NOTES ON SPECIAL CIVIL ACTIONS

Definition/Concept of SCA

The Rules of Court does not define what is a special civil

action. Sec. 3, Rule 1 of the ROC tells us only what an ordinary civil
action is. Accordingly, what makes an action special is when it is
governed by specific rules under the ROC. Take note, however,
that under the 2nd par. of Sec. 3 (a), Rule 1, both ordinary and
special civil actions are governed by the rules for ordinary civil
actions, subject to specific rules provided for each and every special
civil action.
Some distinctions (OCA v. SCA)

While a cause of action is required in ordinary civil action,

this is NOT absolute in SCA. Specifically, there are 2 SCA which
does not require a cause of action. These are: Interpleader (R62);
and Declaratory Relief (R63).

OCA can be filed either in MTC or RTC. In SCA, this is not

the rule in so far as forcible entry and unlawful detainer cases
which can only be filed with the MTC and is governed by the
Rules on Summary Proceedings. But MTC can also exercise
jurisdiction over SCAs of Interpleader (R62), Parition (R69) and
Contempt (R71).

In SCA there is an exercise of concurrent jurisdiction, i.e.

certiorari, prohibition and mandamus (R65), Quo Warranto (R66) so
far as RTC, CA and SC, although Sec. 4, Rule 65 of the Rules
require observance of the rule on “hierarchy of courts”. This is not
the rule in ordinary civil action since except for annulment of
judgment of the RTC, which the CA has exclusive jurisdiction,
ordinary civil actions can only be filed/ commenced in either the
MTC or RTC.

In venue, for OCA you have to file the complaint either

where the property is located if it is a real action, or where the
plaintiff or principal defendants (if there are several defendants) if
it is a personal action (Secs. 1& 2, R 4).

In SCA the rule on venue does not necessarily apply where

the action is filed in the CA or SC, or where in an action for Quo
Warranto is commenced by the Solicitor General, in which case it
is filed in the City of Manila.

In OCA, the action is always commenced thru a complaint. In

SCA, it may either be denominated as complaint or petition.
(a)     Special civil actions initiated by filing of a Petition:

1. Declaratory relief other than similar remedies;

2. Review of adjudication of the COMELEC and COA;
3. Certiorari, prohibition and mandamus;
4. Quo warranto; and
5. Contempt

(b)     Special civil actions initiated by filing of a Complaint:

1. Interpleader;
2. Expropriation;
3. Foreclosure of real estate mortgage;
4. Partition; and
5. Forcible entry and unlawful detainer.

INTERPLEADER (Rule 62)

Jurisdiction

In Interpleader jurisdiction is either:

a) based on the value of the property subject of the action
(MTC or RTC); or
b) RTC, if the subject is incapable of pecuniary estimation
(Ex. Service to be rendered).

 Only for the purpose of resolving claims of several parties, with

the possessor of the property or having an obligation to
perform under a contract, having no interest over the property
or if he has interest not disputed by the claimants.
 No CAUSE OF ACTION REQUIRED.
 Rule on Summons applies.
 Motion to Dismiss applicable (grounds under Sec.1, R 16, plus
IMPROPRIETY of the action (S4, R62).
 Rule on pleadings apply.
 Rule on default apply and co-defendant who is declared in
default is barred so far as his claim to the property (S5).
 Counterclaims, cross-claims, 3rd party allowed. Therefore, a
warehouseman sued by a claimant can invoked by way of
counterclaim Interpleader action (Judicial Form No. 5, Annex to
the Rules of Court).
 A stolen cashier’s check is a proper subject of an interpleader
action (Mesina vs. IAC, G.R. No. L-70145, November 13, 1986).
G.R. No. 127913      September 13, 2001
 Conflicting claims for rentals can be a proper subject of
Interpleader (RCBC vs. Metro Container Corp., GR. No. 127913,
Sept. 13, 2001).
G.R. No. 127913      September 13, 2001

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 Declaratory Relief/Similar Remedies (R63)

 Declaratory Relief is a remedy available where there is no

breach as yet. Once a breach is committed it is no longer
available, or a pending action for DR shall be converted into
and OCA (S6). Its purpose is to secure the declaration of one’s
rights and duties under a deed, will, contract, or other written
instrument, or whose rights may be affected by a statute, ex.
order or regulation, ordinance, or any other governmental
regulation (subject matter is exc.). This means that under the
circumstances there is a threatened litigation in the
immediate future to which DR is proper to prevent such
litigation.
The subject matter of a petition for declaratory relief raises issues
which are not capable of pecuniary estimation and must be filed with
the Regional Trial Court (Sec. 19[1], BP 129; Sec. 1, Rule 63). It would
be error to file the petition with the Supreme Court which has no
original jurisdiction to entertain a petition for declaratory relief
(Untied Residents of Dominican Hill vs. Commission on the Settlement of
Land Problems, 353 SCRA 782; Ortega vs. Quezon City Government, 469
SCRA 388). A petition for declaratory relief gives a practical remedy
for ending controversies that have not reached the state where
another relief is immediately available; and supplies the need for a
form of action that will set controversies at rest before they lead to a
repudiation of obligations, an invasion of rights, and a commission of
wrongs (Manila Electric Company v. Philippine Consumers Foundation,
Inc., 425 Phil. 65).

