Riano PDF

LEX LEONUM FRATERNITAS
Provisional Remedies / Special Civil Actions / Summary Procedure

DEAN WILLARD RIANO
PROVISIONAL REMEDIES The attachment is preliminary only

when resorted to before the finality of the
judgment to secure the property of the
Provisional Remedies are temporary,
adverse party and to prevent its
auxiliary, and ancillary remedies available to
dissipation.
a litigant for the protection and preservation
of his rights while the main action is pending.
Once the judgment has become
final and executory, the attachment
They are not main actions.
becomes a final one and is issued in order
to satisfy the judgment.
They presuppose the existence of a
principal action.
Purpose of preliminary attachment
Court which grants provisional remedies
1. seize the property of the debtor
The court grants or issues a
before final judgment and put the
provisional remedy is the court which has
same in cusodia legis even while
jurisdiction over the main action.
the action is pending for the
satisfaction of a later judgment; or
When the main action is for support
2. to enable the court to acquire
the provisional remedy of support pendente
jurisdiction over the res or the
lite may not be granted by a MTC because
property subject of the action in
the main action which is incapable of
cases where service in person or
pecuniary estimation is within the jurisdiction
any other service to acquire
of the RTC or the Family Court.
jurisdiction over the defendant
cannot be effected.
Kinds of provisional remedies
Garnishment a kind of attachment in
1. Preliminary attachment
which the plaintiff seeks to subject either
2. Preliminary injunction
the property of the defendant in the hands
3. Receivership
of a third person called the garnishee, tho
4. Replevin
his claim or the money which said person
5. Support pendent elite
owes the defendant.
The enumeration is not exclusive. Ex.
Garnishment does not involve the
Temporary custody of the child, deposit.
actual seizure of the property which
remains in the hands of the garnishee.
I. Preliminary attachment Garnishment simply impounds the

property in the garnishees possession and
Preliminary attachment - is a provisional maintains the status quo until the main
remedy issued upon order of the court where action is finally decided.
an action is pending to be levied upon the
property of the defendant so the property Jurisdiction over the garnishee is
may be held by the sheriff as security for the acquired by the mere service upon him of
satisfaction of whatever judgment may be the copy of the writ of garnishment with a
rendered in the case. notice that his debt to the defendant or
other personal property of the defendant
There is no separate action called under his control or possession is attached
preliminary attachment. pursuant to the writ.
Attachment places the property Levy on execution is the writ issued by

under custodia legis. the court after judgment by which the
property of the judgment obligor is taken
A defendant who asserts a into the custody of the court before the
counterclaim, a cross-claim or a third-party sale of the property on execution for the
claim may also avail of the remedy. satisfaction of a final judgment.
By Nikko G. Lagmay 1
San Sebastian Law
DEAN WILLARD RIANO
Cases in which preliminary attachment Requisites for the issuance of an
is proper order/writ of preliminary attachment
See sec 1 Rule 57. 1. the case must be any of those

where preliminary attachment is
The enumeration should be deemed proper;
exclusive. 2. the applicant must file a motion
(ex parte or with notice and
A mere action to collect a sum of hearing)
money is not one of those cases 3. the applicant must show by
enumerated. affidavit that there is not sufficient
security for the claim sought to be
A writ of attachment cannot be enforced
issued for moral and exemplary damages 4. the applicant must post a bond
and other unliquidated and contingent (attachment bond) executed to the
claims. adverse party.
The application for preliminary Grant of preliminary attachment,

attachment should show that the defendants discretionary
departure from the Philippines must be with
the corresponding intent to defraud the How to prevent the attachment
creditors.
If the attachment has not yet been
When to apply for a preliminary effected, the party whose property is
attachment sought to be attached, may prevent the
attachment by doing either two things:
a. at the commencement of the action, 1. by depositing with the court from
or which the writ was issued an
b. at any time before entry of amount equal to the value of the
judgment. bond fixed by the court in the
order of attachment or an amount
Ex parte issuance of writ equal to the value of the property
to be attached, exclusive of costs,
It may be issued upon notice and or
hearing. 2. by giving a counter-bond
It may be issued ex parte and even How to have the attachment

before summons is served upon the discharger
defendant.
If the attachment has already been
However, it may not be enforced and enforced, the party whose property has
may not be validly implemented unless been attached may file a motion to
preceded by a service of summons upon the discharge the attachment, with notice and
defendant, or simultaneously accompanied hearing, and after making a cash deposit
by service of summons, a copy f the or files a counter-bond.
complaint, the application for attachment,
the order of attachment and the attachment Attachment may be discharged
bond. without the need of a filing of a counter-
bond. This is possible when the party
Implementation of the writ without whose property has been attached files a
the required jurisdiction over his person is motion to set aside or discharge the
null and void. attachment and during the hearing of the
motion, he proves that:
The writ is improperly implemented if 1. the attachment was improperly or
is was served prior to the service of irregularly issued or enforced, or
summons. 2. that the bond of the attaching
creditor is insufficient, or
San Sebastian Law
DEAN WILLARD RIANO
3. that the attachment is excessive and II. Preliminary Injunction
must be discharged as to the excess,
or Preliminary injunction is an ancillary or
4. that the property is exempt from preventive remedy where a court requires
execution. a person, a party or even a court or
tribunal either to refrain (prohibitory) from
Damages for wrongful attachment or to perform (mandatory) particular acts
during the pendency of the action.
Damages may be awarded on
account of improper irregular or excessive Its sole objective is to preserve the
attachment. status quo until the merits of the case can
be heard fully.
Even the party who loses in the main
case but is able to establish a right to See sec 3 Rule 58
damages by reason of improper, irregular or
excessive attachment may be entitled to The evidence to be submitted by
damages. the plaintiff need not be conclusive and
complete. The plaintiffs are only required
An improper, irregular or excessive to show that they have an ostensible right
attachment is not validated by the fact that to the final relief prayed for in their
the attaching party prevailed in the main complaint.
action.
Findings of the trial court granting
Attachment or property under custodia or denying a petition for a writ of
legis preliminary injunction based on the
evidence on record are merely provisional
Property in custodial egis may be until after the trial on the merits of the
subject to a writ of preliminary attachment. case shall have been concluded.
The attachment on a property Main action for injunction

already in custodial egis merely operates as distinguished from preliminary
a lien and does not mean that the attaching injunction
court will wrest custody of the property from
another court. The former is an independent
action. The latter can only exist as an
There is no rule which prohibits the incident to a principal action.
attachment of a property previously
attached. The main action seeks a judgment
embodying a final injunction. A preliminary
What will arise will be a priority in injunction seeks to preserve the status quo
the liens which means that the first until the merits are heard.
attachment will have priority over
subsequent attachments. Purpose of preliminary injunction
Proceedings where property attached is To preserve the status quo or to

claimed by a third person prevent future wrongs in order to preserve
and protect certain interests or rights
He may avail of the remedy called during the pendency of the action.
terceria by making an affidavit of his title
thereto or his right to possession thereof, When the injunction sought is
stating the grounds of such right or title. mandatory, a writ of preliminary injunction
tends to do more than to maintain the
The third party claimant is not status quo because it commands the
precluded by the rules from vindicating his performance of specific acts and is issued
claim to the property in the same or in a only in cases of extreme urgency and
separate action. where the right of the applicant is clear.
San Sebastian Law
DEAN WILLARD RIANO
Preliminary injunction distinguished acts and if not enjoined would work
from final injunction injustice to the applicant
4. the applicant must post a bond,
An injunction is preliminary when it unless exempted
refers to the writ secured before the finality
of the judgment. Quantum of evidence required
It is final when it is issued as a The evidence to be submitted by

