirmation of the auction sale → finality of the order of confirmation
ATTY. CAPELLAN Section 5. How sale to proceed in case the debt is not all due. — If the debt for which the mortgage or encumbrance was held is not all due as provided in the judgment as soon as a sufficient portion of the property has been sold to pay the total amount and the costs due, the sale shall terminate; and afterwards as often as more becomes due for principal or interest and other valid charges, the court may, on motion, order more to be sold. But if the property cannot be sold in portions without prejudice to the parties, the whole shall be ordered to be sold in the first instance, and the entire debt and costs shall be paid, if the proceeds of the sale be sufficient therefor, there being a rebate of interest where such rebate is proper. (5a)
MAY FORECLOSURE BE DONE PRIOR TO THE MATURITY OF THE ENTIRE DEBT? EFFECT OF ISSUANCE OF THE WRIT •
YES, the generally accepted rule is that where the secured debt is payable in installments, default payment of any installment gives the mortgagee a right to foreclose as to such installments without waiting for the maturity of the whole debt.
•
If the property cannot be sold in portions without prejudice to the parties, the entire property shall be ordered sold and the entire debt and costs settled if the proceeds be sufficient, with a rebate of interest, if proper.
writ of possession places the purchaser in the possession of the property which he has purchased at the public auction sale
Section 4. Disposition of proceeds of sale. — The amount realized from the foreclosure sale of the mortgaged property shall, after deducting the costs of the sale, be paid to the person foreclosing the mortgage, and when there shall be any balance or residue, after paying off the mortgage debt due, the same shall be paid to junior encumbrancers in the order of their priority, to be ascertained by the court, or if there be no such encumbrancers or there be a balance or residue after payment to them, then to the mortgagor or his duly authorized agent, or to the person entitled to it. (4a)
HOW ARE THE PROCEEDS OF THE SALE APPLIED? •
•
After deducting the costs of the foreclosure sale, the balance realized from the sale shall be paid in the following order 1.
person foreclosing the mortgage to settle the mortgage debt due
Section 6. Deficiency judgment. — If upon the sale of any real property as provided in the next preceding section there be a balance due to the plaintiff after applying the proceeds of the sale, the court, upon motion, shall render judgment against the defendant for any such balance for which, by the record of the case, he may be personally liable to the plaintiff, upon which execution may issue immediately if the balance is all due at the time of the rendition of the judgment; otherwise; the plaintiff shall be entitled to execution at such time as the balance remaining becomes due under the terms of the original contract, which time shall be stated in the judgment. (6a)
2.
to the junior encumberancers in order of their priority as ascertained by the court COURT AUTHORIZE THE RECOVERY OF DEFICIENCY BEFORE THE FORECLOSYRE SALE? 3. the the mortgagors or his duly authorized agent, or the person entitled to it • NO, because it is unknown whether or not a deficiency exists RIGHT OF THE 2ND MORTGAGEE WHAT ARE THE INSTANCES WHEN DEFICIENCY JUDGMENT CANNOT BE • right of repurchase DECREED? • apply the payment of its credit the excess of the proceeds of the sale after the • When one mortgages his property to secure the debt of another without payment of that of the 1st mortgagee, such being the effect of the subordination expressly assuming personal liability for such debt, he cannot be compelled to of its mortgage to that of the latter pay the deficiency remaining due after the mortgage is foreclosed •
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IF the 1st mortgagee has absorbed all its proceed of the sale → the mortgage in favor of the 2nd mortgagee is in fact extinguished with it.
•
in action to foreclose a mortgage against a non-resident defendant not found in the PH who fails to submit himself to the jurisdiction of the court, no personal
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judgment for the deficiency can be rendered
new one issued in the name of the purchaser. (n)
MAY THE DEFICIENCY NOT EXECUTED BEFORE THE DEATH OF THE MORTGAGE DEBTOR BE FILED AS A CLAIM AGAINST THE ESTATE OF THE DECEASED •
PD 1529: AMENDING AND CODIFYING THE LAWS RELATIVE TO REGISTRATION OF PROPERTY AND FOR OTHER PURPOSES
YES
IS THERE A RIGHT TO RECOVER DEFICIENCY IN THE FORECLOSURE OF Section 63. Foreclosure of Mortgage. (a) If the mortgage was foreclosed judicially, a CHATTEL MORTGAGE certified copy of the final order of the court confirming the sale shall be registered with the Register of Deeds. If no right of redemption exists, the certificate of title of the • YES, with exception mortgagor shall be canceled, and a new certificate issued in the name of the purchaser. ◦ Article 1481 “In a contract of sale of personal property the price of which is Where the right of redemption exists, the certificate of title of the mortgagor payable in installments ” shall not be canceled, but the certificate of sale and the order confirming the sale •
section 6 applies to a judicial foreclosure of chattel mortgage
•
extrajudicial foreclosure of a chattel mortgage → deficiency exists, an independent action may be instituted for the recover of said deficiency
PRESCRIPTIVE PERIOD FOR FILING AN ACTION FOR EXTRAJUDICIAL FORECLOSURE OF REAL ESTATE MORTGAGE
DEFICIENCY
shall be registered by a brief memorandum thereof made by the Register of Deeds upon the certificate of title. In the event the property is redeemed, the certificate or deed of redemption shall be filed with the Register of Deeds, and a brief memorandum thereof shall be made by the Register of Deeds on the certificate of title of the mortgagor.
