Legal Edge Provisional Remedies and Special Civil Actions April 21-22 2023 Senga FINAL

Provisional Remedies and
Special Civil Actions

FRANCESCA LOURDES M. SEÑGA
21-22 APRIL 2023
PROVISIONAL REMEDIES
 Ancillary or auxiliary remedies available during

the pendency of the action
 Provisional because they are temporary
measures
 Ancillary because they are incidents in and
dependent on the result of the main action
PROVISIONAL REMEDIES
 It is not sought for its own sake but to realize

upon relief sought and expected to be granted
in the main or principal action.
 It is available during the pendency of the
action to preserve and protect certain rights
and interests therein pending rendition of a final
judgment in the case. (Silangan Textile
Manufacturing Corporation vs. Demetria, G.R.
No. 166719, March 12, 2007)
PRELIMINARY ATTACHMENT
A writ of preliminary attachment is a provisional

remedy issued upon the order of the court where
an action is pending.
 Through the writ, the property or properties of
the defendant may be levied upon and held
thereafter by the sheriff as security for the
satisfaction of whatever judgment might be
secured by the attaching creditor against the
defendant.
The provisional remedy of attachment is available

in order that the defendant may not dispose of
the property attached, and thus prevent the
satisfaction of any judgment that may be secured
by the plaintiff from the former. (Chua v. China
Banking Corp., G.R. No. 202004, November 4,
2020, J. Hernando)
 Lien is a legal claim or charge on property, either real or

personal, as a collateral or security for the payment of
some debt or obligation.
 What it does is to give the party in whose favor the lien
exists the right to have a debt satisfied out of a
particular thing.
 It is a legal claim or charge on the property which
functions as a collateral or security for the payment of
the obligation. Thus, a lien functions as a form of security
for an obligation.
 A writ of preliminary attachment is a provisional remedy

issued by a court where an action is pending.
 It allows the levy of a property which will stand as
security for the satisfaction of the judgment that the
court may render in favor of the attaching party.
 It seizes upon property of an alleged debtor in advance
of final judgment and holds it subject to appropriation,
thereby preventing the loss or dissipation of the property
through fraud or other means.
 It also subjects the property of the debtor to the

payment of a creditor's claim, in those cases fit
which personal service upon the debtor cannot
be obtained.
 A writ of preliminary attachment is issued
precisely to create a lien. When a lien already
exists, this is already equivalent to an
attachment. (Tsuneishi Heavy Industries (Cebu),
Inc. v. MIS Maritime Corp., G.R. No. 193572, April
4, 2018)
In an action for sum of money with prayer for writ

of preliminary attachment, the RTC granted the
writ. However, the case was subsequently
dismissed or ruled against Plaintiff. Shouldn’t the
RTC have granted the complaint since the
provisional remedy was granted?
No. The order granting the writ is an interlocutory order

which only concerns the matter of the issuance of the
writ of preliminary attachment. The order granting the
writ did not completely dispose of the case, and did not
address the reasons for the dismissal of the case. It did
not directly tackle the merits of the Complaint. One is
for the issuance of the writ as an ancillary or
interlocutory remedy while the other is for the actual
disposition of the case. (East West Banking Corp. v. Cruz,
G.R. No. 221641, July 12, 2021, J. Hernando)
PURPOSES
(1) to seize the property of the debtor in advance
of final judgment and to hold it for purposes of
satisfying said judgment,
 grounds stated in paragraphs (a) to (e) of Section
1, Rule 57 of the Rules of Court
(2) to acquire jurisdiction over the action by actual or

constructive seizure of the property in those instances
where personal or substituted service of summons on the
defendant cannot be effected, as in paragraph (f) of Rule
1, Sec. 57
 In an action against a party who does not reside and is
not found in the Philippines, or on whom summons may
be served by publication (Philippine Commercial
International Bank vs. Alejandro, 533 SCRA 738, G.R.
No. 175587 September 21, 2007)
A filed a complaint for sum of money against B for unpaid

rentals. During the pendency of the case, A moved for the
court to issue an order of deposit directing B to deposit with
the court the unpaid rentals, which the RTC granted. After
B’s motion for reconsideration was granted, B assailed the
deposit order in the CA by petition for Certiorari. The CA
reversed the RTC and held that RTC gravely abused its
discretion in granting the deposit order, which was akin to
a provisional remedy ort a preliminary attachment, without
complying with the procedure under Rule 57.
What is a deposit order?

 A deposit order is an extraordinary provisional remedy
whereby money or other property is placed in
custodia legis to ensure restitution to whichever party
is declared entitled thereto after court proceedings. It
is extraordinary because its basis is not found in Rules
57 to 61
 but rather, under Sections 5(g) and 6, Rule 135

pertaining to the inherent power of every court to
amend and control its process and orders so as to
make them conformable to law and justice; as well
as to issue all auxiliary writs, processes and other
means necessary to carry its jurisdiction into effect.
 It is different from a writ of preliminary attachment
Is the deposit order tantamount to a prejudgment of the

case?
 No. The deposit order is merely provisional and
preservatory in character and not intended to be an
adjudication on the merits of the main case. By issuing
the Deposit Order, the RTC is merely holding
in custodia legis the amount corresponding to the
rental income to ensure that it can enforce the rights
of the parties after adjudication.
The Deposit Order of the RTC in this case is merely

preliminary. The precise interest of the parties in
the rental income will have to be determined by
the RTC after trial on the merits. (Guerrero Estate
Development Corp. v. Leviste & Guerrero Realty
Corp., G.R. No. 253428, February 16, 2022)
(Guerrero Estate Development Corp. v. Leviste &
Guerrero Realty Corp., G.R. No. 253428, February
16, 2022)
 At the commencement of the action or at any time before

entry of judgment
 The phrase, "at the commencement of the action,"
 refers to the date of the filing of the complaint
a time before summons is served on the defendant, or
even before summons issues. (Davao Light & Power Co.,
Inc. v. Court of Appeals, G.R. No. 93262, November 29,
1991)
The RTC issued a writ of preliminary attachment in

a civil action. The RTC rendered judgment on the
main case, which was appealed all the way to
the SC, where the SC ruled in favor of the
defendant, absolving him of any liability. The
judgment attained finality. May the writ of
attachment be reinstated?
No. Rule 57, Section 1 provides that the remedy of

preliminary attachment may be obtained at the
commencement of the action or at any time before
entry of judgment. This means that a preliminary
attachment writ ceases to exist upon entry of
judgment in the proceeding where it was issued. The
remedy of attachment is adjunct to the main suit,
therefore, it can have no independent existence
apart from a suit on a claim of the plaintiff against the
defendant
Hence, with the cessation of civil case with the

RTC's Decision having attained the status of
finality, the attachment has legally ceased to
exist. It ceased to exist not only because of the
final adjudication of the main case per se, but
also because it has lost basis in view of the
absolution from liability of the party to which it
was directed (UEM Mara Philippines Corp. v. Ng
Wee, G.R. No. 206563, October 14, 2020)
 Grounds are exclusive

 it entails interfering with property prior to a determination
of actual liability, it is issued with great caution and only
when warranted by the circumstances.
 The rules are strictly construed against the applicant
because it exposes the debtor to humiliation and
annoyance (Mt. Banahaw Wood Industries, Inc. v. Naga
Dynasty Allied Marketing Corp., G.R. No. 211179,
September 11, 2019)
 Rule 57, Sec. 1(a) In an action for recovery of a

specified amount of money or damages, other
than moral and exemplary, on a cause of
action arising from law, contract, quasi-
contract, delict of quasi-delict, against a party
who is about to depart from the Philippines, with
intent to defraud his creditor
 Rule 57, Sec. 1(b) In an action for money or

property embezzled or fraudulently misapplied
or converted to his own use by a public officer,
or an officer of a corporation, or an attorney,
factor, broker, agent or clerk, in the course of
his employment as such, or by a person in a
fiduciary capacity, or for a willful violation of
duty
 When the embezzlement of money or property

is committed by a defendant who is a public
officer, or an officer of a corporation, or is an
attorney, factor, broker or agent or clerk of the
plaintiff, it is not necessary to establish his
fiduciary capacity as this is assumed from the
nature of his position.
 it is only when the misappropriation was

committed by any other person (i.e., other than
those mentioned above) that his fiduciary
relationship with the plaintiff will have to be
established. (Consolidated Bank and Trust Corp.
v. Court of Appeals, G.R. Nos. 84588 & 84659,
[May 29, 1991], 274 PHIL 947-960)
 Rule 57, Sec. 1(C) In an action to recover the

possession of property unjustly or fraudulently
taken, detained or converted, when the
property, or any part thereof has been
concealed, removed or disposed of to prevent
its being found or taken by the applicant or an
authorized person
In the ill-gotten wealth cases against Respondents

children of the late President Marcos, it was alleged
that the property was concealed, by having the
same under the names of the respondents children,
who were minors at that time, with then President
Marcos taking advantage of his powers as president
and gravely abusing his powers under martial law. It
was alleged that he embarked on a systemic plan to
accumulate ill gotten wealth. Are these sufficient
allegations in support of the prayer for issuance of writ
of preliminary attachment?
YES. The allegations fall within Section 1 (b) and