 Similar remedies under R63: REFORMATION OF

INSTRUMENT (Art. 1359, Art. 1363 & Art. 1365, CC) ;
QUIETING OF TITLE OR REMOVAL OF CLOUDS OVER
SUCH TITLE (Art. 476, CC) ; and CONSOLI-DATION OF
TITLE (Art. 1607CC).
 Similar Remedies require cause action which is not required
for DR.
 In DR the court action is discretionary (S5); in SR the court is
bound to render judgment
 Motion to Dismiss apply and in addition under S5 of R63
(DR can be dismissed due to impropriety, being unnecessary,
improper, or DR will not terminate the controversy or there is
uncertainty giving rise to the action).
 PARTIES – all parties interested or those who claim interest
that may be affected by the action. Any declaration made by
the court shall not prejudice the rights of non-parties to the
action. But in action involving the validity of a law, EO,

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 regulation, or other governmental regulation the SolGen shall
be notified and be heard.
 In case of local ordinances the prosecutor must be notified
and heard. But if the issue is constitutionality of Ordinances
SolGen must also be notified and be heard.

 NOTE: where the issue involved constitutionality of a law or

where it might be of far-reaching implications the SC may
take cognizance of the petition by way of prohibition or
mandamus.

 Venue under Rule 4 also apply.
 Other relief, compulsory counterclaim may be entertained in
DR.

Requisites of action for declaratory:

(a)     There must be a justiciable controversy;

(b)     The controversy must be between persons whose interests are

adverse;

(c)     The party seeking the relief must have legal interest in the
controversy; and

(d)     The issue is ripe for judicial determination (Republic vs. Orbecido
III, 472 SCRA 114).

In other words, for Declaratory Relief to be proper first , the subject

matter of the controversy must be a deed, will, contract or other written
instrument, statute, executive order or regulation, or ordinance; second ,
the terms of said documents and the validity thereof are doubtful and
require judicial construction; third , there must have been no breach of the
documents in question; fourth , there must be an actual justiciable
controversy or the "ripening seeds" of one between persons whose interests
are adverse; fifth , the issue must be ripe for judicial determination; and
sixth , adequate relief is not available through other means or other forms
of action or proceeding (Almeda v. Bathala Marketing Industries, Inc., 566
Phil. 458; cited in Rep., et al. vs. Roque, et. al., G.R. No. 204603, September
24, 2013 [en banc]).

No DR in the FF. Cases

 Court decisions
 Political questions
 Citizenship
 Establishment of ill. filiation and hereditary rights

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  Where ord. is clear and unambiguous
 Action for advisory opinion
 Action based on contingent events
 Petitioner not a real party-in-interest
 Non-exhaustion of administrative remedies
 Existence of breach

[Under the Rules of Court, petitions for Certiorari and Prohibition are

availed of to question judicial, quasi-judicial and mandatory acts.] Since the
issuance of an EO is not judicial, quasi-judicial or a mandatory act, a
petition for certiorari and prohibition is an incorrect remedy; instead a
petition for declaratory relief under Rule 63 of the Rules of Court, filed
with the Regional Trial Court (RTC), is the proper recourse to assail the
validity of E.O. No. 7 dated Sept. 18, 2010 (Aquino, et al., G.R. No. 193978,
February 28, 2012).
 
SIMILAR REMEDIES

(These three remedies are considered similar to declaratory relief because

they also result in the adjudication of the legal rights of the litigants, often
without the need of execution to carry the judgment into effect,
(Regalado, REMEDIAL LAW COMPENDIUM (6th revised ed.), p. 692).

I. Reformation of an instrument

(1)     It is not an action brought to reform a contract but to reform the

instrument evidencing the contract. It presupposes that there is nothing
wrong with the contract itself because there is a meeting of minds between
the parties. The contract is to be reformed because despite the meeting of
minds of the parties as to the object and cause of the contract, the
instrument which is supposed to embody the agreement of the parties does
not reflect their true agreement by reason of mistake, inequitable conduct
or accident. The action is brought so the true intention of the parties may be
expressed in the instrument (Art. 1359, CC).

(2)     The instrument may be reformed if it does not express the true
intention of the parties because of lack of skill of the person drafting the
instrument (Art. 1363, CC). If the parties agree upon the mortgage or
pledge of property, but the instrument states that the property is sold
absolutely or with a right of repurchase, reformation of the instrument is
proper (Art. 1365, CC).

(3)     Where the consent of a party to a contract has been procured by

fraud, inequitable conduct or accident, and an instrument was executed by
the parties in accordance with the contract, what is defective is the contract
itself because of vitiation of consent. The remedy is not to bring an action
for reformation of the instrument but to file an action for annulment of the
contract (Art. 1359, CC).

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(4)     Reformation of the instrument cannot be brought to reform any
of the following:

(a)     Simple donation inter vivos wherein no condition is imposed;

(b)     Wills; or
(c)     When the agreement is void (Art. 1666, CC).