IN
•
right to claim payment of deficiency after foreclosure of real estate mortgage prescribes in 10 YEARS under articles 1144 and 1142 of the civil code
•
Art. 1142. A mortgage action prescribes after ten years. (1964a)
•
Art. 1144. The following actions must be brought within ten years from the time the right of action accrues: (1) Upon a written contract;
If the property is not redeemed, the final deed of sale executed by the sheriff in favor of the purchaser at a foreclosure sale shall be registered with the Register of Deeds; whereupon the title of the mortgagor shall be canceled, and a new certificate issued in the name of the purchaser. Section 8. Applicability of other provisions. — The provisions of sections 31, 32 and 34 of Rule 39 shall be applicable to the judicial foreclosure of real estate mortgages under this Rule insofar as the former are not inconsistent with or may serve to supplement the provisions of the latter. (8a)
(2) Upon an obligation created by law;
RULE 69: Partition
(3) Upon a judgment. (n) Section 7. Registration. — A certified copy of the final order of the court confirming the sale shall be registered in the registry of deeds. If no right of redemption exists, the certificate of title in the name of the mortgagor shall be cancelled, and a new one issued in the name of the purchaser. Where a right of redemption exists, the certificate of title in the name of the mortgagor shall not be cancelled, but the certificate of sale and the order confirming the sale shall be registered and a brief memorandum thereof made by the registrar of deeds upon the certificate of title. In the event the property is redeemed, the deed of redemption shall be registered with the registry of deeds, and a brief memorandum thereof shall be made by the registrar of deeds on said certificate of title. If the property is not redeemed, the final deed of sale executed by the sheriff in favor of the purchaser at the foreclosure sale shall be registered with the registry of deeds; whereupon the certificate of title in the name of the mortgagor shall be cancelled and a
30
Section 1. Complaint in action for partition of real estate. — A person having the right to compel the partition of real estate may do so as provided in this Rule, setting forth in his complaint the nature and extent of his title and an adequate description of the real estate of which partition is demanded and joining as defendants all other persons interested in the property. (1a)
•
It becomes necessary if the co=owners cannot agree on extrajudicial partition
JURISDICTION Inside Metro Manila MTC
Outside Metro Manila
If the assessed value of the real If the assessed value of the real estate estate is NOT more than is NOT more than P50,000.00
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ATTY. CAPELLAN co-owners cannot demand a physical division of the thing owned in common, when to do so would render it unserviceable for the use for which it is intended. But the co-ownership may be terminated in accordance with Article 498. (401a)
P20,000.00 The amount of the personal property The amount of the personal property is not more than P300,000 is not more than P400,000 RTC
If the assessed value of the estate EXCEEDS P20,000
Art. 496. Partition may be made by agreement between the parties or by judicial proceedings. Partition shall be governed by the Rules of Court insofar as they are consistent with this Code. (402)
real If the assessed value of the real estate EXCEEDS P50,000
The amount of the personal property The amount of the personal property EXCEEDS more than P300,000 EXCEEDS more than P400,000 •
if the title or possession of the real property in an action for partition depends on the annulment of a Deed of declaration of heirs which is incapable of pecuniary estimation → RTC has jurisdictional
•
WHO MAY FILE COMPLAINT? He who demands or claims a partition of the property must have the status of co-proprietor or co-owner of the undivided property
•
WHO BE MADE DEFENDANTS in a complaint for partition?
•
Art. 498. Whenever the thing is essentially indivisible and the coowners cannot agree that it be allotted to one of them who shall indemnify the others, it shall be sold and its proceeds distributed. (404)
◦
Action for partition for real property → co-owners or coparceners of property
◦
INDISPENSABLE PARTY: co-owners
Art. 1083. Every co-heir has a right to demand the division of the estate unless the testator should have expressly forbidden its partition, in which case the period of indivision shall not exceed twenty years as provided in article 494. This power of the testator to prohibit division applies to the legitime. Even though forbidden by the testator, the co-ownership terminates when any of the causes for which partnership is dissolved takes place, or when the court finds for compelling reasons that division should be ordered, upon petition of one of the co-heirs. (1051a) Art. 1084. Voluntary heirs upon whom some condition has been imposed cannot demand a partition until the condition has been fulfilled; but the other co-heirs may demand it by giving sufficient security for the rights which the former may have in case the condition should be complied with, and until it is known that the condition has not been fulfilled or can never be complied with, the partition shall be understood to be provisional. (1054a)
if real estate inadequately described → it can be cured by evidence introduced at the trial without objection
CIVIL CODE PROVISIONS ON PARTITION Art. 494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at any time the partition of the thing owned in common, insofar as his share is concerned. Nevertheless, an agreement to keep the thing undivided for a certain period of time, not exceeding ten years, shall be valid. This term may be extended by a new agreement. A donor or testator may prohibit partition for a period which shall not exceed twenty years. Neither shall there be any partition when it is prohibited by law. No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs so long as he expressly or impliedly recognizes the co-ownership. (400a) Art. 495. Notwithstanding the provisions of the preceding article, the
31
Section 2. Order for partition and partition by agreement thereunder. — If after the trial the court finds that the plaintiff has the right thereto, it shall order the partition of the real estate among all the parties in interest. Thereupon the parties may, if they are able to agree, make the partition among themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed upon by all the parties, and such partition, together with the order of the court confirming the same, shall be recorded in the registry of deeds of the place in which the property is situated. (2a) A final order decreeing partition and accounting may be appealed by any party aggrieved thereby. (n)
•
orders of partition and direction an accounting is appealable, because said order
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SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS is considered final and appealable notwithstanding that further proceedings need to be done by the party required to do so •
period of appeal from an order of partition is 30 DAYS counted from notice of said order. ◦
•
Record on appeal is required since there may be a subsequent appeal from the judgment on the actual partition and/or accounting for rent and profits under section 7 and 8
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 equitable, having due regard to the improvements, situation and quality of the different parts thereof. (4a)
•
2 stages for partitions 1.