(c) of Rule 57. The allegations of Former
President Marcos taking advantage of his
powers as President, gravely abusing his powers
under martial law, and embarking on a
systematic plan to accumulate ill-gotten wealth
suffice to constitute the case as one under Rule
57.
The allegation that the property was registered

under the names of respondents — minors at the
time of registration — is sufficient to allege that
the property was concealed, thus satisfying Rule
57, Section 1 (c). Republic v. Sandiganbayan,
G.R. No. 195295, October 5, 2016,
 Rule 57, Sec. 1(d) In an action against a party

who has been guilty of fraud in contracting the
debt or incurring the obligation upon which the
action is brought or in the performance thereof
 it must be shown that the debtor in contracting
the debt or incurring the obligation intended to
defraud the creditor. Republic vs. Mega Pacific
eSolutions, Inc., G.R. No. 184666, June 27, 2016)
 Mere non performance of the obligation without

showing fraud in contracting the debt or in the
performance of obligation is not enough (88 Mart Duty
Free, Inc. v. Juan, G.R. No. 167357 , November 25, 2008)
 the phrase “in the performance thereof” includes
within the scope of the grounds for issuance of a writ of
preliminary attachment those instances relating to
fraud in the performance of the obligation. (Republic vs.
Mega Pacific eSolutions, Inc., G.R. No. 184666, June 27, 2016)
Fraud
 voluntary execution of a wrongful act or a willfull
omission, while knowing and intending the effects that
naturally and necessarily arise from that act or
omission.
 anything calculated to deceive — including all acts
and omission and concealment involving a breach of
legal or equitable duty, trust, or confidence justly
reposed — resulting in damage to or in undue
advantage over another.
 described as embracing all multifarious means that

human ingenuity can device, and is resorted to for
the purpose of securing an advantage over another
by false suggestions or by suppression of truth; and it
includes all surprise, trick, cunning, dissembling, and
any other unfair way by which another is
cheated. (Tsuneishi Heavy Industries (Cebu), Inc. v.
MIS Maritime Corp., G.R. No. 193572, April 4, 2018)
The affidavit attached to the application for writ of

preliminary attachment alleged that X connived with
other defendants to commit fraud against plaintiff. Is this
sufficient for the issuance of the writ of preliminary
attachment on the ground of fraud?
NO. The affidavit, being the foundation of the

writ, must contain such particulars as to how the
fraud imputed to defendant was committed for
the court to decide whether or not to issue the
writ. Fraud is never presumed.
Absent any statement of other factual

circumstances to show that defendants, at the
time of contracting the obligation, had a
preconceived plan or intention not to pay, or
without any showing of how defendants
committed the alleged fraud, the general
averment in the affidavit is insufficient to support
the issuance of a writ of preliminary attachment.
(Ng Wee vs. Tankiansee, G.R. No. 171124, February 13,
2008)
May there be piercing the veil of corporate fiction

of A Company to hold the individual property of
the officers of A Corporation susceptible to writ of
preliminary attachment in the case where the
said officers are impleaded as parties?
YES. A Company must be treated as a mere

association of persons whose assets are unshielded by
corporate fiction. The officers’ participation in the
fraud is established by the execution of the
automation contract despite failing to meet the
mandatory requirements in the procurement process
and their signatures appear on the voided contract,
and their subcontracting thereof. (Republic vs. Mega
Pacific eSolutions, Inc., G.R. No. 184666, June 27,
2016)
There was a violation of the trust receipt

agreement for failure of entrustee to turn over the
proceeds of the sale of the goods covered by the
trust receipt to the entruster or to return said
goods. A civil action on the ground of fraud was
filed with prayer for issuance of writ of preliminary
attachment on the ground of fraud. Is there
ground to issue the attachment?
YES. In a civil case involving a trust receipt, the

entrustee’s failure to comply with its obligations
under the trust receipt constitute as civil fraud
provided that it is alleged, and substantiated
with specificity, in the complaint, its attachments
and supporting evidence. Here, the fraud is
committed in the performance of the obligation.
(Security Bank Corporation vs. Great Wall Commercial
Press Company, Inc., G.R. No. 219345, January 30,
2017)
A filed a complaint for Sum of Money and Damages

with Application for Issuance of Writ of Preliminary
Attachment against B. A averred that B committed
acts of fraud, deceit and gross bad faith in
contracting their indebtedness from A, with manifest
intention not to comply in good faith with their
respective obligations both in the trust receipts and
in the surety agreements.
The affidavit in support of the application for the

issuance of the writ showed the violation of trust
receipt agreements. A advanced a total of P189
Million as payment for the goods in favor of B. These
goods are considered highly saleable thus they
naturally expected immediate and regular
remittance of the sales proceeds. However, instead
of remitting the sales proceeds to A, B diverted the
delivery of the goods to a location different from
that indicated in the sales invoice.
Should the writ of preliminary attachment issue?

 Yes. The allegations in the affidavit reveal fraud in
violation of trust receipts payment. Instead of remitting
the sales proceeds to A, B misappropriated the same by
deliberately diverting the delivery of the goods to a
location different from that indicated in the sales
invoice. This constitutes fraud sufficient to warrant the
issuance of a writ of preliminary attachment (Chua v.
China Banking Corp., G.R. No. 202004, November 4,
2020, J. Hernando)
A filed a complaint against B for sum of money

with prayer for issuance of writ of preliminary
attachment, on the ground of fraud in B’s
performance of obligation because of B’s
withholding of payment for services rendered,
despite repeated demand. The complaint alleged
that there is no other sufficient security for the
claim sought to be enforced, but this is not shown
in the affidavit in support of the application for the
writ.
B claimed it refused to pay the claim against it since it

should be set off against A’s liability for losses incurred by B
due to A’s delay in performing its obligation. Is this fraud
sufficient to warrant issuance of writ of preliminary
attachment?
 No. B’s non-payment is not an intentional act or a willful
omission calculated to deceive and injure A. B is asserting
a claim which it believes it has the right to do so under the
law. Whether B’s position is legally tenable is a different
matter. It is an issue fit for the court to decide.
Even assuming that B is wrong in refusing to pay A,

this is nevertheless not the fraud contemplated in
Section 1 (d), Rule 57. Civil law grants A various
remedies in the event that the trial court rules in its
favor such as the payment of the obligation,
damages and legal interest. The issuance of a writ
of preliminary attachment is not one of those
remedies. (Tsuneishi Heavy Industries (Cebu), Inc. v.
MIS Maritime Corp., G.R. No. 193572, April 4, 2018)
D operated a gasoline station. A, B and C, approached D,

and proposed for D to supply them diesel and gasoline
fuel. D filed a complaint for sum of damages with prayer for
ex-parte issuance of Writ of Preliminary Attachment against
A, B and C, alleging, among others that A, B and C incurred
an outstanding obligation of P7,416,918.55 for the unpaid
diesel and the writ should be issued due to fraud in
contracting the debt or incurring the obligation upon which
the action is brought, or in the performance thereof.
The RTC granted the writ of preliminary

attachment but it was subsequently discharged
by the CA in a petition for cedrtiorari, upon finding
it was irregularly issued. The CA found that after
reading and hearing the allegations of both
parties, D’s allegations did not meet the
requirements of the law regarding fraud.
Should the writ of preliminary attachment issue?
No. The allegations are insufficient to show fraud. There

were no wrongful acts or willful omissions shown to
establish that A, B and C knowingly deceived D to enter
into the contract or to perform the obligation. Non-
payment of a debt or non-performance of an
obligation does not automatically equate to a
fraudulent act. D failed to prove with sufficient
specificity the alleged fraudulent acts of A, B and C.
(Dumaran v. Llamedo, G.R. No. 217583, August 4, 2021,
J. Hernando)
 Rule 57, Sec. 1(e) In an action against a party

who has removed or disposed of his property or
is about to do so with intent to defraud his
creditors
 Rule 57, Sec. 1(f) In an action against a party

who does not reside and is not found in the
Philippines, or on whom summons may be
served by publication
 convert actions in personam to one quasi in
rem or in rem, in case the defendant does
not reside and is not found in the Philippines,
in order to effect service of summons by
publication
 In actions in personam, such as a case for

collection of sum of money, summons must be
served by personal or substituted service,
otherwise the court will not acquire jurisdiction
over the defendant.
 Quasi in rem actions are actions involving the

status of a property over which a party has
interest. They are not binding upon the whole
world as they affect only the interests of the
particular parties. (Navarro v. Navarro, G.R. No.
239023, August 14, 2019)
 An action in rem is an action against the thing
itself instead of against the person. (Biaco v.
Philippine Countryside Rural Bank, G.R. No. 161417,
February 8, 2007)
 In case the defendant does not reside and is

not found in the Philippines (and hence
personal and substituted service cannot be
effected), the remedy of the plaintiff in order for
the court to acquire jurisdiction to try the case is
to convert the action into a proceeding in
rem or quasi in rem by attaching the property of
the defendant.
Section 17, Rule 14 Extraterritorial Service

 Where the defendant does not reside and is not found in
the Philippines, and the action affects the personal status
of the plaintiff, or relates to, or the the subject of which, is
property within the Philippines, in which the defendant
has or claims a lien or interest, actual or contingent, or in
which the relief demanded consists wholly, or in part, in
excluding the defendant from any interest therein, or the
property has been attached within the Philippines
Is jurisdiction over the parties required in
actions quasi in rem or in rem?
NO. For the court to acquire jurisdiction in

actions quasi in rem, it is necessary only that it
has jurisdiction over the res.
However, jurisdiction over the parties is required
regardless of the type of action — whether the
action is in personam, in rem, or quasi in rem, to
satisfy the requirements of due process.
An for collection of sum of money was filed

against a non-resident not found in the
Philippines, with prayer for attachment of
defendant’s properties in the Philippines. The RTC
granted the application for issuance of writ but
the shares of stock were not attached and no writ
was issued. Plaintiff moved and was granted to
serve summons by publication. Summons was
published in the Manila Times. Was there proper
service of summons?
NO. The case is an action in personam, and

jurisdiction over it can only be acquired through
personal or substituted service of summons.
 The extraterritorial service of summons made prior
to the actual attachment of property did not serve
to vest jurisdiction to the trial court over the
petitioner nor the res.
The operative act which converts the action into

an action quasi in rem and, thus, conferred the
trial court with jurisdiction over the action, is the
actual attachment of the property. (Tradition
Asia Pacific Pte. Ltd. v. Moya, G.R. No. 232092,
December 13, 2017)
Y sought damages against X for the improper

issuance of the writ of preliminary attachment. X
claimed good faith. X claims that even if Y is
considered a resident of the Philippines,
attachment is still proper under Section 1,
paragraph (f), Rule 57 since Y is a resident who is
temporarily out of the Philippines upon whom
service of summons may be effected by
publication. Is X correct?
NO. Where the defendant is a resident who is

temporarily out of the Philippines, attachment of
his/her property in an action in personam, is not
always necessary in order for the court to
acquire jurisdiction to hear the case.
Sec. 18, Rule 14 on service of summons on
residents temporarily out of the Philippines,
provides for extraterritorial service.
However, the Supreme Court has held that

substituted service of summons is the normal
mode of service of summons that will confer
jurisdiction on the court over the person of
residents temporarily out of the Philippines.
Thus, in actions in personam against residents
temporarily out of the Philippines, the court need
not always attach the defendant’s property in
order to have authority to try the case. (Philippine
Commercial International Bank vs. Alejandro, G.R. No. 175587. September 21,
2007)
SUBSTITUTED SERVICE, Rule 14, Sec. 6