II. Consolidation of ownership

(1)     The concept of consolidation of ownership under Art. 1607,

Civil Code, has its origin in the substantive provisions of the law on
sales. Under the law, a contract of sale may be extinguished either by
legal redemption (Art. 1619) or conventional redemption (Art. 1601).
Legal redemption (retracto legal) is a statutory mandated redemption
of a property previously sold. For instance, a co-owner of a property
may exercise the right of redemption in case the shares of all the
other co-owners or any of them are sold to a third person (Art. 1620).
The owners of adjoining lands shall have the right of redemption
when a piece of rural land with a size of one hectare or less is
alienated (Art. 1621). Conventional redemption (pacto de retro) sale is
one that is not mandated by the statute but one which takes place
because of the stipulation of the parties to the sale. The period of
redemption may be fixed by the parties in which case the period
cannot exceed ten (10) years from the date of the contract. In the
absence of any agreement, the redemption period shall be four (4)
years from the date of the contract (Art. 1606). When the
redemption is not made within the period agreed upon, in case the
subject matter of the sale is a real property, Art. 1607 provides that
the consolidation of ownership in the vendee shall not be recorded
in the Registry of Property without a judicial order, after the
vendor has been duly heard.

(2)     The action brought to consolidate ownership is not for the

purpose of consolidating the ownership of the property in the
person of the vendee or buyer but for the registration of the
property. The lapse of the redemption period without the seller a
retro exercising his right of redemption, consolidates ownership or
title upon the person of the vendee by operation of law. Art. 1607
requires the filing of the petition to consolidate ownership because
the law precludes the registration of the consolidated title without
judicial order (Cruz vs. Leis, 327 SCRA 570).

 III. Quieting of title to real property

(1)     This action is brought to remove a cloud on title to real property

or any interest therein. The action contemplates a situation where the
instrument or a record is apparently valid or effective but is in truth
and in fact invalid, ineffective, voidable or unenforceable, and may

6
be prejudicial to said title to real property. This action is then brought
to remove a cloud on title to real property or any interest therein. It
may also be brought as a preventive remedy to prevent a cloud from
being cast upon title to real property or any interest therein (Art. 476).

(2)     The plaintiff need not be in possession of the real property

before he may bring the action as long as he can show that he has a
legal or an equitable title to the property which is the subject matter
of the action (Art. 477).

REVIEW OF JUDGMENT AND FINAL ORDERS OF COMELEC

AND COA (R64)

 Rule 64 in Relation to Rule 65, ROC governs the procedures,

except that the period to file is 30 days from notice of
judgment or final order. The “Fresh Period Rule” (Neypes v.
CA) does not apply (Patis vs. COMELEC, et al., . G.R. No.
184915, June 30, 2009; Fortune Insurance vs. COA, et al., G.R.
No. 213525;  January 27, 2015)

 Jurisdiction – exclusive with the SC (for CSC – CA under R

43; RA 7902)
 Motion or reconsideration required and the “Fresh Period
Rule” does apply to Rule 64 (only for CERT. PROH. &
MAND. under Rule 65). This means petition should be filed
within the remaining period (of 30 days) but not less than 5
days. NOTE THAT MR IS REQUIRED IN COMELEC
RULING BY DIVISION BUT NO MR REQUIRED IN AN EN
BANC RULING.


 MR Mandatory for Rule 64, except:

 1. to prevent miscarriage of justice;
 2. decision is a total nullity;
 3. relief sought is extremely urgent and certiorari is the only
adequate remedy (ABS-CBN)

 NOTE: NO SUMMONS UNDER R64 & R65 but order issued

to file comment within 10 days from receipt of order. The
filling of petition under R64 & 65 does not bar execution of
judgment (S8, R 64, S7, R 65).
 But the SC may dismiss outright the petition if:
 1. Insufficient in form and substance;
 2. manifestly for delay;
 3. issues raised are to unsubstantial (S8, R65).

Certiorari, Prohibition & Mandamus (R65)

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 Common to certiorari and prohibition:
 Actual controversy; public respondent exercises judicial or
quasi-judicial functions; lack or in excess of jurisdiction or
grave abuse of discretion amounting to lack of juris. is
committed; no appeal or other plain, speedy and adequate
remedy.
 NOTE: If the action is purely based on lack of jurisdiction the
proper action is prohibition precisely because it is a writ to
prevent usurpation of jurisdiction. It also includes ministerial
function.
 Note also that in all these actions the appellate court exercises
discretionary review power.
 Sec. 8, R64 and Sec. 7, R65, ROC – to prevent enforcement of
the decision subject of the certiorari petition a TRO or
preliminary injunction is required.
 Public respondent is only a nominal party under R64 & 65
and the private respondent becomes a principal party who
has the obligation to file comment, and who is charged of
costs and damages, if any is adjudged (S5, R65).
 In election cases (decisions of MTC or RTC) THE PETITION
SHALL BE FILED EXCLUSIVELY WITH THE COMELEC
(S.4, in relation to SC Res. No. 07-7-12-SC, Dec. 4, 2007).
 Certiorari under Rule 65 (S1) should be taken together with
S1, Rule 41, which provide for instances where appeal is not
the proper remedy but certiorari. These are:
 Order denying petition for relief from judgment
 Interlocutory orders
 Order denying judgment by consent, confession or
compromise on the ground of fraud, mistake or duress, or
other ground vitiating consent
 Order of execution
 Judgment or final order for or against one or more of several
parties or in separate claims, cross-claims and 3rd party
complaints, while the main case is pending (several judgment
rule), except with leave of court
 Order dismissing an action w/o prejudice

Grounds for the court to moto propio dismiss the special civil
action for CPM
1.        patently without merit
2.        prosecuted manifestly for delay, or
3.        the questions raised therein are too unsubstantial to require
consideration.