DETERMINATION of whether or not a CO-OWNERSHIP IN FACT EXISTS, and a partition is proper. This may be made by voluntary agreements of all the parties interest in the property •
2.
this may end either: ◦
with a declaration that plaintiff is not entitled to have a partition either because a co-ownership does not exists or partition is legally prohibited or
◦
with a judgment that a co-ownership does exists, partition is proper in the premises and an accounting of rents and profits received by the defendant from the real estate in question is in order
when it APPEARS that THE PARTIES ARE UNABLE TO AGREE UPON THE PARTITION directed by the court. Partition shall be done for the parties by the court with the assistance of not more than 3 commissioners. It may also deal with rendition of the accounting itself and its approval by the court after the parties have been accorded opportunity to be heard thereon, and an award for the recovery by the party or parties thereto entitled of their just share in the rents and profits of the real estate in question.
Section 3. Commissioners to make partition when parties fail to agree. — If the parties are unable to agree upon the partition, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to make the partition, commanding them to set off to the plaintiff and to each party in interest such part and proportion of the property as the court shall direct. (3a)
Section 4. Oath and duties of commissioners. — Before making such partition; the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case. In making the partition, the commissioners shall view and examine the real estate, after due notice to the parties to attend at such view and examination, and shall
32
ATTY. CAPELLAN
When judicial discretion is called upon to make up for the lack of agreement → court must consider and respect the interests of all parties, and adopt that form of partition nearest to absolute equity and most consonant with reason and justice
Section 5. Assignment or sale of real estate by commissioners. — When it is made to appear to the commissioners that the real state, or a portion thereof, cannot be divided without prejudice to the interests of the parties, the court may order it assigned to one of the parties willing to take the same, provided he pays to the other parties such amount as the commissioners deem equitable, unless one of the interested parties asks that the property be sold instead of being so assigned, in which case the court shall order the commissioners to sell the real estate at public sale under such conditions and within such time as the court may determine. (5a)
•
Public sale is MANDATORY if one of the parties interested asks that the property be sold instead of assigned to one of them
Section 6. Report of commissioners; proceedings not binding until confirmed. — The commissioners shall make a full and accurate report to the court of all their proceedings as to the partition, or the assignment of real estate to one of the parties, or the sale of the same. Upon the filing of such report, the clerk of court shall serve copies thereof on all the interested parties with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire. No proceeding had before or conducted by the commissioners and rendered judgment thereon. (6a)
Section 7. Action of the court upon commissioners report. — Upon the expiration of the period of ten (10) days referred to in the preceding section or even before the expiration of such period but after the interested parties have filed their objections to the report or their statement of agreement therewith the court may, upon hearing, accept the report and render judgment in accordance therewith, or, for cause shown recommit the same to the commissioners for further report of facts; or set aside the report and appoint new commissioners; or accept the report in part and reject it in part; and may make such order and render such judgment as shall effectuate a fair and just partition of the real estate, or of its value, if assigned or sold as above provided, between the several owners thereof. (7)
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Procedure is similar to that in section 7 and 8 of rule 67
•
the appellate court cannot ordinarily reverse the findings of impartial commissioner and trial judge except if there is irregularity in the proceedings, impartiality or fraud in the partition
Section 8. Accounting for rent and profits in action for partition. — In an action for partition in accordance with this Rule, a party shall recover from another his just share of rents and profits received by such other party from the real estate in question, and the judgment shall include an allowance for such rents and profits. (8a)
•
No claim for rents and profits which are not set up in the action for partition because such act is part of a single cause of action and will be barred if not set up.
Section 9. Power of guardian in such proceedings. — The guardian or guardian ad litem of a minor or person judicially declared to be incompetent may, with the approval of the court first had, do and perform on behalf of his ward any act, matter, or thing respecting the partition of real estate, which the minor or person judicially declared to be incompetent could do in partition proceedings if he were of age or competent. (9a)
•
severalty the portion of the real estate assigned to him. If the whole property is assigned to one of the parties upon his paying to the others the sum or sums ordered by the court, the judgment shall state the fact of such payment and of the assignment of the real estate to the party making the payment, and the effect of the judgment shall be to vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties to the action. If the property is sold and the sale confirmed by the court, the judgment shall state the name of the purchaser or purchasers and a definite description of the parcels of real estate sold to each purchaser, and the effect of the judgment shall be to vest the real estate in the purchaser or purchasers making the payment or payments, free from the claims of any of the parties to the action. A certified copy of the judgment shall in either case be recorded in the registry of deeds of the place in which the real estate is situated, and the expenses of such recording shall be taxed as part of the costs of the action. (11a)
Section 12. Neither paramount rights nor amicable partition affected by this Rule. — Nothing in this Rule contained shall be construed so as to prejudice, defeat, or destroy the right or title of any person claiming the real estate involved by title under any other person, or by title paramount to the title of the parties among whom the partition may have been made, nor so as to restrict or prevent persons holding real estate jointly or in common from making an amicable partition thereof by agreement and suitable instruments of conveyance without recourse to an action. (12a)
Similar to section 14 of rule 67
Section 10. Costs and expenses to be taxed and collected. — The court shall equitably tax and apportion between or among the parties the costs and expenses which accrue in the action, including the compensation of the commissioners, having regard to the interests of the parties, and execution may issue therefor as in other cases. (10a)
•
Art. 500. Upon partition, there shall be a mutual accounting for benefits received and reimbursements for expenses made. Likewise, each co-owner shall pay for damages caused by reason of his negligence or fraud. (n)
•
Art. 1087. In the partition the co-heirs shall reimburse one another for the income and fruits which each one of them may have received from any property of the estate, for any useful and necessary expenses made upon such property, and for any damage thereto through malice or neglect. (1063)
Section 11. The judgment and its effect; copy to be recorded in registry of deeds. — If actual partition of property is made, the judgment shall state definitely, by metes and bounds and adequate description, the particular portion of the real estate assigned to each party, and the effect of the judgment shall be to vest in each party to the action in
33
ATTY. CAPELLAN
•
Judgment in the action for partition does not affect 3 rd persons and their rights over the property → partition is res judicata only on the parties thereto and their successor-in-interest
•
creditors or assignee of co-owners CAN intervene in an action for partition BUT they cannot impugn any partition already executed, unless there has been fraud or it was made notwithstanding opposition to prevent it
•
party intervening must show a legitimate and proper interest in the property sought to be partitioned and that such interest cannot be otherwise properly protected
Section 13. Partition of personal property. — The provisions of this Rule shall apply to partitions of estates composed of personal property, or of both real and personal property, in so far as the same may be applicable. (13)
•
Applicable to personal property
•
if cannot partition, it will be sold under the direction of the court and the proceeds divided among the owners after the necessary expenses have been deducted
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SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
ATTY. CAPELLAN
RULE 70: Forcible Entry and Unlawful Detainer Section 1. Who may institute proceedings, and when. — Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person, may, at any time within one (1) year after such unlawful deprivation or withholding of possession, bring an action in the proper Municipal Trial Court against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs. (1a)
•
•
WHO MAY BRING ACTIONS? •
Person or co-owner deprived of the possession of any land or building by force, intimidation, threat, strategy or stealth
1.