 (a) leaving copies of the summons at the
defendant’s residence with some person, 18 years
of age and of sufficient discretion residing therein,
 (b) by leaving copies at the defendant’s office or
regular place of business with some competent
person in charge thereof, which includes, but is not
limited to one who customarily receives
correspondences for the defendant
 (c) if refused entry upon making purpose known, by

leaving with any of the officers of the homeowner’s
association or condominium corporation, or its
chief security officer in charge of the community or
building where the defendant may be found, and
 (d) by sending an electronic mail to defendant’s
electronic mail address, if allowed by the court
(Rule 14, Sec. 6)
 An order of attachment may be issued either ex

parte or upon motion with notice and hearing
by the court in which the action is pending, or
by the Court of Appeals or the Supreme Court
(Rule 57, Sec. 1)
 Writ of attachment may be ordered issued ex
parte provided there is compliance with
Section 3, Rule 57 (Affidavit and Bond)
(Consolidated Bank and Trust Corp. v. Court of
Appeals, G.R. Nos. 84588 & 84659, May 29, 1991)
The absence of notice or hearing is allowed on

the ground that the defendant might abscond or
dispose of his property before a writ of
attachment is actually issued.
The judge before whom the application is made
has full discretion in considering the supporting
evidence proferred by the
applicant. (Consolidated Bank and Trust Corp. v.
Court of Appeals, G.R. Nos. 84588 & 84659, May 29,
1991)
Is the issuance of writ of preliminary attachment

ex parte or without prior notice and hearing in
violation of defendant’s right to due process?
NO. There is nothing in the Rules of Court that

conditions such issuance on prior notice and
hearing. A hearing would defeat the purpose of
this provisional remedy. The time which such a
hearing would take could be enough to enable
the defendant to abscond with or dispose of his
property before a writ of attachment is issued.
(Tay Chun Suy v. Court of Appeals, G.R. No.
91004-05, August 20, 1992)
Bond and Affidavit of applicant, or of some person who

personally knows the facts, showing that:
 A sufficient cause of action exists
 Any of the grounds present
 There is no other sufficient security for the claim sought to
be enforced
 The amount due the applicant/value of property is as
much as the sum for which the order is granted above all
legal counterclaims
 The failure to allege in the affidavit the requisites

prescribed in Section 3, Rule 57 for the issuance of
a writ of preliminary attachment, renders the writ
issued against the property of the defendant
fatally defective,
 the judge issuing it is deemed to have acted in
excess of his jurisdiction.
Plaintiff stated in his affidavit that a sufficient cause of

action exists against the defendant, but he did not
state therein that "the case is one of those mentioned
in Section 1 hereof; that there is no other sufficient
security for the claim sought to be enforced by the
action; and that the amount due to the applicant is as
much as the sum for which the order granted above
all legal counterclaims. Should the writ issue?
NO, for failure to comply with Section 3, Rule 57.

(K.O. Glass Construction Co., Inc. v. Valenzuela
 Bond is executed to the adverse party in an amount fixed

by the court, which may be the amount sufficient to
satisfy the applicant’s demand or the value of the
property attached as stated by the applicant, exclusive
of costs (Rule 57, Sec. 4)
 Affidavit must Sufficiently establish the presence of
grounds
 An order of attachment cannot be issued on a general
averment, such as one ceremoniously quoting from a
pertinent rule. (Allied Banking Corp. v. South Pacific Sugar
Corp., G.R. No. 163692, February 4, 2008)
the issuance of a writ of preliminary attachment is

conditioned on the filing of a bond unless the
applicant is the State. Where the State is the
applicant, the filing of the attachment bond is
excused. (Republic v. Garcia, G.R. No. 167741,
July 12, 2007)
 Bond is in an amount fixed by the court in the

order granting the issuance of the writ
 Conditioned that the bond will pay all costs
that may be adjudged to the adverse party
and all damages which he may sustain by
reason of the attachment, if the court shall
finally adjudge the applicant was entitled
thereto (Rule 57, Sec. 4)
The RTC issued the writ of preliminary attachment.

B moved to discharge the same. Which was
denied. In a petition for certiorari, CA reversed the
RTC and found there was grave abuse of
discretion in issuing the writ of preliminary
attachment.
Should the writ of preliminary attachment be
issued?
No. First, There is no showing in the affidavit in support of

the application that A has no other sufficient security for
the claim sought to be enforced, even if it alleged in
the complaint. This is a requirement under Section 3,
Rule 57. There is no justification for the omission in the
affidavit and the acts also do not warrant the setting
aside of technical rules. Rules governing the issuance of
a writ of preliminary attachment are strictly construed.
Second, B did not act with fraud in refusing to pay the

obligation. When fraud is invoked as a ground for the
issuance of a writ of preliminary attachment under Rule
57, there must be evidence clearly showing the factual
circumstances of the alleged fraud. Fraud cannot be
presumed from a party's mere failure to comply with his
or her obligation. In all averments of fraud, the
circumstances constituting it must be stated with
particularity. (Tsuneishi Heavy Industries (Cebu), Inc. v. MIS
Maritime Corp., G.R. No. 193572, April 4, 2018)
The attachment bond answers only for the payment of all

damages which defendant may sustain if the court shall
finally adjudge that plaintiff was not entitled to
attachment. (China Banking Corp. v. Asian Construction
and Development Corp., G.R. No. 158271, April 8, 2008)
 Defendant cannot only claim from the bond

because of the sale of the attached properties
prior to final judgment (China Banking Corp. v.
Asian Construction and Development Corp.,
G.R. No. 158271, April 8, 2008)
 Sec. 11, When attached property may be
sold after levy on attachment and before
entry of judgment.
Any application for damages arising from the improper,

irregular or excessive attachment shall be governed by
Section 20, Rule 57 (Excellent Quality Apparel, Inc. v.
Visayan Surety & Insurance Corp., G.R. No. 212025 , July
1, 2015)
Sec. 20, Rule 57
 An application for damages on account of

improper, irregular or excessive attachment
must be filed before trial or perfection of
appeal or before judgment becomes
executory
 Damages may only be awarded after proper
hearing and shall be included in the judgment
in the main case
A writ of attachment was issued and defendant

filed a counter-bond. Judgment was later
rendered dismissing the complaint on the
ground of laches, and directing Plaintiff to pay
Defendant the refund for the counter-bond and
damages for Defendant’s lost profits because of
the attachment.
Was the ruling directing payment of refund of
counter-bond and damages correct?
NO. Plaintiff cannot be held directly liable for the costs

adjudged to and the damages sustained by
Defendant because of the attachment. Section 4 of
Rule 57 lays down the rule that the attachment bond
will pay all the costs which may be adjudged to the
adverse party and all damages which he may sustain
by reason of the attachment, if the court shall finally
adjudge that the applicant was not entitled thereto.
The court should have ordered the execution of the

judgment award on the attachment bond. To impose
direct liability to Plaintiff would defeat the purpose of
the attachment bond, which was not dissolved despite
the lifting of the writ of preliminary attachment.
Only if the attachment bond is insufficient to cover the
judgment award can plaintiff be held liable (Phil-Air
Conditioning Center v. RCJ Lines, G.R. No. 193821,
November 23, 201)
Sec. 20, Rule 57
An application for damages on the attachment bond

shall only be claimed, ascertained, and granted in
accordance with Section 20, Rule 57. Under the said
provision, an application for damages against the bond
presupposes that a trial on the merits in the main case was
conducted and the defendant obtained a favorable
judgment from the court. Moreover, the damages to
which the defendant would be entitled to, if any, would
require the conduct of a hearing. (Jorgenetics Swine
Improvement Corp. v. Thick & Thin Agri-Products, Inc., G.R.
Nos. 201044 & 222691, May 5, 2021, J. Hernando)
3 STAGES IN THE GRANT OF THE WRIT
OF PRELIMINARY ATTACHMENT
 (1) the court issues the order granting the

application;
 (2) the writ of attachment issues pursuant to
the order granting the writ; and
 (3) third, the writ is implemented.
 For the initial two stages, it is not necessary
that jurisdiction over the person of the
defendant be first obtained.
3 STAGES IN THE GRANT OF THE WRIT
OF PRELIMINARY ATTACHMENT
 However, once the implementation of the writ

commences, the court must have acquired
jurisdiction over the defendant (EXCEPT IS
GROUND IS SEC. 1(F), RUL,E 57) for without such
jurisdiction, the court has no power and
authority to act in any manner against the
defendant. Any order issuing from the Court will
not bind the defendant.(Mangila v. Court of
Appeals, G.R. No. 125027, August 12, 2002)
 the petition for a writ of preliminary

attachment may be granted and the writ
itself issued before the defendant is
summoned
 BUT the writ of attachment cannot
be implemented until jurisdiction over the
person of the defendant is obtained.
 Exception: Rule 57, Sec. 1(f)
Ex parte issuance of the writ or preliminary

attachment before summons is served would not
bind and affect the defendant until and unless
jurisdiction over his person is eventually obtained
by the court, either by service on him of summons
or other coercive process or his voluntary
submission to the court's authority (Davao Light &
Power Co., Inc. v. Court of Appeals, G.R. No.
93262, November 29, 1991)
The requirement of prior or contemporaneous

service of summons shall not apply where the
summons could not be served personally or by
substituted service despite diligent efforts, or the
defendant is a resident of the Philippines temporarily
absent therefrom, or the defendant is a non-resident
of the Philippines, or the action is one in rem or quasi
in rem
 Extraterritorial service of summons not to acquire
jurisdiction over the person but to comply with the
dictates of due process
 Writ of attachment - requires the

sheriff of the court to attach so much of the
property in the Philippines of the party against
whom it is issued, not exempt from execution, as
may be sufficient to satisfy the applicant's
demand
 Sec. 13, Rule 39 – Property Exempt from
Attachment
Family Home
 The actual value of the family home shall not
exceed, at the time of its constitution, the
amount of P300,000 in urban areas and
P200,000 in rural areas.
 In excess of the foregoing, not exempt
Exempt from Execution, Sec. 13, Rule
39
(m) Properties specially exempted by law.