judgment making the injunction permanent. the plaintiff need not be conclusive and
It perpetually restrains a person form the complete.
continuance or commission of an act and
confirms the previous preliminary injunction. The plaintiffs are only required to
show that they have an ostensible right to
Prohibitory and mandatory injunctions the final relief prayed for in their
complaint.
Prohibitory injunction when its purpose
is to prevent person from the performance Mere prima facie evidence is
of a particular act. Here, the acts has not yet needed.
been performed.
Notice and hearing
Mandatory injunction when its purpose
is to require a person to perform a particular A writ of preliminary injunction
act. Here, the act has already been cannot be issued without prior notice and
performed and this act has violated the hearing.
rights of another.
Subject to the rules governing
Stage of proceedings when granted matters of extreme urgency, it cannot be
issued ex parte.
It is granted at any stage of the
proceedings prior to the judgment or final Temporary Restraining Order
order.
It if shall appear from facts shown
Court who issues preliminary injunction by affidavits or by verified application that
great or irreparable injury would result to
It must be applied for and issued by the applicant before the matter can be
the court where the action is pending. heard on notice, the court in which the
application for preliminary injunction was
If the action is pending in the CA or made ma issue a TRO ex parte for a period
SC, it may be applied for and issued by such not exceeding 20 days from service to the
courts or any member thereof. This is a party sought to be enjoined.
situation where a member of the court may
issue a writ of preliminary injunction without Within said 20 days, the court shall
the participation of other members of the determine whether or not the preliminary
court. injunction shall be granted and then shall
issued the corresponding order.
Requisites for the issuance of a writ of
preliminary injunction or temporary The applicant shall file a bond,
restraining order unless exempted by the court.
1. there must be a verified application If the matter is of extreme

2. the applicant must establish that he urgency, the executive judge of a multi-
has a right to relief, or a right to be sala court or the presiding judge of a
protected, and the act against which single-sala court may issue a TRO effective
the injunction is directed is violative for only 72 hours from issuance, not
of such right service.
3. the applicant must establish that
there is a need to restrain the When the court is a multi-sala
commission or continuance of the court, the TRO is not to be issued by any
San Sebastian Law
DEAN WILLARD RIANO
other judge than the executive judge of said been issued against the respondent
court. tribunal or officer.
2. when a petition for relief under
The rule against non-extendibility of Rule 38 is filed. Assuming that the
the 20 day effectivity of the TRO is absolute prevailing party has not yet filed a
if issued by the RTC. motion for an order of execution,
the pendency of a petition for relief
What is a TRO and how does it differ will not prevent the execution of
from a writ of preliminary injunction? judgment.
3. a preliminary mandatory injunction
A TRO is an order to maintain the may be availed of to restore the
status quo between or among the parties plaintiff on his possession in a
until the determination of the prayer for a complaint for forcible entry or
writ of preliminary injunction. unlawful detainer.
A writ of preliminary injunction Examples in which

cannot be granted without notice and injunction/preliminary injunction will
hearing. A TRO may be granted ex parte. not be issued
Issuance of TRO by CA and SC 1. cases growing out of a labor

dispute. It is the NLRC that issues
A TRO may be issued by the CA or an injunction.
any member thereof. It shall be effective for 2. RA no. 8735 and PD 1818
60 days from notice to the party sought to regarding execution or
be enjoined. implementation of government
infrastructure projects, essential
60 day lifetime of the TRO is not government projects, including
extendible and automatically expires. No arrastre and stevedoring
judicial declaration that it has expired is operations
necessary. 3. against the Presidential Agrarian
Reform Council or any of its
A second TRO by the CA after the agencies in any case connected
expiration of the 60 day period is a patent with the application,
nullity. implementation or enforcement of
the CARP.
Nature of an order granting a 4. a court may not interfere by
preliminary injunction injunction with the orders of
another court of co-equal rank or
The issuance of a writ of preliminary decrees of a court with concurrent
in junction rests entirely within the discretion or coordinate jurisdiction.
of the trial court and is generally not 5. RTC may not issue injunction
interfered with except in cases of manifest against quasi-judicial bodies of
abuse. equal rank such as the Social
Security Commission, and SEC.
An order granting a writ of 6. RTC may not issue injunction
preliminary injunction is an interlocutory against IPO, COMELEC, Workmens
order, hence, not appealable. The remedy is Compensation Commission.
certiorari. 7. no court shall have authority to
grant an injunction to restrain the
Examples of cases justifying the collection of any national internal
issuance of a writ of preliminary revenue tax, fee or charge imposed
injunction by the code.
8. injunction will not lie to restrain a
1. when a petition for certiorari under criminal prosecution except:
Rule 65 is filed. The filing of a a. to afford protection to the
petition does not interrupt the constitutional rights of the
principal action unless a TRO or a accused;
writ of preliminary injunction has
San Sebastian Law
DEAN WILLARD RIANO
b. when necessary for the Rule 59 presupposes that there is
orderly administration of an action and that property subject of the
justice or to avoid oppression action requires its preservation.
or multiplicity of actions;
c. when double jeopardy is In an action for the foreclosure of a
clearly apparent; mortgage, the court may appoint a
d. where the charges are receiver if it can be shown that the
manifestly false and property mortgaged is in danger of being
motivated by lust for wasted and dissipated or materially
vengeance; or injured, and that its value is probably
e. there is no prima facie case insufficient to discharge the mortgage
against the accused and a debt.
motion to quash on that
ground has been denied. Receivership is not available in a
mere suit for collection of a sum of money.
How to dissolve a writ of preliminary It is available when the property or fund
injunction or a restraining order that is the subject of the litigation is in
danger of being lost, removed or materially
The party may file a motion to injured.
dissolve the injunction or TRO with notice
and hearing of the motion upon showing of Court that can grant receivership
affidavits that the person enjoined would
suffer irreparable damage while the applicant By the court where the action is
can be fully compensated for such damages pending, by the CA, SC, or any member of
he may suffer. the CA or SC.
The movant must also file a bond Procedure for appointment or receiver
conditioned upon the payment of all
damages which the applicant may suffer by 1. A verified application must be filed
the dissolution of the injunction or by the party applying for the
restraining order. appointment of a receiver;
2. the applicant must have an interest
If it appears that the extent of the in the property or funds subject of
preliminary injunction or restraining order is the action;
too great, it may be modified. 3. the applicant must show that the
property or funds is in danger of
being lost, wasted or dissipated;
III. RECEIVERSHIP 4. the application must be with notice
and must be set for hearing;
Nature 5. before issuing the appointment of a
receiver, the court shall require the
The purpose of receivership as a applicant to post a bond in favor of
provisional remedy is to protect and the adverse party;
preserve the rights of the parties during the 6. the receiver shall also file a bond;
pendency of the main action, during the 7. before entering his duties, the
pendency of an appeal or as an aid in the receiver must be sworn to perform
execution of a judgment when the writ of his duties faithfully.
execution has been returned unsatisfied.
Powers of receiver
The receivership in Rule 59 is
directed to the property which is the subject See sec 6 Rule 59.
of the action and does not refer to the
receivership authorized under the banking Investment of funds by receiver
laws and other rules or laws.
A receiver may not invest funds
without an order from the court and
without the written consent of the parties
to the action.
San Sebastian Law
DEAN WILLARD RIANO
taken for tax assessment, or
Suits against a receiver otherwise in custodia legis.
5. the affidavit must state the actual
No action may be filed against a market value of the property
receiver without leave of the court which 6. the applicant must give a bond,
appointed him. executed to the adverse party and
double the value of the property.
Appointment of a party as receiver
Replevin cannot be available when
A party to a litigation is supposed to the property is in custodia legis or has
he a disinterested person hence, neither been seized pursuant to law.
party to the litigation should be appointed as
a receiver without the consent of the other. How adverse party can seek the return
of the property
IV. REPLEVIN
If within 5 days from the taking of
Replevin may be a main action or a the property by the sheriff, the adverse
provisional remedy. party decides to have the property back,
he may require the return thereof by:
As a principal action, its ultimate goal a. filing with the court where
is to recover personal property capable of the action is pending a
manual delivery wrongfully detained by a redelivery bond, executed
person. to the applicant, in double
value of the property
The main action for replevin is conditioned upon the
primarily possessory in nature and generally payment of such sum as
determines nothing more than the right of may be recovered against
possession. the adverse party, and
b. by serving a copy of such
Seeking to have possession of the bond on the applicant.
property prior to the determination of the
action is the provisional remedy of replevin
and not the main action for replevin. V. Support Pendente Lite
Procedure for the application for Support pendent elite is an amount