FORCIBLE ENTRY - action to recover possession founded on illegal occupation from the beginning
2.
UNLAWFUL DETAINER – action founded on unlawful detention by a person who originally acquired possession lawfully
governed by REVISED RULE ON SUMMARY PROCEDURE UNLAWFUL DETAINER DEFINITION
RECON THE 1 YEAR PRESCRIPTION
•
Date of the entry or taking of possession by FORCE, INTIMIDATION, THREAT, STRATEGY OR from the demand to vacate, upon learning of the entry by stealth
•
•
From the date of the last demand to vacate in case of non-payment of rent or noncompliance with the conditions of the lease from the date of the notice to quit, in case of a tacit renewal of the lease (tacita reconduccion), as when the acquiescence of the lessor,
Lessor, vendor, vendee, co-owner or other person against whom possession of any land or building is unlawfully withheld the legal representative or assigns of any such lessor, vendor, vendee, co-owner or other person against whom possession of any land or building is unlawfully withheld
AGAINST WHOM MAY THE ACTIONS BE MAINTAINED ONLY against the person who is in possession at the commencement of the action •
Is based on entry effected by FORCE, Based on the unlawful detention by a INTIMIDATION, THREAT, STRATEGY person who has acquired possession OR STEALTH rightfully, but who detains the property after the right to keep possession is ended the action is to recover possession founded upon illegal possession from the beginning •
•
•
2 distinct causes of action
FORCIBLE ENTRY
34
•
the lessee continues enjoying the thing leased for 15 days , as provided by Article 1670 of the Civil Code from the date of the revocation of the permit in case of occupancy on mere tolerance or under a temporary permit
JURISDCTION : MTC ◦
decision is conclusive as to POSSESSION not OWNERSHIP
•
actions should be brought within 1 year, otherwise, the RTC will have jurisdiction
•
Ejectment suits are NOT suspended or barred by other actions
ACTIONS TO RECOVER POSSESSION OF REAL PROPERTY FORCIBLE ENTRY AND UNLAWFUL Brought before the MTC within 1 YEAR DETAINER from unlawful deprivation or withholding of possession and has for its object the recovery of the physical possession ACCION PUBLICIANA
A plenary action for possession which could be brought in the RTC or MTC after 1 year or within 1 year in cases not covered by rule 70, and has for its object the recovery of the better right to such possession (possession de jure)
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SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS ACCION REINVIDICATORIA
•
•
•
•
The court may receive evidence on possession de jure but only to determine the NATURE OF POSSESSION
Pre-requisite for lessor to commence an action for unlawful detainer ◦
lessor shall commence an action for ejectment only after demand has been made on the lessee to pay or comply with the conditions of the lease and
◦
vacate within 15 days in the case of land OR 5 days in case of building
demand is necessary → demand is a pre-requisite for unlawful detainer when the action is for FAILURE TO PAY RENT DUE OR TO COMPLY WITH THE CONDITIONS OF THE LEASE Demand is NOT necessary
◦
Art. 1669. If the lease was made for a determinate time, it ceases upon the day fixed, without the need of a demand. (1565)
◦
Art. 1687. If the period for the lease has not been fixed, it is understood to be from year to year, if the rent agreed upon is annual; from month to month, if it is monthly; from week to week, if the rent is weekly; and from day to day, if the rent is to be paid daily. However, even though a monthly rent is paid, and no period for the lease has been set, the courts may fix a longer term for the lease after the lessee has occupied the premises for over one year. If the rent is weekly, the courts may likewise determine a longer period after the lessee has been in possession for over six months. In case of daily rent, the courts may also fix a longer period after the lessee has stayed in the place for over one month. (1581a)
notice to quit is neceesary
◦
35
unless a notice to the contrary by either party has previously been given, it is understood that there is an implied new lease, not for the period of the original contract, but for the time established in Articles 1682 and 1687. The other terms of the original contract shall be revived. (1566a)
An action to recover ownership and possession which may be brought in the RTC or MTC
Section 2. Lessor to proceed against lessee only after demand. — Unless 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 fifteen (15) days in the case of land or five (5) days in the case of buildings. (2a)
•
ATTY. CAPELLAN
Art. 1670. If at the end of the contract the lessee should continue enjoying the thing leased for fifteen days with the acquiescence of the lessor, and
•
neither demand nor notice to quit necessary ◦
•
forcible entry cases because the possession is illegal from the beginning
NOT alternative : demand to pay rental or demand to vacate
Section 3. Summary procedure. — Except in cases covered by the agricultural tenancy laws or when the law otherwise expressly provides, all actions for forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered, shall be governed by the summary procedure hereunder provided. (n)
•
All unlawful detainer and forcible entry cases are tried pursuant to the REVISED RULE ON SUMMARY PROCEDURE
•
rules on summary procedure → only applicable to MTC or MeTC cases NOT to the RTC
•
when the decision of the MTC or MeTC is appealed to the RTC, the RTC's rules are applied
Section 4. Pleadings allowed. — The only pleadings allowed to be filed are the complaint, compulsory counterclaim and cross-claim pleaded in the answer, and the answers thereto. All pleadings shall be verified. (3a, RSP)
Section 5. Action on complaint. — The court may, from an examination of the allegations in the complaint and such evidence as may be attached thereto, dismiss the case outright on any of the grounds for the dismissal of a civil action which are apparent therein. If no ground for dismissal is found, it shall forthwith issue summons. (n)
Section 6. Answers. — Within ten (10) days from service of summons, the defendant shall file his answer to the complaint and serve a copy thereof on the plaintiff. Affirmative and negative defenses not pleaded therein shall be deemed waived, except lack of jurisdiction over the subject matter. Cross-claims and compulsory counterclaims not asserted in the answer shall be considered barred. The answer to counterclaims or cross-claims shall be served and filed within ten (10) days from service of the answer in which they are pleaded. (5 RSP)