 government funds and properties may not be
seized under writs of execution or garnishment to
satisfy such judgment is
 Not apply to GOCC property. GOCC has a
personality of its own, distinct and separate from
that of the government. (Rizal Commercial
Banking Corp. v. De Castro, G.R. No. L-34548,
November 29, 1988)
EXCEPTION TO EXCEPTION
 But no article or species of property mentioned

in this section shall be exempt from execution
issued upon a judgment recovered for its price
or upon a judgment of foreclosure of a
mortgage thereon.
Properties were attached before summons is

served. Is this valid? Did the subsequent service of
summons cure the defect?
NO. The attachment of properties before the
service of summons on the defendant is invalid,
even though the court later acquires jurisdiction
over the defendant.
At the very least, then, the writ of attachment

must be served simultaneously with the service
of summons before the writ may be enforced. As
the properties of the petitioners were attached
by the sheriff before he had served the
summons on them, the levies made must be
considered void. (Oñate v. Abrogar, G.R. Nos.
107303 & 107491, February 23, 1995)
The Writ of Preliminary Attachment was issued and

implemented. However, the summons was served only
three months after the implementation of the writ of
attachment. Plaintiff argues that this is valid since prior
to or contemporaneous service of summons under
Section 5, Rule 57 admits of exceptions, such as in this
case where summons could not be immediately served
on defendant at his address as he could not be located
thereat and he was not at his new residence for being
out on a business trip. Is plaintiff correct?
 No. The plaintiff could have resorted to other modes

of service of summons. Whenever the defendant's
whereabouts are unknown and cannot be
ascertained by diligent inquiry, service may, by leave
of court, be effected upon him by publication in a
newspaper of general circulation. As to the claim that
defendant was on a business trip at the time of
service of summons, there is also another rule on
residents temporarily outside the Philippines, and even
substituted service could be availed of in such case.
 The summons belatedly served on defendant

cannot be deemed to have cured the fatal
defect in the enforcement of the writ. The trial
court cannot enforce such a coercive process
on defendant without first obtaining jurisdiction
over her person.
 The preliminary writ of attachment must be served

after or simultaneous with the service of summons
on the defendant whether by personal service,
substituted service or by publication as warranted
by the circumstances of the case. The subsequent
service of summons does not confer a retroactive
acquisition of jurisdiction over her person because
the law does not allow for retroactivity of a
belated service. (Mangila v. Court of Appeals, G.R. No.
125027, August 12, 2002)
After attachment, may the attached property be

released to the Plaintiff?
NO. The garnished funds or attached properties could

only be released to the attaching party after a
judgment in his favor is obtained.
Under no circumstance can the garnished funds or
attached properties, under the custody of the sheriff or
the clerk of court, be released to the attaching party
before the promulgation of judgment. (Excellent Quality
Apparel, Inc. v. Visayan Surety & Insurance Corp., G.R. No.
212025 , July 1, 2015)
SECTION 7. Attachment of real and
personal property; recording thereof .
 Real property, or growing crops thereon, or any interest

therein
 by filing with the registry of deeds a copy of the order,
 together with a description of the property attached,
 and a notice that it is attached,
 and by leaving a copy of such order, description, and
notice with the occupant of the property, if any, or
with such other person or his agent if found within the
province.
 Where the property has been brought under

the operation of either the Land Registration
Act or the Property Registration Decree
 the notice shall contain a reference to the
number of the certificate of title, the volume
and page in the registration book where the
certificate is registered, and the registered
owner or owners thereof
Registrar of Deeds
 must index attachments filed in the names of the

applicant, the adverse party, or the person by whom
the property is held or in whose name it stands in the
records.
 If the attachment is not claimed on the entire
area of the land covered by the certificate of title, a
description sufficiently accurate for the
identification of the land or interest to be affected
shall be included in the registration of such
attachment;
Personal property capable of manual delivery, by

taking and safely keeping it in his custody, after
issuing the corresponding receipt therefor;
 It should not be left with the plaintiff/creditor or
plaintiff’s warehouse. If he can deposit them to
plaintiff's warehouse, there is no reason why he
could not do so in another warehouse.(Sarmiento
v. Victoria, A.M. No. P-00-1432, October 19,
2000)(NBI v. Tuliao, A.M. No. P-96-1184 , March 24,
1997)
 A verbal declaration of seizure or service of a

writ of attachment is not sufficient. There must
be an actual taking of possession and placing
of the attached property under the control of
the officer or someone representing him.
(Hollister vs. Goodale, 8 Conn. 332, 21 Am.
Dec. 674; Jones vs. Howard, 99 Ga. 451, 59 Am
St. Rep. 231) (Sarmiento v. Victoria, A.M. No. P-
00-1432, [October 19, 2000], 397 PHIL 745-750)
Stocks or shares, or an interest in stocks or

shares, of any corporation or company
 by leaving with the president or managing
agent thereof, a copy of the writ, and a
notice stating that the stock or
interest of the party against whom the
attachment is issued is attached in
pursuance of such writ
Debts and credits, including bank deposits, financial
interest, royalties, commissions and other personal
property not capable of manual delivery
 Relate to Section 9 (c), Rule 39

 Garnishment of debts and credits
a specie of attachment for reaching
any property or credits pertaining or
payable to a judgment debtor
GARNISHMENT
 it is a forced novation by the substitution of

creditors: the judgment debtor, who is the
original creditor of the garnishee is, through
service of the writ of garnishment, substituted
by the judgment creditor who thereby
becomes creditor of the garnishee.
GARNISHMENT
 Garnishment has also been described as a

warning to a person having in his possession
property or credits of the judgment debtor,
not to pay the money or deliver the property
to the latter, but rather to appear and answer
the plaintiff's suit. (Perla Compania De
Seguros, Inc. v. Ramolete, G.R. No. 60887,
[November 13, 1991], 280 PHIL 530-539)
GARNISHMENT
Does summons have to be served on

the garnishee for the court to acquire
jurisdiction to bind the person of said
garnishee?
GARNISHMENT
NO. The garnishee need not be impleaded

as a party to the case. All that is necessary
for the trial court lawfully to bind the person
of the garnishee or any person who has in his
possession credits belonging to the judgment
debtor is service upon him of the writ of
garnishment. (Perla Compania De Seguros,
Inc. v. Ramolete, G.R. No. 60887, November
13, 1991)
SECTION 8. Effect of attachment of debts,
credits and all other similar property.—
 the garnishee [the third person] is obliged to deliver

the credits, etc. to the proper officer issuing the writ
and the law exempts from liability the person having
in his possession or under his control any credits or
other personal property belonging to the defendant,
if such property be delivered or transferred, to the
clerk, sheriff, or other officer of the court in which the
action is pending (Engineering Construction Inc. v.
National Power Corp., G.R. Nos. L-34589 & L-34656,
[June 29, 1988], 246 PHIL 8-17)
GARNISHMENT
 garnishee shall be released from all

responsibilities over such amount after delivery
thereof to the sheriff. The reason for the rule is
self-evident. To expose garnishees to risks for
obeying court orders and processes would
only undermine the administration of
justice. (Engineering Construction Inc. v.
National Power Corp., G.R. Nos. L-34589 & L-
34656, June 29, 1988)
SECTION 9. Effect of attachment of interest in
property belonging to the estate of a decedent.—
 shall not impair the powers of the executor,

administrator, or other personal representative of the
decedent over such property for the
purpose of administration
SECTION 9. Effect of attachment of interest in property
belonging to the estate of a decedent.—
 personal representative shall report the

attachment to the court when any petition for
distribution is filed, and in the order made upon
such petition, distribution may be awarded to
such heir, legatee, or devisee,
 but the property attached shall be ordered
delivered to the sheriff making the levy, subject
to the claim of such heir, legatee, or devisee, or
any person claiming under him
SECTION 10. Examination of party whose property is
attached and persons indebted to him or controlling his
property; delivery of property to sheriff .—
 notice need only be given to the garnishee

 The provision does not require that notice be
furnished the defendant himself, except when
there is a need to examine said defendant for
the purpose of giving information respecting his
property (Oñate v. Abrogar, G.R. Nos. 107303 &
107491, February 21, 1994)
SECTION 11. When attached property may be sold
after levy on attachment and before
entry of judgment.
 an attached property may be sold after levy on

attachment and before entry of judgment
whenever it shall be made to appear to the court in
which the action is pending, upon hearing with
notice to both parties,
that the attached property is perishable or that the
interests of all the parties to the action will be
subserved by the sale of the attached property.
China Banking Corp. v. Asian Construction and
Development Corp., G.R. No. 158271, April 8, 2008)
What do you mean by perishable property?

 It means such property as contained in itself
the elements of speedy decay, such as fruits,
fish, fresh meats (China Banking Corp. v. Asian
Construction and Development Corp., G.R.
No. 158271, April 8, 2008)
How can it be determined whether the interest of

all parties to the action will be subserved by the
sale of the attached property?
 This is a question of fact that can only be
resolved upon examination of the evidence
presented by both parties, subject to the
determination of the court. (China Banking
Corp. v. Asian Construction and Development
Corp., G.R. No. 158271, April 8, 2008)
Once issued, a writ of attachment may be

dissolved or discharged on the following grounds:
 (a) the debtor has posted, a counter-bond or has
made the requisite cash deposit, RULE 57, SEC. 12;
 RULE 57, SEC. 13
 (b) the attachment was improperly or irregularly
issued as where there is no ground for
attachment, or the affidavit and/or bond filed
therefor are defective or insufficient;
 (c) the attachment is excessive, but the

discharge shall be limited to the excess;
 (d) the property attachment is exempt from
preliminary attachment; or
 (e) the judgment is rendered against the
attaching creditor. (Marphil Export Corporation
vs. Allied Banking Corporation, G.R. No. 187922,
September 21, 2016)
Notice and Hearing Required
 Whether under Sec. 12 or Sec. 13 of Rule 57, the

discharge or dissolution of said writ shall be
granted only “after due notice and hearing.”
(Magaling v, Ong, G.R. No. 173333, 13 August
2008)
 For grounds under Sec. 13, Rule 57

 a writ of attachment may be discharged without
filing a cash bond or counter-bond only if the writ of
preliminary attachment itself has already been
proven to be improperly or irregularly issued or
enforced, or the bond is insufficient. (Dumaran v.
Llamedo, G.R. No. 217583, August 4, 2021, J.
Hernando)
 Is a writ of preliminary attachment permanent

lien in one’s property?
 No. There are two ways upon which the writ
may be discharged under Rule 57, Sections 12
and 13. The law limits the various modes upon
which an attachment may be discharged (Coca-
Cola Femsa Philippines, Inc. v. Pacific Sugar Holdings Corp., G.R. No.
241333, June 27, 2022)
D operated a gasoline station. A, B and C, approached