replevin of support provisionally fixed by the court
in favor of the person or persons entitled
1. a party praying for the provisional thereto during the pendency of an action
remedy of replevin must file an for support.
application for a writ of replevin. His
application for the writ must be filed It may be granted in either two
at the commencement of the action instances:
or at any time before the defendant 1. action for support; or
answers. 2. in a criminal action where civil
2. the application must contain an liability includes support for the
affidavit where the applicant offspring provided the civil aspect
particularly describes the property has not been waived, reserved or
that he is the owner of the property instituted prior to its filing.
or that he is entitled to the
possession. It may be filed at the
3. the affidavit must state that the commencement of the action or at any
property is wrongfully detained by time prior to the judgment or final order.
the adverse party, alleging therein
the cause of the detention. The application requires a hearing.
4. the affidavit must state that the
property has not been distrained or The adverse party must comply
with the order to give support pendente
lite, if he does not, an order of execution
San Sebastian Law
DEAN WILLARD RIANO
shall be issued by the court either motu It is filed by the person against
proprio or upon motion. He may also be whom the conflicting claims are made. He
liable for contempt. shall pay the docket fees.
When the judgment finds that the The petitioner need not have a
person giving support is not liable therefore, cause of action. The petition cannot be
the court shall order the recipient to make a dismissed on the ground that there is
restitution of what has been received with failure to state a cause of action.
legal interest from the date of actual
payment. Should the recipient fail to do so, Upon filing of the complaint and
the person who gave the support may file an the payment of the docket feds, the court
action against the person legally obliged to shall issue an order requiring the
give support. conflicting claimants to interplead with one
another.
In that same order, the court may

SPECIAL CIVIL ACTIONS include an order directing that the subject
matter of the action be paid or delivered to
Preliminaries the court.
Although a SCA and an ordinary civil Within the time for filing an
action are governed by the rules of ordinary answer, each claimant may file a motion to
civil actions, there are certain rules that are dismiss. The ground relied upon may be
applicable only to SCA. any of the grounds in Rule 16 or, as
provided in Rule 62, impropriety of the
An ordinary civil action must be action for interpleader.
based on a cause of action.
Court with jurisdiction
The cause of action as required and
defined in an ordinary civil action finds no If the subject matter is personal
application to the SCA of declaratory relief. property, valued not more than 300k or
400k, the MTC has jurisdiction.
I. INTERPLEADER If the subject matter is real

property with an assessed value not more
An interpleader is a SCA filed by a than 20k or 50k, the MTC has jurisdiction.
person against whom two conflicting claims
are made upon the same subject matter and II. DECLARATORY RELIEF AND
over which he claims no interest, to compel OTHER SIMILAR REMEDIES
the claimants to interplead and to litigate
their conflicting claims against themselves. Preliminaries
Requisites: Rule 63 covers 2 types of actions;

1. there must be 2 or more claimants a. petition for declaratory relief,
with adverse or conflicting interests b. similar remedies.
to a property in the custody or
possession of the plaintiff; The similar remedies are:
2. the plaintiff in an action for 1. action for reformation of
interpleader has no claim upon the instrument;
subject matter of the adverse claims 2. action to quiet title;
or if he has an interest at all, such 3. action to consolidate ownership
interest is not disputed by the under Art 1607
claimants;
3. the subject matter of the adverse subject matter in a petition for
claims must be one and the same. declaratory relief;
1. deed
2. will
San Sebastian Law
DEAN WILLARD RIANO
3. contract or other written instrument The question raised is a question of
4. statute construction or validity arising under an
5. executive order or regulation instrument or statute.
6. ordinance
7. any other governmental regulation. The judgment in a declaratory
relief is said o stand by itself and no
The enumeration of the subject executory process follows as of course.
matter is exclusive. An action not based on
any of the enumerated subject matters Petitioner and other parties
cannot be the proper subject of declaratory
relief. If the subject matter is a deed,
will, contract or other written instrument,
Even if the subject is one the petitioner is the person interested in
enumerated under the Rules, where the the same. Ex. Parties, assignees, heirs.
contract or statute is clear in its terms and
there is no doubt as to its meaning and If it be a statute, executive order,
validity, a petition for declaratory relief is regulation or ordinance, the petitioner is
improper. There would be no need for one whose rights are affected by the same.
construction or a declaration of rights
thereunder. Where the action involves the
validity of a local government ordinance,
Whether or not the student is to be the corresponding prosecutor or attorney
conferred with Latin honors is not a proper of the LGU involved shall be similarly
subject of the petition. notified and entitled to be heard.
Court with jurisdiction If such ordinance is alleged to be

unconstitutional, the sol-gen shall also be
RTC. It is incapable of pecuniary notified and entitled to be heard.
estimation.
Filing before any breach or violation;
It would be an error to file the justiciable controversy
petition with the SC which has no original
jurisdiction to entertain a petition for The petition for declaratory relief is
declaratory relief. filed before there occurs any breach or
violation of the deed, contract, statute,
Purpose of petition ordinance or executive order or regulation.
It will not prosper when brought after a
To secure an authorative statement contract or a statute has already been
of the rights and obligations of the parties breached or violated.
under a contract or a statute for their
guidance in the enforcement or compliance If there has already been a breach,
with the same. the appropriate civil action, not declaratory
relief, should be filed.
To seek for a judicial interpretation of
an instrument of\r for a judicial declaration When the breach however occurs
of a persons rights under a statute and not not before the filing of the petition for
to ask for affirmative reliefs like injunction, declaratory relief but after the action has
damages or any other relief beyond the been constituted and during its pendency,
purpose of the petition as declared under the the action is not to be dismissed but may
rules. be converted into an ordinary action and
the parties shall be allowed to file such
It is not brought to settle issues pleadings as may be necessary or proper.
arising from a breach because after the
breach of the contract or statute, the petition Summary of requisites for the petition
can no longer be brought.
a. thee must be a justiciable
controversy;
San Sebastian Law
DEAN WILLARD RIANO
b. the controversy must be ownership of the property in the person of
between persons whose the vendee or buyer but for the
interests are adverse; registration of the property.
c. the party seeking the relief
must have a legal interest in The lapse of the redemption period
the controversy; and without the seller a retro exercising his
d. that the issue is ripe for right of redemption, consolidated
judicial determination. ownership or title upon the person of the
vendee by operation of law. Art 1607
Reformation of an instrument requires the filing of the petition to
consolidate ownership because the law
An action for reformation is not an precludes registration of the consolidated
action brought to reform a contract but to title without a judicial order.
reform the instrument evidencing the
contract. Quieting of title
The action for reformation The action is brought to remove a

presupposes that there is nothing wrong in cloud on title to real property or any
the contract. interest therein.
The contract is to be reformed The plaintiff need not be in possession of

because despite the meeting of minds, the the real peal property before he may bring
instrument which is supposed to embody the the action as long as he can show that he
agreement of the parties does not reflect has a legal or an equitable title to the
their true agreement by reason of mistake, property which is the subject matter of the
fraud, inequitable conduct or accident. action.
Where the consent of a party has