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SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS Section 7. Effect of failure to answer. — Should the defendant fail to answer the complaint within the period above provided, the court, motu proprio or on motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein. The court may in its discretion reduce the amount of damages and attorney's fees claimed for being excessive or otherwise unconscionable, without prejudice to the applicability of section 3 (c), Rule 9 if there are two or more defendants. (6, RSP)
Section 8. Preliminary conference; appearance of parties. — Not later than thirty (30) days after the last answer is filed, a preliminary conference shall be held. The provisions of Rule 18 on pre-trial shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule. The failure of the plaintiff to appear in the preliminary conference shall be cause for the dismissal of his complaint. The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim in accordance with the next preceding section. All cross-claims shall be dismissed. (7, RSP) If a sole defendant shall fail to appear, the plaintiff shall likewise be entitled to judgment in accordance with the next preceding section. This procedure shall not apply where one of two or more defendants sued under a common cause of action defense shall appear at the preliminary conference. No postponement of the preliminary conference shall be granted except for highly meritorious grounds and without prejudice to such sanctions as the court in the exercise of sound discretion may impose on the movant. (n)
•
First 2 paragraphs are same as section 7 on summary procedure BUT last paragraph on postponement is NEW
Section 9. Record of preliminary conference. — Within five (5) days after the termination of the preliminary conference, the court shall issue an order stating the matters taken up therein, including but not limited to: 1. Whether the parties have arrived at an amicable settlement, and if so, the terms thereof; 2. The stipulations or admissions entered into by the parties; 3. Whether, on the basis of the pleadings and the stipulations and admission made by the parties, judgment may be rendered without the need of further proceedings, in which event the judgment shall be rendered within thirty (30) days from issuance of the order; 4. A clear specification of material facts which remain converted; and
36
ATTY. CAPELLAN 5. Such other matters intended to expedite the disposition of the case. (8, RSP)
Section 10. Submission of affidavits and position papers. — Within ten (10) days from receipt of the order mentioned in the next preceding section, the parties shall submit the affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position papers setting forth the law and the facts relied upon by them. (9, RSP)
Section 11. Period for rendition of judgment. — Within thirty (30) days after receipt of the affidavits and position papers, or the expiration of the period for filing the same, the court shall render judgment. However, should the court find it necessary to clarify certain material facts, during the said period, issue an order specifying the matters to be clarified, and require the parties to submit affidavits or other evidence on the said matters within ten (10) days from receipt of said order. Judgment shall be rendered within fifteen (15) days after the receipt of the last affidavit or the expiration of the period for filing the same. The court shall not resort to the foregoing procedure just to gain time for the rendition of the judgment. (n)
Section 12. Referral for conciliation. — Cases requiring referral for conciliation, where there is no showing of compliance with such requirement, shall be dismissed without prejudice, and may be revived only after that requirement shall have been complied with. (18a, RSP)
Section 13. Prohibited pleadings and motions. — The following petitions, motions, or pleadings shall not be allowed: 1. Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, or failure to comply with section 12; 2. Motion for a bill of particulars; 3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; 4. Petition for relief from judgment; 5. Motion for extension of time to file pleadings, affidavits or any other paper; 6. Memoranda;
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; 8. Motion to declare the defendant in default; 9. Dilatory motions for postponement; 10. Reply;
ATTY. CAPELLAN determine the issue of possession. (4a)
GUIDELINES IN IMPLEMENTING SECTION 16 1.
. 1. The primal rule is that the principal issue must be that of possession, and that ownership is merely ancillary thereto, in which case the issue of ownership may be resolved but only for the purpose of determining the issue of possession. Thus, as earlier stated, the legal provision under consideration applies only where the inferior court believes and the preponderance of evidence shows that a resolution of the issue of possession is dependent upon the resolution of the question of ownership.
2.
2. It must sufficiently appear from the allegations in the complaint that what the plaintiff really and primarily seeks is the restoration of possession. [20]Consequently, where the allegations of the complaint as well as the reliefs prayed for clearly establish a case for the recovery of ownership, and not merely one for the recovery of possession de facto, or where the averments plead the claim of material possession as a mere elemental attribute of such claim for ownership,[21] or where the issue of ownership is the principal question to be resolved,[22] the action is not one for forcible entry but one for title to real property.
3.
3. The inferior court cannot adjudicate on the nature of ownership where the relationship of lessor and lessee has been sufficiently established in the ejectment case,[23] unless it is sufficiently established that there has been a subsequent change in or termination of that relationship between the parties. This is because under Section 2(b), Rule 131 of the Rules of Court, the tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them.