D, and proposed for D to supply them diesel and
gasoline fuel. They all agreed that , B and C would pay
in cash. D filed a complaint for sum of damages with
prayer for ex-parte issuance of Writ of Preliminary
Attachment against A, B and C.
It was alleged among others that A, B and C

incurred an outstanding obligation of
P7,416,918.55 for the unpaid diesel and the writ
should be issued due to fraud in contracting the
debt or incurring the obligation upon which the
action is brought, or in the performance thereof.
The RTC granted the writ of preliminary

attachment but it was subsequently discharged
by the CA in a petition for certiorari, upon finding
it was irregularly issued. The CA found that after
reading and hearing the allegations of both
parties, D’s allegations did not meet the
 Was the CA correct in discharging the writ of

preliminary attachment without the posting of a
counter-bond?
 Yes. The writ of attachment was improperly
issued by the RTC as D failed to prove that fraud
existed. A counter-bond is not necessary.
(Dumaran v. Llamedo, G.R. No. 217583, August
4, 2021, J. Hernando)
D argues that in FCY Construction Group, Inc. v. Court of

Appeals, G.R. No. 123358, February 1, 2000, the SC ruled
that the motion to dissolve attachment on the ground
that it is irregularly issued should not be allowed when it
seeks to establish that the allegations in the application
and affidavit on which the writ was based were false
because the hearing on such motion for dissolution of
the writ would be tantamount to a trial on the merits.
Does FCY Construction apply in this case?
No. In FCY Construction, the writ was issued and there was a
motion to discharge it, before trial on the merits. This rule will
not apply when there is already a regular trial on the merits
of the main action, and not only on the motion to discharge
writ. Here, the CA found that after reading and hearing the
allegations of both parties, D’s allegations did not meet the
The CA found that the writ of preliminary

attachment had been irregularly issued, thus, a
motion to discharge the writ under Rule 57,
Section 13 was the proper remedy. A counter-
bond under Section 12 is not necessary.
(Dumaran v. Llamedo, G.R. No. 217583, August 4,
2021, J. Hernando)
Should a party wait until the property is seized

before seeking the dissolution of the attachment
upon security?
NO. The defendant may prevent the seizure of

his property under attachment by giving
security in an amount sufficient to satisfy the
claims against him.
SECTION 12. Discharge of attachment
upon giving counter-bond.
 The filing of a counterbond is a speedier way of

discharging the attachment writ maliciously
sought out by the attaching creditor instead of
the other way, which, in most instances would
require presentation of evidence in a fullblown
trial on the merits, and cannot easily be settled in
a pending incident of the case. (Davao Light &
Power Co., Inc. v. Court of Appeals, G.R. No.
93262, November 29, 1991)
 Cash Deposit or Counter-Bond: equal. To that fixed by the

court in the order of attachment, exclusive of costs
 However, if attachment sought to be discharged is with
respect to a particular property, counter-bond shall be
equal to the value of that property determined by the
court
 Should counter-bond be insufficient, give additional
counter-bond
 Failureto give additional will allow attaching party to file
for a new order of attachment (Rule 57, Sec. 12)
The cash deposit or counter-bond shall secure

the payment of any judgment that
the attaching party may recover in the action.
The counter-bond stands in place of the
property so released (Phil-Air Conditioning
Center v. RCJ Lines, G.R. No. 193821, November
23, 2015)
What is the purpose of the counter-bond?

 The filing of the counter-bond will serve the
purpose of preserving the defendant's
property and at the same time give the
plaintiff security for any judgment that may be
obtained against the defendant. (K.O. Glass
Construction Co., Inc. v. Valenzuela, G.R. No.
L-48756, September 11, 1982)
When will the court order the discharge under Section

12, Rule 57?
 The court will order the discharge of
the attachment after (1) the movant makes a cash
deposit or posts a counter-bond and (2) the court
hears the motion to discharge the attachment with
due notice to the adverse party (Phil-Air Conditioning
Center v. RCJ Lines, G.R. No. 193821, November 23,
2015)
May the defendant, after procuring the dissolution

of the attachment by filing a counterbond, ask for
the cancellation of the counterbond on the
ground that the order of attachment was
improperly issued?
NO. The writ had already been quashed by filing

a counterbond, hence, another motion to quash
it would be pointless.(Mindanao Savings & Loan
Association, Inc. v. Court of Appeals, G.R. No.
84481, April 18, 1989)
Sec. 13, Rule 57
 Under Sec. 13, Rule 57, when the attachment

is challenged for having been illegally or
improperly issued, there must be a hearing,
with the burden of proof to sustain the writ
being on the attaching creditor.
Sec. 13, Rule 57
 That hearing embraces not only the right to

present evidence but also a reasonable
opportunity to know the claims of the opposing
parties and meet them. It means a fair and
open hearing.
 Written opposition is insufficient (Magaling v,
Ong, G.R. No. 173333, 13 August 2008)
Sec. 13, Rule 57
Plaintiff entered into a joint venture with

Defendant, through its president, Mr. X, over a
construction project where Plaintiff provided funds
and construction materials. Plaintiff filed a
Complaint for collection of a sum of money with
application for preliminary attachment against
Defendant and its president, Mr. X, praying that
Defendant pay its half share in the collections
received in the project as well as those yet to be
received therein.
Sec. 13, Rule 57
In support of its application for a writ of

attachment, Plaintiff alleged that Defendant was
guilty of fraud in incurring the obligation and had
fraudulently misapplied or converted the money
paid them, to which it had an equal share.
Sec. 13, Rule 57
The fraud was alleged to have been committed

upon contracting the obligation sued upon. The
application was granted but Defendant moved to
lift the writ and argued that the preliminary
attachment was irregularly issued inasmuch as
there was no evidence of fraud in incurring the
obligations sued upon. The motion was denied.
Defendant filed a petition for certiorari to assail
the issuance of the writ.
Sec. 13, Rule 57
May defendant file a motion to dissolve the attachment

on the ground that it is irregularly issued?
 No. When the preliminary attachment is issued upon a
ground which is at the same time the applicant's
cause of action, such an action against a party who
has been guilty of fraud in contracting the debt or
incurring the obligation upon which the action is
brought, the defendant is not allowed to file a motion
to dissolve the attachment by offering to show the
falsity of the factual averments.
Sec. 13, Rule 57
The reason being that the hearing on such motion

for dissolution of the writ would be tantamount to
a trial on the merits. The merits of the action
would be ventilated at a mere hearing of a
motion; instead of the regular trial. Therefore,
when the writ of attachment is of this nature, the
only way it can be dissolved is by a counterbond.
(FCY Construction Group, Inc. v. Court of
Appeals, G.R. No. 123358, February 1, 2000)
A filed an action against B an also obtained a writ of
preliminary attachment against B, who moved to
Dissolve Writ of Preliminary Attachment upon B’s filing
of a standby letter of credit. Over A’s opposition, the
RTC granted the motion and held that since a standby
letter of credit, like a counter-bond, work to secure the
payment of an obligation the counter-bond required
under Rule 57, Section 17 may be substituted by the
standby letter of credit.
The RTC also noted that the standby letter of credit
is more favorable than a surety agreement
because the beneficiary in a letter of credit can
immediately collect from the issuing bank upon
its presentment of the required documents.
Was it correct to discharge the writ of
attachment?
No. No counter-bond was filed by B. Neither did B
allege that the attachment on its property was
excessive or improperly done. Instead, B submitted a
standby letter of credit claiming it would serve the
same purpose as that of a counter-bond and should
thus be sufficient to dissolve the writ of preliminary
attachment. A standby letter of credit cannot be
considered a substitute for a counter-bond in a
preliminary attachment.(Coca-Cola Femsa Philippines, Inc. v.
Pacific Sugar Holdings Corp., G.R. No. 241333, June 27, 2022)
Does the discharge of the preliminary
attachment, whether under Section 12 or 13, result
in the discharge of the attachment bond filed by
plaintiff/applicant?
NO. That bond is executed to the adverse party,
conditioned that the applicant will pay all the
costs which may be adjudged to the adverse
party and all damages which he may sustain by
reason of the attachment, if the court shall finally
adjudge that the applicant was not entitled
thereto.
Hence, until that determination is made, as to the
applicant's entitlement to the attachment,
his bond must stand and cannot be
withdrawn. (Phil-Air Conditioning Center v. RCJ
Lines, G.R. No. 193821, November 23, 2015)
What is the effect of the dismissal of the civil case
on the writ of preliminary attachment?
 The writ of preliminary attachment must be
lifted. (Silangan Textile Manufacturing
Corporation vs. Demetria, 518 SCRA 160, G.R.
No. 166719 March 12, 2007)
SECTION 14. Proceedings where
property claimed by third person.
 Terceria, similar to Rule 39, Sec. 16 without prejudice to

separate action
 Provides for an expeditious mode of recovering
property alleged to have been wrongfully or
erroneously taken by a sheriff pursuant to a writ of
execution
 has reference to a stranger to the action, whose
property is taken by the sheriff to secure or satisfy a
judgment against a party to said action, a speedy,
simple, and expeditious method of getting it back.
SECTION 14. Proceedings where
property claimed by third person.
 If the sheriff is persuaded of the validity of the

third party's claim, then he gives back the
property and the purpose of the provision is
achieved.
 If the sheriff is not convinced and opts to retain
the property, the third party may vindicate his
claim to the property by any proper
action. (Tillson v. Court of Appeals, G.R. No. 89870, May 28, 1991)
SECTION 15. Satisfaction of judgment
out of property attached; return of officer.—
 the satisfaction of judgment out of property attached is

not mandatory - If judgment be recovered by the
attaching party and execution issue thereon, the sheriff
may cause the judgment to be satisfied out of the
property attached
 The use of the word may clearly makes the procedure
directory, in which case, the sheriff may disregard the
properties attached and proceed against other
properties of the judgment debtor, if necessary.
(Booklight, Inc. v. Tiu, G.R. No. 213650, June 17, 2019)
SECTION 16. Balance due collected upon
an execution; excess delivered to
judgment obligor.—
 A sheriff, in implementing a writ of attachment, is not
duty bound to make a valuation of the attached
properties.It is only upon the execution sale thereof
that their values are ascertained with definitiveness.
 the law does not require that the value of the
property attached be exactly the same as the
judgment debt it secures; it can be less or more than
the latter. This is the contingency addressed by the
aforequoted provision (Sarmiento v. Victoria, A.M. No. P-
00-1432, October 19, 2000)
SECTION 17. Recovery upon the
counter-bond.—
 To recover against surety’s counter-bond, there