been vitiated, the remedy is not to bring an
action for reformation of the instrument but III. REVIEW OF JUDGMENTS
to file an action for annulment of the AND FINAL ORDERS OR
contract. RESOLUTIONS OF THE
COMELEC AND THE COMISSION
Reformation of the instrument
ON AUDIT
cannot be brought to reform any of the
following:
Remedy
1. unconditional simple donations inter
vivos;
A party aggrieved by the
2. wills; or
judgment, final order or resolution of the
3. when the agreement is void.
COMELEC or Commission on Audit may file
a petition for certiorari under Rule 65 with
Consolidation of ownership
the SC.
Under the law, a contract of sale may
The petition cannot question the
be extinguished either by legal redemption or
findings of fact of the commission involved
conventional redemption.
where such finding are supported by
substantial evidence. Such findings when
Where redemption is not made within
so supported are final and non-reviewable.
the period agreed upon, in case the subject
matter of the sale is real property, art 1607
The petitioner must anchor the
of the CC provides that consolidation of
petition on jurisdictional grounds since the
ownership in the vendee shall not be
mode of review is under Rule 65.
recorded in the Registry of Property without
a judicial order, after the vendor has been
The period for filing of the petition
duly heard.
for certiorari assailing the judgment of the
COMELEC and COA is shorter. Under 64,
The action to consolidate ownership
is not for the purpose of consolidating the
San Sebastian Law
DEAN WILLARD RIANO
the petition shall be filed within 30 days from Certiorari is an extraordinary
notice of judgment. Under 65, 60 days. remedy available only when there
is no appeal, nor any plain, speedy or
The petition shall contain a sworn adequate remedy in the ordinary course of
certification against forum shopping. law.
While the filing of a MR or a MNT

shall interrupt the period for the filing of the Purpose and function of certiorari
petition, the filing of the petition itself shall A petition for certiorari under Rule
not have the effect of staying the judgment, 65 is intended to rectify errors of
final order or resolution of the COMELEC or jurisdiction but not errors of judgment.
the COA, unless the SC shall declare
Only jurisdictional questions may
otherwise.
be raised including matters of grave abuse
of discretion which are equivalent to lack of
A TRO or writ of preliminary
jurisdiction.
injunction must be obtained to prevent the
execution of the judgment. It is designed to correct errors of
jurisdiction.
The function of a writ of certiorari
IV CERTIORARI, PROHIBITION is to keep inferior courts within the bounds
AND MANDAMUS (65) of their jurisdictions or to prevent them
from committing such a grave abuse of
A. CERTIORARI discretion amounting to excess of
jurisdiction.
Nature of the remedy
A petition for certiorari under Rule 65 Certiorari not substitute for lost
is a special civil action. appeal
It is an original action independent It is a remedy of last recourse and
from the principal action. is limited form of review.
It is not part or continuation of the Certiorari cannot be allowed when
trial which resulted in the rendition of the a party to a cse fails to appeal a judgment
judgment complained of. desptie the availability of that remedy,
certiorari not being a substitute for lost
It is not a mode of appeal where the
appeal.
appellate court reviews the errors of fact or
law committed by the lower court.
The issue under Rule 65 is whether When certiorari is available despite
or not the lower ocurt acted without or in the loss of appeal
excess of jurisdiction or with grave abuse of 1. when public welfare and the
discretion. advancement of public policy dictates;
This remedy is extraordinary and its 2. when the broader interest of justice so
use is restricted to truly extraordinary cases. requires;
The filing of a petition for certiorari 3. when the writs issued are null and
does not interrupt the course of the principal void;
action nor the running of the reglementart
periods involved in the proceeding, unless an 4. when the questioned order amounts to
application for a restraining order or a writ of an oppressive exercise of judicial
preliminary injunction to the appellate court authority.
is granted.
It does not interrupt the Requisites for a petition for certiorari
reglementary period for the filing of an
1. that the petition is directed against a
answer.
tribunal, board or officer exercising
It does not interrupt the courts of the judicial or quasi0judicial functions;
case where there is no writ of injunction.
2. that such tribunal, board or officer has
San Sebastian Law
DEAN WILLARD RIANO
acted without or in excess of jurisdiction
or with grave abuse of discretion; Grave abuse of discretion
3. that there is no appeal nor any plain, Certiorari will not lie when there is
speedy and adequate remedy in the a mere abuse of discretion by the tribunal,
ordinary cours of law; board or officer exercising judicial or quasi-
4. that petition shall be accompanied by a judicial functions.
certified true copy of the judgment, Such kind of abuse does not
order or resolution subject thereof, amount to lack or excess of jurisdiction.
copies of all pleadings and documents
relevant and pertinent thereto, and a For certiorari to lie, the abuse must
sworn certification of non-forum be "grave".
shopping; By GRAVE ABUSE of discretion is
5. that the petition must be verified and meant by capricious and whimsical
filed in the proper court within the exercise of judgment as is equivalent to
reglementary period; lack of jurisdiction.
6. that the petitioner must, as a general It means such capricious and
rule, file the petition after a prior motion whimsical exercise of judgment by the
for reconsideration. tribunal exercising judicial or quasi-judicial
functions as to amount to lack of power.
Judicial and quasi-judicial functions

Absence of appeal or any plain, speedy
A petition for certiorari is directed and adequate remedy
against a tribunal, borad or officer exercising
judicial or quasi-judicial functions. although the extraordinary remedy
of certiorari is not proper when an appeal
If the board, tribunal or officer dose is available, by way of execption, it may be
not exercise either a judicial or quasi-judicial allowed when it can be shown that appeal
functions. Certiorari will not lie against its would be inadequate, slow, insufficient,
acts. and will not promptly relieve a party from
A petition for certiorari is availanle the injurious effects of the order
against administrative agencies. complained of.
Certiorari cannot co-exist with an
Jurisdictional Issue appeal, these remedies being mutually
exclusive.
A petition for certiorari must be
based on jurisdictional grounds because as Exception: Although the
long as the respondent acted with extraordinary remedy of certiorari is not
jurisdiction, any erroe committed by him or it proper when an appeal is available, it may
in the exedrcvise thereof will amount to be allowed when it can be shown that
nothing more than an error of judgment appeal would be inadequate, slow,
which may be reviewed or corrected by insufficient, and will not prompltly relieve a
appeal. party from the injurious effects of the
order compained of.
In a petition for certiorari, the SC
does not sit as an arbiter of facts. It is not its
function to re-examine every appreciation of Excess of jurisdiction
facts made by the trial and appellate courts There is excess of jurisdiction
unless the evidence on record does not where the respondent, having clothed with
support their findings or the judgment is the power to determine the case,
based on a misappreciation of facts. oversteps his authority as determined by
A petition for certiorari does not law.
include an inquiry as to the correctness of
the evaluation of the evidence.
Necessity for a motion for
Factual issues are not proper reconsideration
subjects of a petition for certiorari.
San Sebastian Law
DEAN WILLARD RIANO
The filing of a motion for The person aggrieved may file a
reconsideration is a condition sine qua non to verified petition in the proper court alleging
the filing of a petition for certiorari the facts with certainty and praying that
The rule requiring a prior MR is judgment be rendered annulling or
intender to allow the tribunal, board or modifying the proceedings of the tribunal,
officer to rectify the errors it may have board or officer, and granting such
lapsed into. incidental reliefs as law and justice may
require.
Filing a petition for certiorari without
first moving for reconsideration of the The petition shall be accompanied
assailed resolution generally warrants the by a certified true copy of the judgment,
outright dismissal of the petition. order or resolution subject of the petition,
copies of all relevant pleadings and
documents, and a sworn certification of
Exceptions: non-forum shopping.
1. where the order is a patent nullity, as The petition is to be filed within 60
where the court a quo has no days from notice of the judgment, order or
jurisdiction; resolution.
2. where the questions raised in the In case a MR or a motion for NT is timely
certiorari proceeding have been duly filed, whether such motion is required or
raised and passed by the lower court, or not, the 60 day period shall be counted
are the same as those raised and passed from notice of the denial of said motion.
upon in the lower court; No extension of time to file the
3. where there is an urgent necessity for petition shall be granted except for
the resolution of the questions and any compelling reason and in no case
further delay would prejudice the exceeding 15 days.
interests of the government or the
petitioner;
Where to file the petition
4. where the subject matter of the action is
perishable; RTC, CA, Sandiganbayan, Sc.
5. where under the circumstances, a MR If the petition relates to the acts or