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 Exceptions to MR before Cert./Prohibition

 GR- no petition for certiorari can be commenced w/o the requisite

MR in the trial court for interlocutory orders, EXCEPT:

Exceptions to filing of motion for reconsideration before filing

petition

(1)  When the issue is one purely of law or public interest is involved;
(2)     When there is urgency to decide upon the question and any
further delay would prejudice the interests of the government or of
the petitioner;
(3)     Where the subject matter of the action is perishable;
(4)     When order is a patent nullity, as where the court a quo has no
jurisdiction or there was no due process;
(5) When questions have been duly raised and passed upon by the
lower court;
(6) When there is urgent necessity for the resolution of the question;
(7) When Motion for Reconsideration would be useless, e.g. the court
already indicated it would deny any Motion for Reconsideration;
(8) In a criminal case, where relief from order of arrest is urgent and
the granting of such relief by the trial court is improbable;
(9) Where the proceedings were ex parte or in which the petitioner
had no opportunity to object; and
(10) When petitioner is deprived of due process and there is extreme
urgency for urgent relief.

 NOTE: GR is that question of law cannot be raised in certiorari or

error of judgment.

Certiorari as Substitute of Appeal

 GR – Certiorari cannot be a substitute for appeal,

EXCEPT:

 Appeal was lost without the appellant’s negligence;

 When public welfare and public policy dictates, or broader
interests of justice demands;
 Order subject of the petition is a patent nullity
 Appeal is clearly not a speedy and adequate remedy.
 To avoid future litigation;
 When the questioned order amounts to an oppressive
exercise of judicial authority (Chua vs. CA, 344 SCRA 136).
 In accordance with the liberal spirit pervading the Rules of Court
and in the interest of justice, SC have the discretion to treat a
petition for certiorari as having been filed under Rule 45,
especially if filed within the reglementary period for filing a

9
 petition for review (Delsan Transport Lines, Inc. v. Court of
Appeals, G.R. No. 112288, February 20, 1997).

In case of acquittal in criminal cases.

In criminal cases, denial of a motion to quash cannot be a subject

certiorari. The remedy is go to trial and if convicted the matter can be
raised in such appeal.

CERTIORARI IS NOT AVAILABLE AGAINST DENIAL OF

MOTION FOR LEAVE TO FILE DEMORRER OR DEMURRER IN
CRIMINAL CASES (Sec. 23, Rule 119, ROC) – THE REMEDY
BEING TO GO TO TRIAL.

HOWEVER, IN GLORIA ARROYO VS. SANDIGANBAYAN (G.R.

220598, July 19, 2016) – SC took cognizance of and decided the
petition for Certiorari from the Order of SB DENYING
DEMURRER.

Certiorari is a remedy for the correction of errors of

jurisdiction, not errors of judgment. It is an original and independent
action that was not part of the trial that had resulted in the rendition
of the judgment or order complained of. More importantly, since the
issue is jurisdiction, an original action for certiorari may be directed
against an interlocutory order of the lower court prior to an appeal
from the judgment (New Frontier Sugar Corp. vs. RTC of Iloilo, GR
165001, Jan. 31, 2007).

Certiorari is not and cannot be made a substitute for an appeal

where the latter remedy is available but was lost through fault or
negligence. The remedy to obtain a reversal of judgment on the
merits is appeal. This holds true even if the error ascribed to the
lower court is its lack of jurisdiction over the subject matter, or the
exercise of power in excess thereof, or grave abuse of discretion. The
existence and availability of the right to appeal prohibits the resort to
certiorari because one of the requirements for certiorari is that there is
no appeal (Bugarin vs. Palisoc, GR 157985, Dec. 5, 2005).

In criminal cases:
Q. Can an Asst. Provincial Prosecutor file a petition for
certiorari before the Supreme Court questioning the decision of the
RTC, instead of the Solicitor General.

A. Yes. While generally the Solicitor General is the only officer

who has that authority whether in the CA or SC, there are cases when
exceptions are allowed. In the case of People vs. Hon. Edmar Castillo,
Nov. 7, 2016 the SC ruled: “ such technicality can be relaxed in the

10
interest of justice. The Court has allowed some meritorious cases to
proceed despite inherent procedural defects and lapses. This is in
keeping with the principle that rules of procedure are mere tools
designed to facilitate the attainment of justice and that strict and rigid
application of rules which would result in technicalities that tend to
frustrate rather than promote substantial justice must always be
avoided.18 It is a far better and more prudent cause of action for the
court to excuse a technical lapse and afford the parties a review of the
case to attain the ends of justice, rather than dispose of the case on
technicality and cause grave injustice to the parties, giving a false
impression of speedy disposal of cases while actually resulting in more
delay, if not a miscarriage of justice. In certain cases, this Court
even allowed private complainants to file petitions
for  certiorari  and considered the said petitions as if filed by the
Office of the Solicitor General.”