must be
 (1) final and executory judgment;
 (2) demand made upon the surety;
 (3) notice and hearing (Albay Electric
Cooperative, Inc. v. Security Pacific
Assurance Corp., G.R. No. 174189, October 5,
2007)
Unlike Section 20, Rule 57, which requires notice
and hearing before the finality of the judgment
in an application for damages, Section 17, Rule
57 allows a party to claim damages on the
surety bond after the judgment has become
executory.
What is the reason for the difference?
Sec. 20, Rule 57
 In relation to Sec 4, the attachment bond shall answer

for all the costs which may be adjudged to the adverse
party and all damages which he may sustain by reason
of the attachment.
 the damages sought to be enforced against the
attachment bond are unliquidated
Sec. 20, Rule 57
 a notice and hearing before the finality of

judgment must be undertaken to properly
determine the amount of damages that was
suffered by the defendant due to the improper
attachment.
 These damages to be imposed against the
attaching party and his sureties are different from
the principal case, and must be included in the
judgment.
Sec. 17, Rule 57
 The cash deposit or the counter-bond shall secure the

payment of any judgment that the attaching party may
recover in the action.
 damages sought to be charged against the surety bond
are liquidated. The final judgment had already determined
the amount to be awarded to the winning litigant on the
main action.
 there is nothing left to do but to execute the judgment
against the losing party, or in case of insufficiency, against its
sureties. (Excellent Quality Apparel, Inc. v. Visayan Surety & Insurance Corp.,
G.R. No. 212025 , July 1, 2015)
SECTION 20. Claim for damages on
account of improper, irregular or excessive
attachment.—
Requisites to claim damages against the

attachment bond
1. The application for damages must be filed in
the same case where the bond was issued;
 to avoid the multiplicity of suit and forum
shopping. (Excellent Quality Apparel, Inc. v.
Visayan Surety & Insurance Corp., G.R. No.
212025 , July 1, 2015)
account of improper, irregular or
excessive attachment.—
2. Such application for damages must be filed before
the entry of judgment;
 Before trial, before appeal is perfected, or before
judgment becomes executory, to prevent the
alteration of the immutable judgment
 May be incorporated in the answer with
compulsory counterclaim (Excellent Quality
Apparel, Inc. v. Visayan Surety & Insurance Corp.,
G.R. No. 212025 , July 1, 2015)
3. After hearing with notice to the attaching party and

his surety.
 The surety should be given an opportunity to be
heard as to the reality or reasonableness of the
damages resulting from the wrongful issuance of the
writ. In the absence of due notice to the surety,
therefore, no judgment for damages may be
entered and executed against it
 Thus, if incorporated in the Answer with

counterclaim, the surety should be furnished a
copy thereof (Excellent Quality Apparel, Inc. v.
Visayan Surety & Insurance Corp., G.R. No.
212025 , July 1, 2015)
PRELIMINARY INJUNCTION
What is an injunction?
 It is as a judicial writ, process or proceeding
whereby a party is ordered to do or refrain from
doing a certain act.
 It may be filed as a main action before the trial
court or as a provisional remedy in the main
action (Evy Construction and Development Corp.
v. Valiant Roll Forming Sales Corp., G.R. No. 207938,
October 11, 2017)
 Injunction as a main action – Jurisdiction is with

the RTC – incapable of pecuniary estimation
and not falling under the jurisdiction of other
courts;
 Writ of preliminary injunction – provisional
remedy, ancillary to a main action, where it is
pending
 Scope of Enforceability (original action) when

issued by RTC - SEC. 21, BP 129 – injunction,
enforced in any part of their respective regions
 Sec. 13, BP 129 – judicial regions
Does the Court of Appeals

have jurisdiction to entertain
an original action for
injunction?
 NO. An original action for injunction is outside the

jurisdiction of the Court of Appeals.
 Under B.P. 129, the appellate court has original
jurisdiction only over actions for annulment of
judgments of the RTCs, and to issue writs
of mandamus, prohibition, certiorari, habeas
corpus and quo warranto, and auxiliary writs or
processes whether or not they are in aid of its
appellate jurisdiction. (Garcia v. Honorable Clerk of
Court, G.R. No. 248542, January 22, 2020)
X claims that the RTC issued the writ of execution

with grave abuse of discretion amounting to lack
or excess of jurisdiction. May X file an action
injunction with the Court of Appeals to restrain the
implementation of the writ of execution?
 NO. The Court of Appeals has no original jurisdiction over

actions for injunction.
 The remedy is to file a Petition for Certiorari under rule 65
with the Court of Appeals, with prayer for issuance of
TRO/Injunction.
 Sec. 7, Rule 65
 The court in which the petition is filed may
issue orders expediting the proceedings, and
it may also grant a temporary restraining
order or a writ of preliminary injunction for the
preservation of the rights of the parties
pending such proceedings.
 The petition shall not interrupt the course of the

principal case unless a temporary restraining
order or a writ of preliminary injunction has
been issued against the public respondent from
further proceeding in the case (Garcia v.
Honorable Clerk of Court, G.R. No. 248542,
January 22, 2020)
 It is a preservative remedy for the protection of

substantive rights or interests, is not a cause of action in
itself but merely a provisional remedy, an adjunct to a
main suit. It is resorted to only when there is a pressing
necessity to avoid injurious consequences that cannot
be redressed under any standard of compensation.
 The application for the writ rests upon an alleged
existence of an emergency or of a special reason for
such an order to issue before the case can be regularly
heard, and
 the essential conditions for granting such temporary

injunctive relief are that the complaint alleges facts
that appear to be sufficient to constitute a cause of
action for injunction and that on the entire showing
from both sides, it appears, in view of all the
circumstances, that the injunction is reasonably
necessary to protect the legal rights of plaintiff
pending the litigation (Land Bank of the Philippines
v. Spouses De Jesus, G.R. No. 221133, June 28, 2021,
J. Hernando)
Is it the same as a status quo order?

 No. A status quo order is “in the nature of a cease
and desist order,” (it does not direct the doing or
undoing of acts) and is “intended to maintain the
last, actual, peaceable and uncontested state of
things which preceded the controversy. (Land
Bank of the Philippines v. Spouses De Jesus, G.R.
No. 221133, June 28, 2021, J. Hernando)
 Status Quo Order - This remedy may be resorted

to when the projected proceedings in the case
made the conservation of the status quo
desirable and essential, and the allegations in the
pleading do not sufficiently make out a case for
TRO
 It may be issued motu proprio on equitable
considerations
 It does not required the posting of bond
 Preliminary injunction may either be prohibitory,

when it bars an act,
 or mandatory, when it requires the performance of
a particular act.
 It is ancillary, an incident adjunct to a main action
(Municipality of Famy, Laguna v. Municipality of
Siniloan, Laguna, G.R. No. 203806, February 10, 2020)
 As an interlocutory order, it is a provisional

remedy, temporary in nature.
 It persists until it is dissolved or until the
termination of the action without the court
issuing a final injunction. (Evy Construction and
Development Corp. v. Valiant Roll Forming Sales
Corp., G.R. No. 207938, October 11, 2017)
In a civil action, a TRO and WPI were issued. The

propriety of its issuance was assailed before the
CA. In the meantime, the main action in the RTC
continued. The RTC eventually disposed of the
case and the decision dismissing it became final
and executory. What will be the effect of this on
the pending petition for certiorari?
It shall be dismissed. TROs and WPIs are mere incidents in

and are dependent upon the result of the main action.
Ancillary writs are not causes of action in themselves; they
are mere adjuncts to the main suit with the sole object of
preserving the status quo until the merits of the case can
be heard. The existence of a main action or proceeding
is a condition sine qua non before a WPI or TRO may lie.
They cannot survive the resolution of the main case of
which it is an incident because an ancillary writ "loses its
force and effect after the decision in the main action.
When a main action is dismissed, any provisional

remedy in this case is dissolved. It then follows that
once a decision disposing of the main case
becomes final and executory, any disposition by
a court on the propriety of a TRO and WPI issued
in the case serves no practical purpose and
renders such a disposition moot and academic.
(Banco Filipino Savings and Mortgage Bank v.
Bangko Sentral ng Pilipinas, G.R. No. 200642, April
When may it be granted?

 It is an order granted at any stage of an
action or proceeding prior to the judgment or
final order (Evy Construction and
Development Corp. v. Valiant Roll Forming
Sales Corp., G.R. No. 207938, October 11,
2017)
Why is the issuance of a writ of preliminary
injunction considered an extraordinary
event?
 a "strong arm of equity or a transcendent

remedy." Thus, the power to issue the writ
"should be exercised sparingly, with utmost
care, and with great caution and
deliberation. (Evy Construction and
 An injunction is a limitation upon the freedom

of the defendant's action and should not be
granted lightly or precipitately.
 It should be granted only when the court is
fully satisfied that the law permits it and the
emergency demands it (China Banking Corp.
v. Spouses Ciriaco, G.R. No. 170038, July 11,
2012)
SECTION 3. Grounds for
issuance of preliminary injunction.
 (a) That the applicant is entitled to the relief

demanded, and the whole or part of such relief
consists in restraining the commission or
continuance of the act or acts complained of,
or in requiring performance of an act or acts,
either for a limited period or perpetually
 (b) That the commission, continuance or non-

performance of the act or acts
complained of during the litigation would
probably work injustice to the applicant
 (c) That a party, court, agency or a person is

doing, threatening, or is attempting to do, or is
procuring or suffering to be done, some act or
acts probably in violation of the rights of the
applicant respecting the subject of the action
or proceeding, and tending to render the
judgment ineffectual.
What should be proven for writ of
preliminary injunction to be issued?
Requisites:
 1. The applicant must have a clear and
unmistakable right to be protected, that is a
right in esse [clear legal right];
 2. There is a material and substantial invasion of
such right;
 3. There is an urgent need for the writ to prevent
irreparable injury to the applicant; and
What should be proven for writ of
preliminary injunction to be issued?
 4. No other ordinary, speedy, and adequate

remedy exists to prevent the infliction of
irreparable injury (Municipality of Famy, Laguna
v. Municipality of Siniloan, Laguna, G.R. No.
203806, February 10, 2020; (Bureau of Customs
v. Court of Appeals-Cagayan de Oro Station,
G.R. Nos. 192809, 193588, 193590-91 & 201650,
April 26, 2021, J. Hernando)
Clear Legal Right
 a right 'clearly founded in or granted by law.' Any hint of

doubt or dispute on the asserted legal right precludes the
grant of preliminary injunctive relief (Bicol Medical Center v.
Botor, G.R. No. 214073, October 4, 2017)
 It must be a right that is actual, clear, and existing;
not a mere contingent, abstract, or future
right. (Bureau of Customs v. Court of Appeals-
Cagayan de Oro Station, G.R. Nos. 192809, 193588,
193590-91 & 201650, April 26, 2021, J. Hernando)
Bicol Medical Center constructed a steel gate on