would be useless; omissions of a lower court or a corporation,
board, or officer of person, then the
6. where petitioner was deprived of due petition shall be filed with the RTC
process and there is extreme urgency for exercising jurisdiction over the territorial
relief; area as defined by the SC.
7. where, in a criminal case, relief from The petition may also be filed in
order of arrest is urgent and the granting the CA whether or not the same is in aid of
of such relief by the court is improbable; its appellate jurisdiction.
8. where the proceedings in the lower court If it involves the acts or omissions
are a nullity for lack of due process; of a quasi-judicial agency, the petition shall
9. where the proceedings was ex parte or in be filed in and cognizable only by the CA,
which the petitioner had not opportunity unless otherwise provided by law or by the
to object; Rules.
10. Where the issue raised is one purely of The petition may be filed in the
law or when public interest is involved. Sandiganbayan if it is in aid of its appellate
jurisdiction.
The exceptions to the rule in a
certiorari proceeding, dispensing with a
motion for reconsideration prior to the filing Parties to the petition
of a MR, do not apply to election cases,
where a MR is mandatory to elevate the case The petition shall be filed by the
to the COMELEC en banc. aggrieved person.
It pertains to the person who was a
party in the proceeding before the lower
How to avail of the remedy
San Sebastian Law
DEAN WILLARD RIANO
court and not any person who feels injured manifestly for delay, or that the questions
by the lower courts order. raised therein are too unsubstantial to
Where the petition relates to the acts require consideration, the court may
or omissions of a judge, court, quasi-judicial dismiss the petition.
agency, tribunal, corporation, board, officer
or person, the petitioner shall join as private Necessity for a writ of injunction;
respondent/s, the persons interested in certiorari not sufficient
sustaining the proceedings in the court.
The private respondent/s should The filing of a petition for certiorari
appear and defend not only in his or their does not interrupt the course of the
own behalf but also in behalf of the public principal action nor the running of the
respondent/s affected by the proceedings. reglamentary periods involved in the
proceeding, unless an application for a
If costs are awarder in favor of the restraining order or a writ of preliminary
petitioner, such costs shall be against the injunction to the appellate court is granted.
private respondent/s only and not against
the public respondent/s. No petition for certiorari in a summary
The public respondent/s shall not proceeding
appear in or file an answer or comment to
the petition or any pleading therein, unless In a summary proceeding, petitions
specifically directed by the court where the for certiorari, prohibition or mandamus
action is pending. against an interlocutory order of the court
are not allowed.
Order to comment
If the petition is sufficient in form B. PROHIBITION
and substance to justify such process, the
court shall issue an order requiring the Prohibition is an extraordinary writ
respondents to comment on the petition commanding a tribunal, corporation, board
within 10 days from receipt of a copy or person, whether exercising function that
thereof. are judicial, quasi-judicial or ministerial to
desist from further proceedings when said
In petitions for certiorari before the proceedings are without or in excess of its
SC and the CA, the respondent may also be jurisdiction, or with grave abuse of its
required to file a comment to the petition discretion, there being no appeal or any
and not a motion to dismiss. other plain, speedy and adequate remedy
Thereafter, the court may require the in the ordinary course of law.
filing of a reply and such other responsive or
other pleadings as it may deem necessary The purpose of prohibition is to
and proper. secure an order to command the
respondent tribunal, board or corporation
or officer to desist from further
Proceedings after comment; Relief proceedings in the action.
After the comment or other pleadings
are filed, the court may hear the case or Stated in another way, the purpose
require the parties to submit memoranda. of prohibition is to prevent an
encroachment, excess usurpation or
If after such hearing or submission of assumption of jurisdiction on the part of
memoranda, the court finds the allegations the tribunal, corporation, board or officer.
of the petition are true, it shall render
judgment for the relief prayed for or to which It bears in stressing that an action
the petitioner is entitled. for prohibition or certiorari, for that matter,
The relief means that the judgment, does not divest the inferior or trial court of
order or resolution subject of the petition is its jurisdiction validly acquired over the
annulled or modified. case pending before it; it is merely an
invocation for the exercise of its
If the court finds the petition to be
supervisory power over the lower court to
patently without merit, prosecuted
San Sebastian Law
DEAN WILLARD RIANO
insure that the lower court acts within its resolution or proceedings of the
jurisdiction. public respondent. The purpose of
prohibition is to command the
Prohibition, not mandamus is the respondent to desist from further
proper remedy when a motion to dismiss is proceedings.
wrongfully denied.
B. MANDAMUS
Requisites
Mandamus is an extraordinary writ
a. the petition must be directed commanding a tribunal, corporation, board
against a tribunal, corporation, or or person, to an act required to be done;
board or person exercising a. when it or he unlawfully neglects
judicial, quasi-judicial, or the performance of an act which
ministerial functions; the law specifically enjoins as a
b. the tribunal, corporation, board duty, and there is no other plain,
or person must have acted speedy and adequate remedy on
without or in excess of the ordinary course of law.
jurisdiction or with grave abuse b. It is also available when one
of discretion amounting to lack of unlawfully excludes another form
jurisdiction; the use and enjoyment of a right or
c. there is no appeal or any other office to which the other is entitled.
plain, speedy, and adequate
remedy in the ordinary course of The principal function of
law; mandamus is to command, not to inquire,
d. the petition for prohibition shall expedite or adjudicate.
be accompanied by a certified
true cop of the judgment or Mandamus does not establish a
order subject of the petition, legal right, but merely enforces one that is
copies of all pleadings and already clearly established.
documents relevant and
pertinent thereto, and a sworn Requisites
certification of non-forum
shopping. 1. the plaintiff has a clear legal right
to the act demanded. It will never
be issued in doubtful cases.
Prohibition vs. Injunction 2. it must be the duty of the
defendant to perform the act
An injunction is directed against a because the same is mandated by
party in an action. Prohibition is directed to law;
the court or tribunal directing it to refrain 3. the defendant unlawfully neglects
from performance of acts which it has no the performance of the duty
jurisdiction to perform. enjoined by law;
4. the act to be performed is
Prohibition distinguished from certiorari ministerial, not discretionary;
5. there is no appeal or an other
1. A writ of certiorari seeks to annul a plain, speedy and adequate
judicial or a quasi-judicial act. A writ remedy in the ordinary course of
of prohibition is directly not only to a law.
judicial or a quasi-judicial act but
even to a ministerial act.
2. a writ of certiorari is directed to the Ministerial act or duty
action of the court which is sought to
be annulled. A writ of prohibition is For mandamus to lie, the act must
directed to the court itself to restrain not only be ministerial but must also be a
it from further proceeding with the duty enjoined by law, a duty which the
case. tribunal or person unlawfully neglects to
3. the purpose of certiorari is to annul perform.
or modify the judgment, order,
San Sebastian Law
DEAN WILLARD RIANO
Mandamus applies only to acts and legal duty while the
required by law to be done. purpose of injunction is for the
defendant to either refrain
The tenor of the rule excludes from from an act or to perform not
its operation the performance of a necessarily a legal or
contractual duty. ministerial duty; and
d. the purpose of mandamus is to
Mandamus is proper to compel the perform positive legal duty
payment of the benefits to which an and not to undo what has been
employee is entitled under the law such as done.
holiday pay.
Mandamus vs. Quo Warranto
It is not proper against a school or
an official with a duty that involves the Recall that mandamus also is
exercise of discretion like on the matters of available when one is unlawfully excluded
admission of students or to complete an from the use or enjoyment of an office.
academic institution to allow the graduation This is similar to a quo warranto
of a student who has failed to comply with proceeding in this respect although in
the academic rules of the school. mandamus, the suit is brought against the
person who is responsible for excluding the
Mandamus will not lie to compel a petitioner from office. The respondent does
prosecutor to file an information. not have to usurp, intrude into or hold the
office. Quo warranto is brought against the
Mandamus will lie to compel holder of the office, who is the person
execution of a judgment, because execution claiming the office as against the
of a final and executory judgment is a matter petitioner, not necessarily the one who
of right. excludes the petitioner.
Discretionary acts not compellable by