4.
4. The rule in forcible entry cases, but not in those for unlawful detainer, is that a party who can prove prior possession can recover such possession even against the owner himself. Regardless of the actual condition of the title to the property and whatever may be the character of his prior possession, if he has in his favor priority in time, he has the security that entitles him to remain on the property until he is lawfully ejected by a person having a better right through an accion publiciana or accion reivindicatoria.[24] Corollarily, if prior possession may be ascertained in some other way, then the inferior court cannot dwell upon or intrude into the issue of ownership.
5.
5. Where the question of who has prior possession hinges on the question of who the real owner of the disputed portion is, the inferior court may resolve the issue
11. Third-party complaints; 12. Interventions. (19a, RSP)
Section 14. Affidavits. — The affidavits required to be submitted under this Rule shall state only facts of direct personal knowledge of the affiants which are admissible in evidence, and shall show their competence to testify to the matters stated therein. A violation of this requirement may subject the party or the counsel who submits the same to disciplinary action, and shall be cause to expunge the inadmissible affidavit or portion thereof from the record. (20, RSP)
Section 15. Preliminary injunction. — The court may grant preliminary injunction, in accordance with the provisions of Rule 58 hereof, to prevent the defendant from committing further acts of dispossession against the plaintiff. A possessor deprived of his possession through forcible from the filing of the complaint, present a motion in the action for forcible entry or unlawful detainer for the issuance of a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days from the filing thereof. (3a)
•
Preliminary prohibitory and mandatory injunction can be granted in forcible entry and unlawful detainer
•
preliminary prohibitory injunction may be granted in forcible entry to prevent defendant from further dispossession
•
preliminary prohibitory injunction may be granted in forcible entry to restore possession to plaintiff
•
a writ of preliminary mandatory injunction can be issued against a squatter during the litigation
Section 16. Resolving defense of ownership. — When the defendant raises the defense of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to
37
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SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS of ownership and make a declaration as to who among the contending parties is the real owner.[25] In the same vein, where the resolution of the issue of possession hinges on a determination of the validity and interpretation of the document of title or any other contract on which the claim of possession is premised, the inferior court may likewise pass upon these issues. This is because, and it must be so understood, that any such pronouncement made affecting ownership of the disputed portion is to be regarded merely as provisional, hence, does not bar nor prejudice an action between the same parties involving title to the land.[26] Moreover, Section 7, Rule 70 of the Rules of Court expressly provides that the judgment rendered in an action for forcible entry or unlawful detainer shall be effective with respect to the possession only and in no wise bind the title or affect the ownership of the land or building. Section 17. Judgment. — If after trial court finds that the allegations of the complaint are true, it shall render judgment in favor of the plaintiff for the restitution of the premises, the sum justly due as arrears of rent or as reasonable compensation for the use and occupation of the premises, attorney's fees and costs. If a counterclaim is established, the court shall render judgment for the sum found in arrears from either party and award costs as justice requires. (6a)
•
The courts are empowered by law to fix the period of lease → to make the indefinite period of lease definite
•
a counterclaim for ejectment may be set up in a complaint for consigation → the amount to be consigned will determine the jurisdiction of the court
Section 18. Judgment conclusive only on possession; not conclusive in actions involving title or ownership. — 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 affect the ownership of the land or building. Such judgment shall not bar an action between the same parties respecting title to the land or building. The judgment or final order shall be appealable to the appropriate Regional Trial Court which shall decide the same on the basis of the entire record of the proceedings had in the court of origin and such memoranda and/or briefs as may be submitted by the parties or required by the Regional Trial Court. (7a)
38
•
The sublessees hold the premises subject to the right of the lessess → once the right disappears, they have nothing to stand on
•
all persons occupying the property with the consent of defendant can be ejected → the relatives, family and other privies of the defendant are bound by the judgment in an ejectment case as the party from whom they derive their possession
ATTY. CAPELLAN •
judgment in an action for ejectment is IN PERSONAM → enforceable only between the parties ◦
it is not valid against a possessor in good faith
◦
EXCEPT if the possessor is only a successor in interest, a guest, an agent
•
a judgment for ejectment CANNOT be enforced against a co-owner who was not made a party to the action
•
An ejectment case SURVIVES the death of a party → ejectment is one involving real property thus a real action → judgment in an ejectment case is conclusive between the parties and their successors in interest by title
Section 19. Immediate execution of judgment; how to stay same. — If judgment is rendered against the defendant, execution shall issue immediately upon motion unless an appeal has been perfected and the defendant to stay execution files a sufficient supersedeas bond, approved by the Municipal Trial Court and executed in favor of the plaintiff to pay the rents, damages, and costs accruing down to the time of the judgment appealed from, and unless, during the pendency of the appeal, he deposits with the appellate court the amount of rent due from time to time under the contract, if any, as determined by the judgment of the Municipal Trial Court. In the absence of a contract, he shall deposit with the Regional Trial Court the reasonable value of the use and occupation of the premises for the preceding month or period at the rate determined by the judgment of the lower court on or before the tenth day of each succeeding month or period. The supersedeas bond shall be transmitted by the Municipal Trial Court, with the papers, to the clerk of the Regional Trial Court to which the action is appealed. All amounts so paid to the appellate court shall be deposited with said court or authorized government depositary bank, and shall be held there until the final disposition of the appeal, unless the court, by agreement of the interested parties, or in the absence of reasonable grounds of opposition to a motion to withdraw, or for justifiable reasons, shall decree otherwise. Should the defendant fail to make the payments above prescribed from time to time during the pendency of the appeal, the appellate court, upon motion of the plaintiff, and upon proof of such failure, shall order the execution of the judgment appealed from with respect to the restoration of possession, but such execution shall not be a bar to the appeal taking its course until the final disposition thereof on the merits. After the case is decided by the Regional Trial Court, any money paid to the court by the defendant for purposes of the stay of execution shall be disposed of in accordance with the provisions of the judgment of the Regional Trial Court. In any case wherein it appears that the defendant has been deprived of the lawful possession of land or building pending the appeal by virtue of the execution of the judgment of the Municipal Trial Court, damages for such deprivation of possession and restoration of possession and restoration of possession may be allowed the defendant in the judgment of the Regional Trial Court disposing of the appeal. (8a)
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS •
Immediate execution is applicable ONLY when the judgment is in favor of the plaintiff → it is made necessary by the summary character of the proceeding (exception to the general rule).