Mandamus

The chief function and office of Mandamus is to compel performance

of a ministerial duty but not to compel how it is to be performed or to
act. By way of exception, however, mandamus will lie where there is
gross abuse of discretion, manifest injustice or palpable excess of
authority (Roque v. Ombudsman, Angchangco, Jr. v. Ombudsman, Tatad
v. Sandiganbayan). These cases involve violation of the constitutional
rights to due process and speedy disposition of cases.

In Knights of Rizal vs. MCI Homes, Inc., et al., G.R. No. 213948, April 18,
2017, the Supreme Court thru Justice Carpio ruled:

“The Rules on Civil Procedure are clear that mandamus only issues
when there is a clear legal duty imposed upon the office or the officer
sought to be compelled to perform an act, and when the party seeking
mandamus has a clear legal right to the performance of such act.

“x x x nowhere is it found in Ordinance No. 8119 or in any law,

ordinance, or rule for that matter, that the construction of a
building outside the Rizal Park is prohibited if the building is within the
background sightline or view of the Rizal Monument. Thus, there is no
legal duty on the part of the City of Manila "to consider," in the words of
the Dissenting Opinion, "the standards set under Ordinance No. 8119" in
relation to the applications of DMCI-PDI for the Torre de Manila since
under the ordinance these standards can never be applied outside the
boundaries of Rizal Park. While the Rizal Park has been declared a
National Historical Site, the area where Torre de Manila is being built is a
privately-owned property that is "not pap: of the Rizal Park that has been
declared as a National Heritage Site in 1095," and the Torre de Manila area
is in fact "well-beyond" the Rizal Park. x x x.

“To declare that the City of Manila failed to consider the standards
under Ordinance No. 8119 would involve making a finding of fact. A

11
finding of fact requires notice, hearing, and the submission of evidence to
ascertain compliance with the law or regulation. In such a case, it is the
Regional Trial Court which has the jurisdiction to hear the case, receive
evidence, make a proper finding of fact, and determine whether the Torre
de Manila project properly complied with the standards set by the
ordinance

 Unlike Quo Warranto, damages or other reliefs can be

granted in certiorari, prohibition and mandamus.
 Where CP&M are commenced in the CA or SC jurisdiction
over respondents are acquired upon receipt of Order
requiring the filing of COMENT.
 If, however, filed in the RTC upon valid service of summons.

QUO WARRANTO (R66)

 Subject Matters:
 1. Usurpation, intrusion, unlawful holding or exercise of
public office, position or franchise;
 2. Against public officer for forfeiture of his office who does
or suffers an act in violation of law;
 3. Against association with regard to franchises and rights
granted to them including the issue as to dissolution (This
must be filed in the RTC [Sec. 5.2, SRC]). If, however, QW is
against a corporation or persons who usurps and office in a
corporation the petition must be filed in the SEC (P.D. 902-A,
as amended).

 A Quo Warranto may involve also an elective office, in which

case election laws shall govern and the COMELEC, RTC or
MTC has jurisdiction over such actions.

 Quo Warranto must be commenced w/in 1 year after ouster

from office unless the delay is attributable to the acts of
responsible government official and not of the dismissed
employee (Cristobal v. Melchor).
 Subject to the “hierarchy of courts” rule QW may be filed in
the SC, CA or RTC (where the respondent or any of the
respondents resides). All interested parties must be
impleaded.

Distinguish from Quo Warranto in the Omnibus Election Code

Quo Warranto (Rule 66) Quo Warranto (Election Code)

Subject of the petition is in relation to an Subject of the petition is in relation to an
appointive office; elective office;

12
The issue is the legality of the occupancy of Grounds relied upon are: (a) ineligibility to
the office by virtue of a legal appointment; the position; or (b) disloyalty to the
Republic.
Petition is brought either to the Supreme May be instituted with the COMELEC by
Court, the Court of Appeals or the Regional any voter contesting the election of any
Trial Court; member of Congress, regional, provincial or
city officer; or to the MeTC, MTC or MCTC
if against any barangay official;
Filed within one (1) year from the time the Filed within ten (10) days after the
cause of ouster, or the right of the petitioner proclamation of the results of the election;
to hold the office or position arose;
Petitioner is the person entitled to the office; Petitioner may be any voter even if he is not
entitled to the office;
The court has to declare who the person When the tribunal declares the candidate-
entitled to the office is if he is the petitioner. elect as ineligible, he will be unseated but
the person occupying the second place will
not be declared as the one duly elected
because the law shall consider only the
person who, having duly filed his certificate
of candidacy, received a plurality of votes.

 Who May File QW Petition?

1. SolGen- if in the RTC in the City of Manila irrespective of

where the respondent reside; or

2. Public Prosecutor – either mandatory when directed by the

President or upon complaint or good reason that QW can be
established by proof; or discretionary at the request of a relator
provided: there is leave of court and indemnity bond.
3. A person claiming to be entitled to public office. He must show
clear right to the office (Sec. 5; Yap v. CSC).

 Judgment in QW cannot include damages as this must be

brought in a separate action within 1 year from entry of
judgment granting QW.
 The remedy if respondent refused to yield an office or deliver
books and papers is contempt.