mandamus V. QUO WARRANTO
Mandamus does not lie to compel the
performance of a discretionary duty. Nature and purpose
Mandamus will not issue to control or Quo warranto literally means by

review the exercise of discretion of a public what authority and the object is to
officer where the law imposes upon said determine the right of a person to the use
public officer the right and duty to exercise or exercise of a franchise or office and to
his judgment in reference to any matter on oust the holder from enjoyment, if his
which he is required to act. It is his claim is not well-founded, or if he has
judgment that is to be exercised and not that forfeited his right to enjoy the office.
of the court.
It is commenced by a verified
Reconstitution is not a ministerial petition against the following:
act. 1. a person who usurps a public
office, position or franchise;
Mandamus vs. injunction 2. a public officer who performs an
act constituting forfeiture of a
a. mandamus is a special civil public office; or
action while injunction is an 3. an association which acts as a
ordinary civil action; corporation within the Philippines
b. mandamus is directed against a without being legally incorporated
tribunal, corporation, board or or without lawful authority to do
officer while injunction is directed so.
against a litigant;
c. the purpose of mandamus is for The petitioner
the tribunal, corporation , board
or officer to perform a ministerial
San Sebastian Law
DEAN WILLARD RIANO
As a general rule, the Solicitor Quo warranto in an elective office
General. against quo warranto in appointive
office distinguished
But the petition may be commenced
by a private person in his own name where 1. in the first, the governing law is
he claims to be entitled to the public office or the election law; in the second, the
position alleged to have been usurped or rules that govern are the Rules of
unlawfully held or exercised by another. Court.
2. in the first, the issue is the
Jurisdiction and venue eligibility of the person elected; in
the second, the issue is the legality
SC, CA, Sandigan (in its appellate of the occupancy of the office b
jurisdiction) or RTC over the territorial area virtue of a legal appointment
where any of the respondents reside. 3. in the first, the petition is filed
within 10 days after the
If filed by the SolGen, it may be filed proclamation, in the second, it is
in the RTC of Manila. within 1 year from the time the
cause of ouster, or the right of the
A quo warranto proceeding is one of petitioner to hold office arose.
the instances where exhaustion of 4. in the first, the petitioner ma be
administrative remedies is not required. any voter, even if he is not entitled
to the office; in the second, the
Quo warranto under the Omnibus Election petitioner is the person entitled to
Code the office.
Under the OEC, a quo warranto Quo warranto proceedings and

proceeding may be instituted with the election protests
COMELEC by any voter contesting the
election f any member of Congress, regional, The cause of action in the first is
provincial or city officer within 10 days after based on the eligibility or lack of it of the
the proclamation of the results of the candidate or his being loyal or disloyal to
election. the Republic. The cause of action in an
election protest is the irregularity in the
The ground relied upon shall be: conduct of the elections.
1. ineligibility to the positions; or
2. disloyalty to the Republic of the Quo warranto against corporations
Philippines.
The petition may be brought only
If the petition is brought against a against a de facto corporation, not a de
municipal official, the petition for quo jure corporation.
warranto
http://www.yo VI Expropriation (67)
utube.com/watc Exercise by LGUs
h?v=IbO- 1.
Requisites:
an ordinance is enacted authorizing
the chief executive to exercise the
SxHLY7c must be brought in power of eminent domain or
pursue expropriation proceedings
the appropriate RTC.
over a particular property;
2. the power of eminent domain is
If it is against any barangay official,
exercised for public use, purpose
the petition must be brought before the
or welfare, or for the benefit of the
appropriate MTC.
poor and the landless;
San Sebastian Law
DEAN WILLARD RIANO
3. thee is payment of just appropriate the same for public use or
compensation, as required under the purpose.
Constitution and other pertinent
laws; Multiple appeals are permitted and
4. a valid and definite offer has been the reglamentary period is 30 days.
previously made to the owner of the
property sought to be expropriated, Just compensation
buy said offer was not affected.
Sec. 4 of Rule 67 provides that the
Stages just compensation shall be determined as
of the date of the taking of the property or
1. determination of the authority of the the filing of the complaint, whichever came
plaintiff to expropriate its necessity first.
and the public purpose;
2. determination of just compensation Nonpayment of just compensation;
through the court-appointed effect
commissioners.
Non payment of just compensation
Entry upon the property does not entitle the private landowner to
recover possession of the expropriated
Under sec. 2 of rule 67, in order to lots.
be entitled to the possession of the property
subject of the complaint for expropriation, However in cases where the
the plaintiff upon the filing of the complaint government failed to pay just
or at any time thereafter, must deposit with compensation within 5 years from the
the proper government authority an amount finality of judgment in the expropriation
equivalent to the assessed value of the proceedings, the owners concerned shall
property for purposes of taxation. have the right to recover possession of
their property.
The deposit shall be n money, unless
the court authorizes a deposit in the form of Title to the property expropriated
a certificate of deposit of a government bank passes from the owner to the expropriator
of the Republic payable on demand to the only upon full payment of just
authorized depository. compensation.
Appeal from the order of expropriation

VII Foreclosure of Real Estate
The final order sustaining the right to Mortgage (68)
expropriate the property may be appealed
from by any party aggrieved by such order.
A creditor cannot file an action
The appeal shall not however, prevent the
against the debtor for collection of the debt
court from determining the just
and subsequently file an action to foreclose
compensation to be paid. This should be
the mortgage. This is an example of
taken to mean that despite the appeal from
splitting of a single cause of action.
the order of expropriation, the court may
proceed to the second stage of the
Modes of foreclosure of real estate
expropriating process, the determination of
mortgage
just compensation.
a. judicial foreclosure pursuant to
Appeal from the judgment as to
Rule 68;
compensation
b. extra-judicial foreclosure pursuant
to Act. No. 3135 as amended by
The judgment rendered by the court
Act No. 4118.
as to the just compensation may be
appealed from but the appeal shall not have
Extra-judicial foreclosure is the
the effect of delaying the right of the plaintiff
mode to be used if there is a special power
to enter upon the property and to
inserted or attached to the real estate
San Sebastian Law
DEAN WILLARD RIANO
mortgage contract allowing an extra-judicial No independent action need be
foreclosure sale. filed to recover the deficiency from the
mortgagor. The deficiency judgment shall
Where there is no such special be rendered upon motion of the
power, the foreclosure shall be done mortgagee.
judicially following the procedure set under
Rule 68. A deficiency judgment is by nature
in personam and jurisdiction over the
Applicability of Rule 68 person is mandatory. Having been outside
the country, jurisdiction over his person
Rule 68 applies only to judicial could not have been acquired.
foreclosures of real estate mortgage.
Judicial vs. extra-judicial foreclosure
Procedure
1. judicial, governed by Rules of
A foreclosure suit proceeds like an Court; extra-judicial, by Act. No.
ordinary action. 3135;
2. judicial, involves the filing of an
Equity of redemption independent action; extra, does
not require filing of an action
It is the right to extinguish the 3. judicial, there is equity of
mortgage and retain ownership of the redemption and no right of
property by paying the debt. redemption except when the
mortgagee is a banking institution;
The equity of redemption may be extra, there is a right of
exercised even after the foreclosure sale redemption.
provided it is made before the sale is 4. judicial, there could be a deficiency
confirmed by order of the court. judgment; extra, no deficiency
judgment because there is no
The equity of redemption of the judicial proceeding, although
mortgagor may be exercised prior to the recovery of the deficiency is
confirmation of the sale. After its allowed.
confirmation no further redemption may be
made.
VIII Partition (69)
Right of redemption
Partition is the separation, division
It is a right granted to a mortgagor and assignment of a thing held in common
to repurchase the property even after the among those to whom it may belong.
confirmation of the sale and even after the
registration of the certificate of sale. There must be co-ownership.
There is no right of redemption in a A co-owner may demand at any