•
Immediate execution is done to prevent further damage to him should the defendant continue to deprive him of the possession of the premises in litigation
•
how is immediate execution stayed? ◦
Perfecting an appeal
◦
filing a supersedeas bond approved by the MTC to pay for rents, damages and costs accruing down to the time of the judgment appealed from
◦
depositing with the RTC, during the pendency of the appeal ▪
adjudged amount of rent due from time to time under the contract
▪
in the absence of the contract –> reasonable value of the use and occupation of the property for the preceding month or period as determined by the MTC
•
the legal provision on the deposit of the rental corresponding to the previous month within the first 10 days of the succeeding month is MANDATORY
•
execution pending appeal for FAILURE to make timely deposits constitute ONLY the restoration of possession BUT NOT the payment of back rents which is guaranteed by the supersedeas bond
•
•
•
IF NON COMPLIANCE WITH SECTION 19 WAS BECAUSE because of fraud, accident, mistake or excusable negligence or the occurrence of supervening events which would bring material change in the situation of the parties, the defendant may resort to relief under Rule 38 of the rules of court → motion for immediate execution of judgment should be denied superseades bond covers ◦
rentals
◦
damages
◦
costs as fixed in the appealed judgment
even if the issue is lack of jurisdiction → requirements of section 19 should still be complied with
Section 20. Preliminary mandatory injunction in case of appeal. — Upon motion of the plaintiff, within ten (10) days from the perfection of the appeal to the Regional Trial Court, the latter may issue a writ of preliminary mandatory injunction to restore the plaintiff in possession if the court is satisfied that the defendant's appeal is frivolous or dilatory or that the appeal of the plaintiff is prima facie meritorious. (9a)
39
ATTY. CAPELLAN
•
[unlawful detainer]Art. 1674. In ejectment cases where an appeal is taken the remedy granted in Article 539, second paragraph, shall also apply, if the higher court is satisfied that the lessee's appeal is frivolous or dilatory, or that the lessor's appeal is prima facie meritorious. The period of ten days referred to in said article shall be counted from the time the appeal is perfected. (n)
•
Art. 539. Every possessor has a right to be respected in his possession; and should he be disturbed therein he shall be protected in or restored to said possession by the means established by the laws and the Rules of Court. [forcible entry]A possessor deprived of his possession through forcible entry may within ten days from the filing of the complaint present a motion to secure from the competent court, in the action for forcible entry, a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days from the filing thereof. (446a)
Section 21. Immediate execution on appeal to Court of Appeals or Supreme Court. — The judgment of the Regional Trial Court against the defendant shall be immediately executory, without prejudice to a further appeal that may be taken therefrom. (10a)
•
Prior notice of judgment or order should be served on the losing party and proof of such service accompanies the motion for execution of judgment is required for immediate execution of the judgment of the RTC
RULE 71: Contempt Section 1. Direct contempt punished summarily. — A person guilty of misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, including disrespect toward the court, offensive personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so, may be summarily adjudged in contempt by such court and punished by a fine not exceeding two thousand pesos or imprisonment not exceeding ten (10) days, or both, if it be a Regional Trial Court or a court of equivalent or higher rank, or by a fine not exceeding two hundred pesos or imprisonment not exceeding one (1) day, or both, if it be a lower court. (1a)
•
contempt of court is a DISOBEDIENCE tot he court by acting in opposition to its authority, justice and dignity
•
power to punish for contempt is INHERENT in all courts, it is for the preservation of order in judicial proceedings and to the enforcement of
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SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS judgments, orders, and mandates of the courts, and consequently, to the due administration of justice MANNER OF COMMISSION DIRECT CONTEMPT Punished summarily Section 1 of this rule
→
those
ATTY. CAPELLAN such petition, provided such person files a bond fixed by the court which rendered the judgment and conditioned that he will abide by and perform the judgment should the petition be decided against him. (2a)
INDIRECT CONTEMPT under Punished ONLY after WRITTEN CHARGE and DUE HEARING. Those enumerated under Section 3 of this rule
REMEDIES •
AS TO NATURE CIVIL CONTEMPT
CRIMINAL CONTEMPT
In failing to do something ordered to be Conduct that is directed against the done by a court or a judge in a civil case for authority and dignity of the court or of a the benefit of the opposing party therein judge acting judicially, as in unlawfully assailing or discrediting the authority and dignity of the court or judge, or in doing a duly forbidden act.