Road Lot No. 3, a service road that leads to the
hospital. Naga City Mayor filed a Verified Petition with
prayer for issuance of WPI against BMC because the
gate prevents the pedestrians and vehicles from
passing the road to J. Miranda Avenue. Naga City
presented a Revised Assessor's Tax Mapping Control
Roll and its Identification Map which both identified
Road Lot No. 3 as being in the name of the Province
of Camarines Sur.
Witnesses' testimonies were also presented to

corroborate Naga City's claims of the public
nature of Road Lot No. 3, that as members of the
general public, they had the right to use said
alleged public road. Naga City also relied on the
customary use of the public of said road.
BMC presented TCT No. 13693, with the

Department of Health, as the registered owner. It
is not disputed that Road Lot No. 3 is part of the
property covered by TCT No. 13693.
Should injunction issue?
 NO. There is no clear legal right absent a particular law

or statute establishing Naga City's ownership or control
over Road Lot No. 3, the DOH's title over the BMC
compound must prevail over the unsubstantiated claims
of Naga City.
 DOH’s ownership must be respected.
 customary use of Road Lot No. 3 is not 1 of the sources of
legal obligation; it does not ripen into a right (Bicol
Medical Center v. Botor, G.R. No. 214073, October 4,
2017)
X is the owner of a parcel of land. To reinforce its

ownership and prevent en try of third persons and
informal settlers, X installed security measures
such as security booms and road blockades.
After 16 years, the City of Caloocan filed a
complaint for abatement of nuisance, with prayer
for TRO and/or WPI alleging that the security
measures and road blockades were public
nuisance endangering the life, health, safety and
welfare of the residents.
It also restricted access to some of the offices of

the LGU as they could not pass through. However,
there were other routes to get to the said offices.
The City also invoked the General Welfare Clause
as basis for the WPI. The RTC granted the WPI. Was
it proper?
No. There is no clear and unmistakable right to be

protected. There are other access routes to get to the
LGU offices. There is no ordinance, regulation, or other
issuance from the City's legislative body involved, or any
exercise of legislative power by the LGU. The City cannot
claim that it has been prevented from fulfilling its duty
under the General Welfare Clause when it has not
exercised its power to enact ordinances pursuant to such
duty. The property is private property and the LGU must
first acquire the same before it can be used for public
purposes.
 The WPI did not preserve the status quo but

changed the relations between the City and X.
The act sought to be enjoined was fait
accompli since 2000. The WPI should have been
denied. An injunction should not issue to
restrain the performance of an act already
done. It exceeded the scope of a WPI. (City
Government of Caloocan v. Carmel
Development, Inc., G.R. No. 240255, January 25,
2023, J. Hernando)
A and B had entered into an equipment leasing

agreement for a period of 8 years. It was later
amended to extend the period for an additional
4 years. Since the agreement was about to
expire, A started to accept bids for a supplier of
equipment for leasing again for a period of 5
year from the expiration of agreement with B.
At that time, the term of the agreement had not

yet expired, so B sought to obtain injunction
against A from proceeding with the bidding
process, claiming that B was the exclusive
supplier for equipment leasing.
Should injunctive relief be granted in favor of B?
 NO. B’s exclusive right will end at the expiration

of the term of the extended agreement. B has
no exclusive right to being a supplier for the
next period of 5 years following the termination
of the extended agreement. There is no
showing of a right to be protected. (Philippine
Charity Sweepstakes Office v. De Leon, G.R.
Nos. 236577 & 236597, August 15, 2018)
When is injury considered irreparable to
warrant injunctive relief?
 Injury is considered irreparable if there is no

standard by which its amount can be
measured with reasonable accuracy. The injury
must be such that its pecuniary value cannot
be estimated, and thus, cannot fairly
compensate for the loss. (Evy Construction and
IRREPERABLE INJURY
Injunction will not issue if the damage petitioner

may suffer is easily subject to mathematical
computation and, if proven, is fully compensable
by damages. It should never issue when an action
for damages would adequately compensate the
injuries caused. (Bureau of Customs v. Court of
Appeals-Cagayan de Oro Station, G.R. Nos.
192809, 193588, 193590-91 & 201650, April 26, 2021,
J. Hernando)
IRREPERABLE INJURY
May loss of goodwill and business

reputation be considered irreparable
injury?
IRREPERABLE INJURY
YES. The loss of goodwill and business

reputation, being unquantifiable, would be
considered as grave and irreparable damage.
(Evy Construction and Development Corp. v.
Valiant Roll Forming Sales Corp., G.R. No.
207938, [October 11, 2017)
IRREPERABLE INJURY
A and B entered into a MOA for the latter to use

A’s premises. The MOA provided that the parties
may revoke it for cause at any time. B claimed
that A closed the premises and B could not use it,
thus B, gave notice that it was revoking the MOA
due to strained relations. A filed a complaint for
issuance of TRO/injunctive relief, to restrain B from
ceasing its operations on the premises, alleging
further A suffered Php100,000.00 lost income. Writ
of preliminary injunction was issued.
IRREPERABLE INJURY
Was the trial court correct in issuing the writ of

preliminary injunction?
 No. First, A has no clear and unmistakable right to
enforce the MOA since the parties consented to
the MOA which stipulated that any of the parties
may revoke it for cause at any time before the
end of its term. B already revoked the MOA on
the ground of strained relations before the
issuance of the writ of preliminary injunction.
IRREPERABLE INJURY
 Second, it follows that there is no substantial or

material invasion of A's right. As the right does not
exist, there can be no substantial or material
invasion thereof.
IRREPERABLE INJURY
 Third, the damage or injury allegedly sustained by A

is not irreparable. As set out, the damages or injury
suffered by the party applying for injunction must
be unquantifiable. The Petition correctly pointed
out that A was able to state in his Complaint an
amount (i.e., P100,000.00) pertaining to the loss of
earnings he suffered. (Bureau of Customs v. Court
of Appeals-Cagayan de Oro Station, G.R. Nos.
192809, 193588, 193590-91 & 201650, April 26, 2021,
J. Hernando)
IRREPERABLE INJURY
A publicly listed corporation, after complying with the

requirements under the law, sought to decrease its
capital stock, with the approval of SEC through
amending the corporation’s AOI. This was also disclosed
to the PSE. An action was filed to seeking to restrain SEC
from approving such decrease and for issuance of TRO.
It is argued that unless restrained, the reduction will
operate as a fraud on investors and will also likely
cause grave or irreparable injury or prejudice to the
investing public. Should the TRO prosper?
IRREPERABLE INJURY
No. After a corporation faithfully complies with the

requirements under law for the decrease of capital stock SEC
has nothing more to do other than approve the same. The
alleged fraud as well as the grave or irreparable injury or
prejudice to the investing public are not present in the case
as it was not shown how the investing public would be
prejudiced by the decrease and delisting in view of its
disclosure to the PSE. There was nothing in the corporation's
act that resulted in grave or irreparable injury or prejudice to
the investing public. (Metroplex Berhad v. Sinophil Corp.,
G.R. No. 208281, June 28, 2021, J. Hernando)
A filed an action for declaration of the nullity of

the promissory notes, real estate and chattel
mortgages and continuing surety agreement he
executed in favor of B, for a temporary
restraining order or writ of preliminary injunction
to prevent B from foreclosing on the mortgages
against their properties.
It was alleged that if B foreclosed the same, it

would render ineffectual the judgment of the trial
court, they would lose possession of the
property, and A would face prosecution for BP
22 for the dishonored checks.
Should injunctive relief be granted?
 NO. By constituting the mortgage, A was aware

of the consequences thereof if the loan was
unpaid. Foreclosure of mortgage is a remedy
under law. The fear of loss of property does not
constitute irreparable injury. A would not be
deprived outrightly of the property, since there
is a right of redemption.
 Also, as a rule the courts will not issue writs of

prohibition or injunction — whether preliminary
or final — in order to enjoin or restrain any
criminal prosecution, and it does not fall under
the exceptions to the rule. (Bank of the
Philippine Islands v. Hontanosas, Jr., G.R. No.
157163, June 25, 2014)
What is the quantum of proof required to
establish the right to injunctive relief?
 mere prima facie evidence is needed to establish

the applicant's rights or interests in the subject
matter of the main action.
 complete and conclusive proof is not
needed. (Bureau of Customs v. Court of Appeals-
Cagayan de Oro Station, G.R. Nos. 192809,
193588, 193590-91 & 201650, April 26, 2021, J.
Hernando)
What is the quantum of proof required to
establish the right to injunctive relief?
 applicant is required only to show that he has an

ostensible right to the final relief prayed for in his
complaint.
 The evidence need not be complete and
conclusive proof (Municipality of Famy, Laguna v.
Municipality of Siniloan, Laguna, G.R. No. 203806,
February 10, 2020 )
Prima Facie Evidence
 evidence that is "good and sufficient on its face.