EXPROPRIATION (R67)

 Expropriation is simply the procedure laid down by the ROC

for the exercise of Eminent Domain; the latter being the right
and authority of the State to take/appropriate private property
for public use upon payment of just compensation.
 SC defined “taking” in Rep. v. Sarabia – as deprivation of use
or control, dispossession, destruction, material impairment of
value of property.
 EXP. is proper when owner refuse to sell, or if he agrees,
cannot agree as to the price.

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Subject Mater of EXPROPRIATION:

1. The determination of the right to expropriate; and

2. Amount of just compensation (BOTH ORDERS ISSUED ARE
FINAL AND THEREFORE APPEALABLE).

 Any persons claiming ownership or any interest or occupying

the property should be impleaded. Even if the property is
owned by the government (Republic) if occupied by private
individual can be a proper subject of expropriation.
 In every expropriation there must be observance of due
process.
 There is default as to the first subject matter but never in the
determination of JC.
 All properties can be subject of EXP. except money.
Accordingly, even public property or those that are already
devoted to public use can be a proper subject of
expropriation.

Immediate Possession

 Possession of the property is allowed upon filing of the

complaint upon preliminary deposit in court of an amount:
1. Market value based on BIR zonal value– if real property; or
2. As determined by the court – if personal property.

In case of LGU expropriating real property, an Ordinance duly

passed and that there has been a prior valid and definite offer to
buy the property but was refused by the property owner required
(Sec. 19, RA 7160, V.M. REALTY vs. City of Parañaque).

RULE ON JUST COMPENSATION.

Determination of just compensation through the court-

appointed commissioners (National Power Corporation vs. Joson,
206 SCRA 520). Courts cannot dispense the appointment of
commissioners in expropriation action.

This must be so as just compensation should take into account

the consequential benefits and damages which may arise from the
expropriation. Furthermore, it is well to remember that the concept
of just compensation does not mean fairness to the property owner
alone. It must also be just to the public which ultimately bears the
cost of expropriation.” (RP represented by PEZA vs. Sps. Cancio.
G.R. No. 170147 , January 30, 2009).

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  Answer to expropriation complaint must be filed within the
period specified in the summons and must state all objections
available to the property serving copy thereof to the plaintiff.
If he has no objection to the expropriation he can only file
and serve appearance and manifestation designating or
identifying the property he claims interest.
 No counter-claim, cross-claim or third-party complaint shall
be allowed in expropriation. Expropriation is subject to
multiple appeals
 Period to perfect an appeal is 30 days, with a record of appeal.
 In case the judgment as to the right to expropriate is reversed
on appeal the case shall be remanded to the trial court with an
order to restore defendant’s possession to the property and be
allowed to recover damages as a consequence of deprivation
of possession and enjoyment of the his property.
 In cases of expropriation defendant is also entitled to
interests on the amount of compensation computed from the
date of taking of property.
 A judgment of condemnation shall be recorded in Registry of
Deeds where the property is located.
 Where the property owner agreed to the expropriation the
expropriating party cannot later on withdraw therefrom.
 Where the expropriating party failed to pay just
compensation within 5 years from the finality of judgment
the property owner shall have the right to recover possession
of the property.
 Where expropriator took possession of the property without
expropriation action being filed and property owner filed a
claim for just compensation several years later, the value of
the property at the time the action is filed shall be the basis of
JC (NAPOCOR VS. Mun. of Kabakan).

When plaintiff can immediately enter into possession of the real

property, in relation to RA 8974

(1)     Except for the acquisition of right-of-way, site or location for

any national government infrastructure project through
expropriation, the expropriator 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 Philippines payable
on demand to the authorized government depositary (Sec. 2, Rule 67).

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New system of immediate payment of initial just compensation

(1)     For the acquisition of right-of-way, site or location for any

national government infrastructure project through expropriation,
upon the filing of the complaint, and after due notice to the
defendant, the implementing agency shall immediately pay the
owner of the property the amount equivalent to the sum of (1) 100
percent of the value of the property based on the current relevant zonal
valuation of the BIR; and (2) the value of the improvements and/or
structures as determined under Sec. 7 of RA 8974 (Sec. 4, RA 8974).

FORECLOSURE OF REM (R68)

 KINDS OF FORECLOSURE:
1. Judicial (R68)
2. Extra-judicial (Act No. 3135)

An unregistered real estate mortgage can be foreclosed.

A foreclosing mortgagee must implead all parties with

interests over the mortgaged property (those superior or
subordinate to his mortgage rights and those in possession or
control of the property, or transferees or assignees of the
mortgagor.

Take note, however, that even if the first mortgagee is not

impleaded his rights to the mortgage property are not affected, but
he may intervene in the foreclosure action.