Section 3. Indirect contempt to be punished after charge and hearing. — After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt; (a) Misbehavior of an officer of a court in the performance of his official duties or in his official transactions; (b) Disobedience 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 executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto;
State is the real prosecutor offense against the party in whose behalf Offense against organized society and an the violated order is made offense against public justice which raises an issue between the public and the accused remedial in nature
punitive
(c) Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under section 1 of this Rule;
intent is immaterial – good faith or Intent is a necessary element in criminal absence of intent to violate court order is contempt, and no one can be punished for not a defense criminal contempt unless the evidence makes it clear that he intended to commit it •
Contempt proceedings are criminal in nature thus the proceedings are those adopted in criminal prosecutions
•
disrespectful language against a judge in another court is indirect contempt
•
a litigant's request that a judge inhibit himself does NOT constitute direct contempt
Section 2. Remedy therefrom. — The person adjudged in direct contempt by any court may not appeal therefrom, but may avail himself of the remedies of certiorari or prohibition. The execution of the judgment shall be suspended pending resolution of
40
Certiorari or prohibition with a stay of execution pending the resolution of the petition by the filing of a bond fixed by the court conditioned upon the performance of the judgment should the petition be decided against the petitioner
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice; (e) Assuming to be an attorney or an officer of a court, and acting as such without authority; (f) Failure to obey a subpoena duly served; (g) The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him. But nothing in this section shall be so construed as to prevent the court from issuing process to bring the respondent into court, or from holding him in custody pending such proceedings. (3a)
•
In indirect contempt, the respondent is given an opportunity to file a comment
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SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
ATTY. CAPELLAN
on the written charge and to be heard • •
a person cannot be held liable for contempt if the act which is forbidden or 2 modes of commencing a proceeding in indirect contempt required to be done is NOT clearly and exactly defined 1. order or other formal charge by the court requiring the respondent to show cause why he should not be punished for contempt (indirect contempt) there is not contempt if the order of the court which was violated was not valid or legal 2. a verified petition charging indirect contempt supporting particulars and
•
no contempt if there was a bona fide misunderstanding of the terms of the order or of the procedural rules
•
a judgment no matter how erroneous it might be should be obeyed
•
refusal to vacate does not constitute contempt, it is the re-entry to the lot that constitute contempt
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publication pending suit → well-established that newspaper publications tending to impede, obstruct, embarrass or influence the courts in administering justice pending suit constitute criminal contempt which is summarily punishable by the courts ◦
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post litigation publications → fair criticism of the court , its proceedings and its members is allowed. ◦
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exception: mere criticism or comment on the correctness or wrongness, soundness or unsoundness of the decision of the court in a pending case made inf GOOD FAITH may be tolerated
Exception: tends to bring disrespect or to scandalize the court. OR where there is clear and present danger that the administration of justice would be impeded
filing of multiple petitions for review on certiorari of the same decision → contempt
Section 4. How proceedings commenced. — Proceedings for indirect contempt may be initiated motu propio by the court against which the contempt was committed by an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt. In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings for civil actions in the court concerned. If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision. (n)
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certified true copies of the necessary documents and papers (act was committed not against a court nor a judicial officer) Section 5. Where charge to be filed. — Where the charge for indirect contempt has been committed against a Regional Trial Court or a court of equivalent or higher rank, or against an officer appointed by it, the charge may be filed with such court. Where such contempt has been committed against a lower court, the charge may be filed with the Regional Trial Court of the place in which the lower court is sitting; but the proceedings may also be instituted in such lower court subject to appeal to the Regional Trial Court of such place in the same manner as provided in section 11 of this Rule. (4a; Bar Matter No. 803, 21 July 1998)
Section 6. Hearing; release on bail. — If the hearing is not ordered to be had forthwith, the respondent may be released from custody upon filing a bond, in an amount fixed by the court, for his appearance at the hearing of the charge. On the day set therefor, the court shall proceed to investigate the charge and consider such comment, testimony or defense as the respondent may make or offer. (5a)
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Court may motu propio institute contempt proceedings
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no formal information by the prosecuting officer is necessary to begin proceedings
Section 7. Punishment for indirect contempt. — If the respondent is adjudged guilty of indirect contempt committed against a Regional Trial Court or a court of equivalent or higher rank, he may be punished by a fine not exceeding thirty thousand pesos or imprisonment not exceeding six (6) months, or both. If he is adjudged guilty of contempt committed against a lower court, he may be punished by a fine not exceeding five thousand pesos or imprisonment not exceeding one (1) month, or both. If the contempt consists in the violation of a writ of injunction, temporary restraining order or status quo order, he may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved. The writ of execution, as in ordinary civil actions, shall issue for the enforcement of a judgment imposing a fine unless the court otherwise provides. (6a)
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
ATTY. CAPELLAN
Section 8. Imprisonment until order obeyed. — When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it. (7a)
Section 9. Proceeding when party released on bail fails to answer. — When a respondent released on bail fails to appear on the day fixed for the hearing, the court may issue another order of arrest or may order the bond for his appearance to be forfeited and confiscated, or both; and, if the bond be proceeded against, the measure of damages shall be the extent of the loss or injury sustained by the aggrieved party by reason of the misconduct for which the contempt charge was prosecuted, with the costs of the proceedings, and such recovery shall be for the benefit of the party injured. If there is no aggrieved party, the bond shall be liable and disposed of as in criminal cases. (8a)
Section 10. Court may release respondent. — The court which issued the order imprisoning a person for contempt may discharge him from imprisonment when it appears that public interest will not be prejudiced by his release. (9a)
Section 11. Review of judgment or final order; bond for stay. — The judgment or final order of a court in a case of indirect contempt may be appealed to the proper court as in criminal cases. But execution of the judgment or final order shall not be suspended until a bond is filed by the person adjudged in contempt, in an amount fixed by the court from which the appeal is taken, conditioned that if the appeal be decided against him he will abide by and perform the judgment or final order. (10a)
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Judgment of acuittal in a case of contempt is not appealable
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if dismissal is a result of a motion to dismiss on a jurisdictional ground, the acquittal from the contempt charge is appealable
Section 12. Contempt against quasi-judicial entities. — Unless otherwise provided by law, this Rule shall apply to contempt committed against persons, entities, bodies or agencies exercising quasi-judicial functions, or shall have suppletory effect to such rules as they may have adopted pursuant to authority granted to them by law to punish for contempt. The Regional Trial Court of the place wherein the contempt has been committed shall have jurisdiction over such charges as may be filed therefor. (n)
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DIATO.2013400036