judicial foreclosure of mortgage under Rule time the partition of the property owned in
68. This exists only in extrajudicial common except:
foreclosures where there is always a right of 1. there is an agreement between co-
redemption within one year from the date of owners to keep the property
sale, but interpreted by the Court to mean undivided for a period both
one year from the registration of the sale. exceeding ten years;
2. partition is prohibited by the donor
Deficiency judgment or testator for a period not
exceeding 20 years;
If there be a balance due to the 3. partition is prohibited by law;
plaintiff after applying the proceeds of the 4. property is not subject to physical
sale, the court, upon motion shall render division
judgment against the defendant for any such
balance.
San Sebastian Law
DEAN WILLARD RIANO
5. condition imposed upon voluntary date of last demand, in case of unlawful
heir before they can demand detainer.
partition has not yet been fulfilled.
The issue in said cases is the right
Prescription does not run in favor of to physical possession.
a co-owner or co-heir.
Accion publiciana and accion
The action for partition cannot be reivindicatoria
barred by prescription as long as the co-
ownership exists. Accion publiciana is the
plenary action to recover the right of
The proceedings had before the possession which should be brought when
commissioners shall not bind the parties or dispossession has lasted for more than one
pass title to property until the court shall year.
have accepted the report of the
commissioners and rendered judgment It is an ordinary civil proceeding to
thereon. determine the better right of possession of
realty independent of title.
IX Forcible Entry and Unlawful
Detainer If at the time of the filing of the
complaint more than one year had elapsed
since defendant had turned plaintiff out of
Under existing law and
possession or defendants possession had
jurisprudence, there are 3 kinds of actions
become illegal, the action will be, not one
available to recover possession of real
of the forcible entry or illegal detainer, but
property:
an accion publiciana.
a. accion interdictal;
Accion reivindicatoria involves
b. accion publiciana;
not only possession, but ownership of the
c. accion revindicatoria
property.
Accion interdictal
Real and in personam actions
The actions of FE and UD belong to
FEUD actions are actions affecting
the class of actions known by the generic
possession of real property, hence are real
name accion interdictal (ejectment) where
actions, the venue is the place where the
the issue is the right of physical or material
property subject of the action is situated.
possession of the subject real property
independent of any claim of ownership by
They are actions in personam.
the parties involved.
Jurisdiction of the MTC; summary
Forcible entry, one is deprived of
procedure
physical possession of real property by
means of force, intimidation, strategy,
Actions of FEUD are within the
threats, or stealth.
exclusive jurisdiction of the MTC and shall
be governed by the rules on summary
Unlawful detainer, one illegally
procedure irrespective of the amount of
withholds possession after the expiration or
damages or rentals sought to be
termination of his right to hold possession
recovered.
under any contract, express or implied.
The decision in an ejectment case
The jurisdiction of these 2 actions,
does not bind the title to or ownership of
which are summary in nature, lies in the
the land or building. It does not also bar an
proper MTC.
action between the same parties respecting
title to the property.
Both actions must be brought within
one year form the date of actual entry on the
land, in case of forcible entry, and from the
San Sebastian Law
DEAN WILLARD RIANO
Effect of the pendency of an action involving in the premises. The demand may also be
ownership on the action for forcible entry made by posting a written notice on the
and unlawful detainer premises if no person can be found therein.
A pending action involving ownership It may be oral.

of the subject property dose not bar the filing
of an ejectment suit, nor suspend the Effect of non-compliance with the
proceedings of one already instituted. demand
The action for specific performance in If the demand is not complied with
the RTC has no effect on the ejectment case after 15 days in the case of land or 5 days
and shall proceed irrespective of the in the case of buildings, the lessor may
outcome of the RTC case. The issues in the now proceed against the lessee.
ejectment case is mere possession while the
issue in the specific performance case is the When demand is not required in
validity as well as the enforceability of the unlawful detainer case
option to purchase.
1. there is a stipulation dispensing
When defendant occupies premises by mere with demand
tolerance 2. when the ground for the suit is
based on the expiration of the
If the defendant stays in the lease because when the lease
premises by mere tolerance of the owner, expires the cause of action for
the possession becomes unlawful upon unlawful detainer immediately
failure to comply with the demand to vacate arises.
made by the owner. The unlawful
withholding of possession is to be counted Demand to vacate is, however,
from the date of the demand to vacate. required when the lease is on a month-to-
month basis to terminate the lease upon
Demands in unlawful detainer cases the expiration of the month in order to
prevent the application of the rule of tacita
An unlawful detainer case shall be reconduccion or implied new lease.
commenced only after demand to pay or
comply with the conditions of the lease and Tacita reconduccion
to vacate is made upon the lessee, unless
there exists a stipulation to the contrary. If at the end of the lease, the
lessee continues to enjoy the property
Where the suit is based on the leased for 15 days with the consent of the
defendants failure to pay the rentals agreed lessor, and no notice to the contrary has
upon, the proper demand should be to to been given, it is understood that there is
pay and vacate. It should not be to pay or an implied new lease, not for the period in
vacate. The latter demand which I in the the original contract, but for the time
alternative does not make out a case for established in articles 1682 and 1687 of
unlawful detainer since it is not in the Civil Code.
accordance with the required tenor of the
demand prescriber by sec. 2 of Rule 70 Defense of tenancy
Thus, a demand to pay P500,000 by A tenancy case falls within the

way of unpaid rentals or to vacate if not paid jurisdiction of the Department of Agrarian
within 5 days does not make out an action Reforms Adjudicatory Board (DARAB).
for unlawful detainer but one merely for
collection of sum of money and must be filed Where tenancy is raised as a
with the RTC. defense, the court must conduct a
preliminary hearing on the matter to
Form of demand determine the allegations of tenancy. If
during the hearing, it is shown that
The demand ma be in the form of a tenancy is the real issue, that is when the
written notice served upon the person found court shall dismiss the case for lack of
San Sebastian Law
DEAN WILLARD RIANO
jurisdiction. Jurisdiction is determined by the determination is only initial and is made
allegations of the complaint. merely for the purpose of settling the issue
of possession.
Defense of ownership
Immediate execution of judgment
The assertion by the defendant of
ownership over the disputed property does A judgment on a FEUD action is
not serve to divest the inferior court of its immediately executory to avoid injustice to
jurisdiction. a lawful possessor, and the courts duty to
order the execution is practically
The defendant cannot deprive the ministerial.
court of jurisdiction by merely claiming
ownership of the property involved. How to stay immediate execution of
judgment
When defendant raises the issue of
ownership, the court may resolve the issue The defendant must take the
of ownership but only under the ff. following steps:
conditions: 1. perfect an appeal;
2. file a supersedeas bond; and
a. when the issue of possession 3. deposit periodically with the RTC
cannot be resolved without during the pendency of the appeal,
resolving the issue of the adjudged mount of rent due
ownership; and under the contract or if there be no
b. the issue of ownership shall contract, the reasonable value of
be resolved only to the use and occupation of the
determine the issue of premises.
possession.
Where to appeal
In letter b., the judgment would not
bar an action between the same parties Appealable to the appropriate RTC.
respecting title to the land or building. The
resolution of the MTC on the ownership of Mode of appeal is the same as in
the property is merely provisional or ordinary civil actions under Rule 40 where
interlocutory. Any question involving the a notice of appeal is filed with and the
issue of ownership should be raised and docket fee paid in the court of origin, which
resolved in a separate action brought is the MTC.
specifically to settle the question with
finality.
How to obtain possession of the X. CONTEMPT