 Foreclose judgment is subject to multiple appeals – the first

subject matter determined by the court is the right to
foreclose which involve the determination of a breach of the
principal contract and the amount due, the order to
foreclose/sell at auction, confirmation of auction sale and
order as to deficiency judgment. Deficiency cannot be
executed after the death of the mortgagor but can be filed as
claim in settlement proceedings.
 There is no right of redemption with respect to judicial
foreclosure but equity of redemption, which 90-120 days from
entry of foreclosure judgment.
 In contrast there is 1 year redemption in extra-judicial
foreclosure. Take note of right of redemption under Sec. 47 of
the GBA.
 Provisional remedies of preliminary attachment and
receivership are available to foreclosing party in case of
foreclosure action, where the supposed mortgage property is
not sufficient to cover the debt or to preserved the property in

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 the meantime as it is in danger of being wasted, dissipated or
materially injured (R57 & 59, ROC).
 NOTE: A deficiency judgment cannot be enforced, however,
where the mortgagor is a non-resident and is not found in the
Phils. Therefore, in actions quasi in rem deficiency judgment
cannot be enforced.

PARTITION (R69)

Rule on Jurisdiction – based on assessed value (Real Property) or

declared value (personal property).

 Judicial partition may either arise as a consequence of

settlement of estate (Sec. 1, Rule 74) or co-ownership and how
the property shall be apportioned to co-owners (Rule 69,
Honorio v. Donoan).
 It is therefore an action involving several judgments,
including accounting, and therefore subject of multiple
appeals.
 Partition is mandatory because the law frowns upon co-
ownership.
 Note that in partition the appointment of 3 commissioners is
not mandatory unlike in expropriation, which the court will
appoint.

 Where the parties agree among themselves on the

division/allocation of the property among themselves the can
submit a project of partition to the court which could be the
basis of its decision that will be filed with the Registry of
Deeds thereafter.

Instances when a co-owner may not demand partition at any time:

(a)     There is an agreement among the co-owners to keep the

property undivided for a certain period of time but not exceeding
ten years (Art. 494);
(b)     When partition is prohibited by the donor or testator for a
period not exceeding 20 years (Art. 494);
(c)     When partition is prohibited by law (Art. 494);
(d)     When the property is not subject to a physical division and to
do so would render it unserviceable for the use for which it is
intended (Art. 495);
(e)     When the condition imposed upon voluntary heirs before
they can demand partition has not yet been fulfilled (Art. 1084).

Stages in every action for partition

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 A reading of the Rules will reveal that there are actually three
(3) stages in the action, each of which could be the subject of
appeal: (a) the order of partition where the property of the partition
is determined; (b) the judgment as to the accounting of the fruits
and income of the property; and (c) the judgment of partition.

 Prescription of action

(1)     Prescription of action does not run in favor of a co-

owner or co-heir against his co-owner or co-heirs as long as
there is a recognition of the co-ownership expressly or
impliedly (Art. 494).

(2)     The action for partition cannot be barred by

prescription as long as the co-ownership exists (Aguirre vs.
CA, 421 SCRA 310).

(3)     But while the action to demand partition of a co-owned

property does not prescribe, a co-owner may acquire
ownership thereof by prescription where there exists a clear
repudiation of the co-ownership and the co-owners are
apprised of the claim of adverse and exclusive ownership.
FORCIBLE ENTRY & UNLAWFUL DETAINER (R70)

The only SCA that is covered by Rules on Summary Procedure and

jurisdiction is exclusive with CFL, which exercises exclusive and
limited jurisdiction, and subject to mandatory barangay
conciliation (if applicable) pursuant to Sec. 408 of RA 7160.

It is also the only SCA which prohibits certain motions and

pleadings (Sec. 13).

It is also the only SCA where judgment is immediately executory

(but can be stayed by perfecting an appeal and posting of
supersedeas bond (Sec. 19) and deposit with the RTC the rent due
for continued occupancy of the property. The judgment of eviction
affirmed by the RTC but appealed to the CA is executory (Sec. 21).

 The period to file action under Rule 70 is one year from

accrual of the cause of action.
 Take note, however, that in case of forcible entry where the
ground is stealth the one year period should be counted from
the date of discovery and prohibition.

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  In unlawful detainer it is counted:
1. From date of demand to vacate – in case of several demands
from date of first demand if subsequent demands are mere
reiteration of the first demand;
2. From date of expiration of contract of lease or in case of
verbal lease or implied renewal of written contract of lease
from notice of termination;
3. In case of mere occupancy from revocation of permit of
occupancy.
4. Take note that accion publiciana or reivindicatoria while
possessory actions also they are not SCA but OCA.
Jurisdiction of courts on these actions is dependent upon the
value of the property involved.

In cases where demand is required by law it is deemed

jurisdictional. In forcible entry cases demand is not jurisdictional.

A pendency of an annulment of sale does suspend the prescriptive

period for actions under R70.

Issue of ownership can be resolved only provisionally by the CFL.

Provisional remedies of Injunction is available to the plaintiff

under R58 provided it is applied within 5 days after filing of the
action(Secs. 15 and 20, R 70).

 Since summary, the period to file answer is 10 days from

service of summons.
 Counter-claims and cross-claims allowed and answers thereto
served and filed within to days from notice. Cross-claims and
compulsory counter claims not set up barred.
 No trial except clarificatory hearings.
 Judgment to be rendered 30 days after submission of position
papers.
 Appeal by notice of appeal.
 Contempt is available pursuant to Sec. 3 (b), R71.
 If no answer is filed, by motion or motu proprio the court can
render judgment against defaulting defendant (Sec. 6,
Revised Rules on Summary Procedure)
 Subject to mediation and JDR.

Resolving defense of ownership

(1)     The assertion by the defendant of ownership over the disputed

property does not serve to divest the inferior court of its jurisdiction.

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The defendant cannot deprive the court of jurisdiction by merely
claiming ownership of the property involved (Rural Bank of Sta.
Ignacia vs. Dimatulac, 401 SCRA 742; Perez vs. Cruz, 404 SCRA 487). If
the defendant raises the question of ownership and the issue of
possession cannot be resolved without deciding the question of
ownership, the issue of ownership shall be resolved only to
determine the issue of possession (Sec. 3, RA 7691).

(2)     When the defendant raises the issue of ownership, the court
may resolve the issue of ownership only under the following
conditions:

(a)     When the issue of possession cannot be resolved without

resolving the issue of ownership; and
(b)     The issue of ownership shall be resolved only to determine the
issue of possession (Sec. 16).

Such judgment would not bar an action between the same parties
respecting title to the land or building. The resolution of the MeTC on
the ownership of the property is merely provisional or interlocutory.
Any question involving the issue of ownership should be raised and
resolved in a separate action brought specifically to settle the
question with finality (Roberts vs. Papio, GR 166714, Feb. 9, 2007).

CONTEMPT (R71)

Kinds:

Direct (misbehavior committed in the presence of or so near the

court; summary), and

Indirect.
 Jurisdiction may either be in the CFL or RTC.
 It may also be classified as criminal or civil.

Sec. 3, R71, enumerates the grounds for indirect contempt, viz:

 Misbehavior of an officer of the court
 Disobedience of or resistance to court processes, judgment or
in cases of ejectment after judgment ejecting him
 Abuse of or unlawful interference with court processes or
proceeding not constituting direct contempt
 Any improper conduct tending to impede, obstruct or
degrade the administration of justice, directly or indirectly
 Assuming to be an attorney or an office of a court
 Failure to obey subpoena (See also Rule 21).
 Rescue or attempt to rescue a person or property in the
custody of an officer or process of a court.

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 Contempt of court is disobedience to the court by acting in
opposition to its authority, justice and dignity. It signifies not only a
willful disregard or disobedience of the court’s orders but also
conduct tending to bring the authority of the court and the
administration of law into disrepute or, in some manner to impede
the due administration of justice (Siy vs. NLRC, GR 158971, Ausg. 25,
2005).

  The reason for the power to punish for contempt is that respect
of the courts guarantees the stability of their institution. Without such
guarantee, said institution would be resting on shaky foundation
(Cornejo vs.Tan, 85 Phil. 772).

  It is inherent in all courts; its existence is essential to the

preservation of order in judicial proceedings and to the enforcement
of judgments, orders and mandates of the courts, and consequently,
to the due administration of justice (Perkins vs. Director of Prisons, 58
Phil. 271).

Contempt proceedings has dual function:

(a)     Vindication of public interest by punishment of contemptuous

conduct; and

(b)     Coercion to compel the contemnor to do what the law requires

him to uphold the power of the Court, and also to secure the rights of
the parties to a suit awarded by the Court (Regalado vs. Go, GR
167988, Feb. 6, 2007).

Direct Contempt Indirect Contempt

In general is committed in the presence It is not committed in the presence of the court,
of or so near the court or judge as to but done at a distance which tends to belittle,
obstruct or interrupt the proceedings degrade, obstruct or embarrass the court and
before it; justice;
Acts constituting direct contempt are: Acts constituting indirect contempt are:

a)    Misbehavior in the presence of or so (a)  Misbehavior an officer of a court in the

near the court as to obstruct or interrupt performance of his official duties or in his
the proceedings before it; official transactions;

b)    Disrespect toward the court;  (b) Disobedience of or resistance to a lawful

writ, process, order, or judgment of a court,
c)    Offensive personalities towards including the act of a person who, after being
others; dispossessed or ejected from any real property
by the judgment or process of any court of
d)    Refusal to be sworn as a witness or competent jurisdiction, enters or attempts or
to answer as a witness; induces another to enter into or upon such real
property, for the purpose of executing acts of
e)    Refusal to subscribe an affidavit or ownership or possession, or in any manner
deposition when lawfully required to do disturbs the possession given to the person

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so (Sec. 1); adjudged to be entitled thereto;

f)     Acts of a party or a counsel which (c) Any abuse of or any unlawful interference
constitute willful and deliberate forum with the processes or proceedings of a court not
shopping (Sec. 1, Rule 7); constituting direct contempt under section 1 of
this Rule;
g)    Unfounded accusations or
allegations or words in a pleading (d) Any improper conduct tending, directly or
tending to embarrass the court or to indirectly, to impede, obstruct, or degrade the
bring it into disrepute (Re: Letter dated administration of justice;
21 Feb. 2005 of Atty. Noel Sorreda, 464
SCRA 32); (e)   Assuming to be an attorney or an officer of
a court, and acting as such without authority;

(f)    Failure to obey a subpoena duly served;

(g) The rescue, or attempted rescue, of a person

or property in the custody of an officer by virtue
of an order or process of a court held by him
(Sec. 3);

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