premises during the pendency of the
action Contempt of court is the
disobedience to the court by acting in
When the action is filed, the plaintiff opposition to its authority, justice and
in an ejectment case is not tin possession of dignity.
the property. To obtain possession, the Rules
permit the plaintiff to present a motion, Functions
within 5 days from the filing of the
complaint, for the issuance of a writ of 1. vindication of public interest by
preliminary mandatory injunction to restore punishing of contemptuous
him in his possession. This motion shall be conduct; and
resolved within 30 days from its filing. 2. coercion to compel the contemnor
to do what the law requires him to
Judgment not binding on ownership uphold the power of the Court, and
also the rights of the parties to a
If an issue of ownership is raised in suit awarded by the court.
an action for FEUD and the court makes a
determination of ownership, such Kinds of contempt
San Sebastian Law
DEAN WILLARD RIANO
According to nature: The penalty for direct contempt

depends upon the court against which the
Criminal contempt is conduct act was committed.
directed against the authority and dignity of
the court or a judge acting judicially; it is If the act was committed against
obstruction of the administration of justice the RTC or a court of equivalent or higher
which tends to bring the court in to disrepute rank, the penalty is a fine not exceeding 2k
or disrespect. or imprisonment not exceeding 10 days or
both.
Civil contempt is the failure to do
something ordered to be done by a court or If the act was committed against a
a judge for the benefit of the opposing party lower court, a fine not exceeding 1k or
therein and is therefore, an offense against imprisonment not exceeding 1 day or both.
the part in whose behalf the violated order
was made. Remedy of a person adjudged in
contempt
According to the manner of
commission: A person adjudged in direct
contempt may not appeal therefrom.
1. Direct- committed in the
presence of or so near the court His remedy is a petition for
or judge as to obstruct or certiorari or prohibition directed against
interrupt the proceedings before the court which adjudged him in direct
the same; and contempt.
2. indirect one committed not in
the presence of the court Pending the resolution of the
petition for certiorari or prohibition, the
execution of the judgment for direct
Direct contempt contempt shall be suspended. The
suspension however, shall take place only
Acts constituting direct contempt; if the person adjudged in contempt files a
1. misbehavior in the presence of or so bond fixed by the court which rendered
near the court as to obstruct or judgment.
interrupt the proceedings before it;
2. disrespect toward the court; Indirect contempt
3. offensive personalities towards
others; Indirect contempt in general is
4. refusal to be sworn as a witness or to committed by a person who commits any
answer as a witness; of the following acts:
5. refusal to subscribe an affidavit or
deposition when lawfully required to a. disobedience or resistance to a
do so; lawful writ, process, order or
6. acts of party or counsel which judgment of a court;
constitute willful and deliberate b. any abuse of or any unlawful
forum shopping interference with the process or
7. unfounded accusations or allegations proceedings of a court not
or words tending to embarrass the constituting direct contempt;
court or to bring it into disrepute. c. any improper conduct tending
directly, or indirectly, to impede,
No formal proceeding required obstruct or degrade the
administration of justice.
No formal proceeding is required to
cite a person in direct contempt. The court A mere motion under the present
ma summarily adjudge one in direct rules is not a mode of initiating indirect
contempt. contempt.
Penalty
San Sebastian Law
DEAN WILLARD RIANO
Contempt in relation to execution of however, have the effect of suspending the
judgment judgment if the person adjudged in
contempt does not file a bond in an
Generally, Contempt is not a means amount fixed by the court from which the
of enforcing a judgment. appeal is taken. This bond is conditioned
upon his performance of the judgment or
final order if the appeal is decided against
How a proceeding for indirect contempt him.
is commenced
Unlike direct contempt which is

summary, an act constituting an indirect
SUMMARY
contempt is to be punished only after charge
in writing and hearing.
The procedural requisites before the

accused may be punished for direct
PROCEDURE
contempt:
Civil cases subject to summary procedure
a. a charge in writing to be filed;
1. FEUD cases;
b. an opportunity for the person
2. all other claims where the total
charged to appear and explain
claim does not exceed P100,000
his conduct;
outside MM, or does not exceed
c. to be heard by himself or
P200,000 in MM, exclusive or
counsel.
interests and costs.
Probate proceedings are not

Court where the charge for indirect
covered by the rule on summary procedure
contempt is filed
even if the gross value of the estate does
not exceed P100,000 or P200,000.
Depends upon the level of the court
against which the contempt was committed.
Basic principles
1. act committed against the RTC or a
Not all pleadings ni an ordinary
court of equivalent or higher rank, or
civil action are allowed in a summary
against an officer appointed by it, the
procedure.
charge may be filer with such court.
2. act committed against a lower court,
The only pleadings allowed are:
the charge may be filed with the
1. complaint
RTC. It may also be filed in the lower
2. compulsory counterclaim
court against which the contempt
3. cross-claims pleaded in the answer
was allegedly committed. The
4. answers to the pleading.
decision of the lower court is
appealable to the RTC.
The court in a summary procedure
3. where the act was committed against
may dismiss the case outright on any of
persons or entities exercising quasi-
the grounds for the dismissal of a civil
judicial junctions, the charge shall be
action.
filed with the RTC of the place
wherein the contempt was
Should the defendant fail to answer
committed.
the complaint within a period of 10 days
from service of summons, the court may,
Remedy of a person adjudged in indirect
motu proprio, or on motion of the plaintiff,
contempt
render judgment (not an order declaring
the defendant in default) as may be
The person adjudged in indirect
warranted by the facts alleged and limited
contempt may appeal from the judgment or
to what is prayed for.
final order of the court in the same manner
as in criminal cases. The appeal will not
San Sebastian Law
DEAN WILLARD RIANO
There shall be a preliminary
conference held but there will be no trial.
Instead the parties shall submit
affidavits and position papers.
Within 30 days from receipt of the

last affidavits and position papers, or the
expiration of the period for filing the same,
the court shall render judgment.
As a rule a motion to dismiss is not

allowed except on either 2 grounds:
1. lack of jurisdiction over the subject
matter;
2. failure to comply with the barangay
conciliation proceedings.
See sec 19 of the Rules on Summary

Procedure for prohibited pleadings.
San Sebastian Law

Riano PDF

Uploaded by

Copyright:

Available Formats

Riano PDF

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Riano PDF

Uploaded by

Copyright:

Available Formats

LEX LEONUM FRATERNITAS

Provisional Remedies / Special Civil Actions / Summary Procedure

PROVISIONAL REMEDIES The attachment is preliminary only

I. Preliminary attachment Garnishment simply impounds the

Attachment places the property Levy on execution is the writ issued by

See sec 1 Rule 57. 1. the case must be any of those

The application for preliminary Grant of preliminary attachment,

It may be issued ex parte and even How to have the attachment

The attachment on a property Main action for injunction

Proceedings where property attached is To preserve the status quo or to

It is final when it is issued as a The evidence to be submitted by

1. there must be a verified application If the matter is of extreme

A writ of preliminary injunction Examples in which

Issuance of TRO by CA and SC 1. cases growing out of a labor

Procedure for the application for Support pendent elite is an amount

In that same order, the court may

I. INTERPLEADER If the subject matter is real

Requisites: Rule 63 covers 2 types of actions;

Court with jurisdiction If such ordinance is alleged to be

The action for reformation The action is brought to remove a

The contract is to be reformed The plaintiff need not be in possession of

Where the consent of a party has

While the filing of a MR or a MNT

Judicial and quasi-judicial functions

5. where under the circumstances, a MR If the petition relates to the acts or

Discretionary acts not compellable by

Mandamus will not issue to control or Quo warranto literally means by

Under the OEC, a quo warranto Quo warranto proceedings and

http://www.yo VI Expropriation (67)

utube.com/watc Exercise by LGUs

Appeal from the order of expropriation

There is no right of redemption in a A co-owner may demand at any

A pending action involving ownership It may be oral.

Thus, a demand to pay P500,000 by A tenancy case falls within the

How to obtain possession of the X. CONTEMPT

According to nature: The penalty for direct contempt

Unlike direct contempt which is

The procedural requisites before the

Probate proceedings are not

Within 30 days from receipt of the

As a rule a motion to dismiss is not

See sec 19 of the Rules on Summary

You might also like