 Such evidence as, in the judgment of the law, is
sufficient to establish a given fact, or the group or
chain of facts constituting the party's claim or defense
and which if not rebutted or contradicted, will remain
sufficient.
 a sampling is required "to give the court an idea of the
justification for the preliminary injunction pending the
decision of the case on the merits (Bicol Medical
Center v. Botor, G.R. No. 214073, October 4, 2017 )
May the trial court’s grant or denial of
injunction be interfered with?
 As a rule, no. It is subject to the discretion of the

court.
 Exception: there is a showing that the grant or
denial was tainted with grave abuse of
discretion (Evy Construction and Development
Corp. v. Valiant Roll Forming Sales Corp., G.R.
No. 207938, [October 11, 2017)
What are the exceptions to the rule that
injunction will not issue to enjoin or restrain
any criminal prosecution?
 There are extreme cases in which exceptions

to the general rule have been recognized,
including:
 (1) when the injunction is necessary to afford
adequate protection to the constitutional
rights of the accused;
 (2) when it is necessary for the orderly
administration of justice or to avoid oppression
or multiplicity of actions;
 (3) when there is a prejudicial question that

is sub judice;
 (4) when the acts of the officer are without or
in excess of authority;
 (5) when the prosecution is under an invalid
law, ordinance or regulation;
 (6) when double jeopardy is clearly apparent;
 (7) when the court has no jurisdiction over the offense;

 (8) when it is a case of persecution rather than
prosecution;
 (9) when the charges are manifestly false and
motivated by the lust for vengeance; and
 (10) when there is clearly no prima facie case against
the accused and a motion to quash (Bank of the
Philippine Islands v. Hontanosas, Jr., G.R. No. 157163,
June 25, 2014
WPI cannot be used to oust a party
from his possession of property
 a writ of preliminary mandatory injunction

cannot be used to oust a party from his
possession of a property and to put in his place
another party whose right has not been clearly
established. (Heirs of Yu v. Court of Appeals,
G.R. No. 182371, September 4, 2013)
WPI cannot be used to oust a party
from his possession of property
Exception: Article 539 of the Civil Code

 The injunction contemplated in Article 539 - a
possessor deprived of his possession through
forcible entry may, within 10 days from the filing of
the complaint, present a motion to secure from the
competent court in the action for forcible entry a
writ of preliminary mandatory injunction to restore
him in his possession (Mara, Inc. v. Estrella, G.R. No.
L-40511, 25 July 1975 )
SECTION 4. Verified application and bond
for preliminary injunction or temporary
restraining order.
 Verified application – showing entitlement to

relief demanded
 bond executed to the party or person enjoined,
in amount fixed by court, that the applicant all
damages which he may sustain by reason of
the injunction or TRO if the court should finally
decide that the applicant was not entitled
thereto.
 EXCEPTION: when exempted by the court
SECTION 4. Verified application and bond
for preliminary injunction or temporary
restraining order.
 Upon approval of the requisite bond, a writ of

preliminary injunction shall be issued (Bogabong v.
Balindong, A.M. No. RTJ-18-2537, August 14, 2019)
 serves as a fund to ensure compensation to a wrongfully
enjoined defendant and to facilitate the collection of
the damages awarded.
 Bond sets an upper limit as to the plaintiff's liability, it
provides the plaintiff with information regarding the
scope of his potential liability for wrongfully issued
preliminary injunctions.(Spouses Beltran v. Spouses Caluag, G.R. No. 259010, September 12, 2022)
Exemption from payment of Bond is
an exception
 the reason for such exemption must be stated in the

order.
 Judge has the discretion to require a bond but this
cannot be exercised arbitrarily to favor one party
and prejudice the other.
 Unless it is shown that the enjoined party will not
suffer any damage, the presiding judge must require
the applicant to post a bond (Bogabong v.
Balindong, A.M. No. RTJ-18-2537, August 14, 2019)
May a TRO be issued ex parte?
 YES. A temporary restraining order may be

issued ex parte to preserve the status quo until the
hearing of the application for preliminary
injunction, which cannot be issued ex parte.
 A trial court may issue a temporary restraining
order even without a prior hearing for a limited
period of 72 hours if the matter is of extreme
urgency and the applicant will suffer grave
injustice and irreparable injury.
May a TRO be issued ex parte?
 In this instance, a summary hearing, separate from

the application of the preliminary injunction, is
required only to determine if a 72-hour temporary
restraining order should be extended. (Evy
Construction and Development Corp. v. Valiant Roll
Forming Sales Corp., G.R. No. 207938, October 11,
2017)
 In no case shall the total period of effectivity of the
temporary restraining order exceed 20 days,
including the original 72 hours provided
May a trial court issue ex parte a TRO for 20
days?
 YES. A trial court may also issue ex parte a

temporary restraining order for 20 days if it shall
appear from facts shown by affidavits or by the
verified application that great or irreparable
injury would result to the applicant before the
matter can be heard on notice.
May a trial court issue ex parte a TRO for 20
days?
 If no action is taken on the application for

preliminary injunction during this period, the
temporary restraining order is deemed to have
expired. (Evy Construction and Development
Corp. v. Valiant Roll Forming Sales Corp., G.R.
No. 207938, October 11, 2017 )
TRO
 CA – 60 days from service

 SC – effective until further orders (Rule 58, Sec.
5)
TRO
A 72-hour TRO was issued ex parte. The judge set

the required summary hearing for the
determination of the necessity of extending the
72-hour TRO to 20 days, 1 week after the issuance
of the TRO. Thereafter, after the lapse of more
than 72 hours, the judge issued an order
extending the TRO for 20 days, claiming the 72
hour TRO is just part of the 20 day TRO. Is this
valid?
TRO
No. The TRO issued was valid for only 72 hours.

Beyond such time, the TRO automatically expires,
unless, before the expiration of the said period, he,
conducted the required summary hearing in order
to extend the TRO's lifetime.
TRO
A 72-hour TRO, issued by an executive judge, is a

separate and distinct TRO which can stand on its
own, regardless of whether it is eventually extended
or not. It is not, as respondent judge attempts to
impress, a mere part of the 20-day TRO issued by a
judge to whom the case is raffled. (Spouses Lago v.
Abul, Jr., A.M. No. RTJ-10-2255, January 17, 2011)
20-day TRO
 Court orders the party to show cause why

injunction should not be granted
 Court shall determine whether the preliminary
injunction shall be granted (Spouses Lago v.
Abul, Jr., A.M. No. RTJ-10-2255, January 17, 2011)
 If TRO lapses, it is automatically vacated, but
the hearing on WPI may continue
WPI without hearing, not valid
 Rule 58 mandates a full and comprehensive hearing

for the determination of the propriety of the
issuance of a writ of preliminary injunction, separate
from the summary hearing for the extension of the
72-hour TRO. (Spouses Lago v. Abul, Jr., A.M. No.
RTJ-10-2255, January 17, 2011)
May an application for preliminary injunction be

denied even without the conduct of a hearing
separate from that of the summary hearing of an
application for TRO?
 YES. Rule 58, Section 5 requires a hearing only if an

application for preliminary injunction is granted.
 It may be denied even without the conduct of a
hearing separate from that of the summary
hearing of an application for the issuance of a
temporary restraining order.(Evy Construction and
Plaintiff filed a Complaint for Annulment of Real

Estate Mortgage, Promissory Note and Foreclosure
Sale and Damages with an Urgent Application for
the Issuance of a Temporary Restraining Order
and/or Writ of Preliminary Injunction before the
RTC, to restrain Defendant’s consolidation of
ownership over the subject property. Plaintiff
withdrew the application for TRO. The court set the
application for writ of preliminary injunction for
hearing.
The RTC ordered plaintiff to present evidence in

support of the application for preliminary
injunction. Instead of doing so, plaintiff moved to
set the main case for pre-trial. The case was set
for pre-trial. Plaintiff moved for issuance of status
quo order, which was denied.
The denial was brought to the CA by certiorari.

Before that, the Defendant consolidated
ownership over the property. CA reversed the RTC
and remanded the case for hearing on the
issuance of the writ of preliminary injunction. CA
found plaintiff’s right to due process was violated
when there was no hearing on the writ of
preliminary injunction.
Was the trial correct wrong for not conducting any

hearing on the writ of preliminary in injunction?
 No. By moving for the pre-trial of the main case,
instead of proceeding with the hearing on preliminary
injunction as originally scheduled, plaintiff revealed
the lack of urgency in obtaining injunctive relief.
 The trial court was not duty-bound to conduct a
hearing since it construed the spouses' motion to set
the main case for pre-trial as an abandonment of their
application for preliminary injunction.
 In any event, a hearing is not even required

should the trial court deny an application for
preliminary injunction. Rule 58, Section 5 requires
a hearing only if an application for preliminary
injunction is granted. (Land Bank of the
Philippines v. Spouses De Jesus, G.R. No. 221133,
June 28, 2021, J. Hernando)
Was the CA correct to remand the case for hearing

on the writ of preliminary injunction?
 No. It has become moot and academic since the
act sought to be restrained, the consolidation of
ownership was already made before the petition
for certiorari was even filed with the CA. The act
sought to be enjoined had long become fait
accompli. (Land Bank of the Philippines v. Spouses
De Jesus, G.R. No. 221133, June 28, 2021, J.
Hernando)
SEC. 6 – GROUNDS FOR OBJECTION
TO/MOTION FOR DISSOLUTION OF
TRO/WPI
 upon a showing of its insufficiency.
 fait accompli – only the provisional remedy should
be denied, but court should proceed with
determination of principal action (Caneland Sugar
Corp. v. Alon, G.R. No. 142896, September 12, 2007)
 If defendant allowed to file counter-bond it
appearing he would sustain great damage while
plaintiff may be compensated
Hearing indispensable - irreparable damage to the party or
person enjoined while the applicant can be fully compensated
for such damages as he may suffer, and the former files a
bond
 A hearing is indispensable before an injunction or

restraining order may be dissolved on basis of
defendant suffering irreparable damage to party
enjoined
 It is during the hearing that a determination may
be made whether or not the continuance of an
injunction would cause irreparable damage to
the party or person enjoined(Philippine Ports
Authority v. Nasipit Integrated Arrastre and
Stevedoring Services, Inc., G.R. No. 174136,
December 23, 2008)
Irreparable damage to the party or person enjoined while the
applicant can be fully compensated for such damages as he
may suffer, and the former files a bond
 Two conditions must concur:

 (1) the court in the exercise of its discretion,
finds that the continuance of the injunction
would cause great damage to the defendant,
while the plaintiff can be fully compensated for
such damages as he may suffer;
 (2) the defendant files a counter-bond (Spouses
Yap v. International Exchange Bank, G.R. No.
175145, March 28, 2008)
No counter-bond, no dissolution
 Failure to post the required counter-bond will

necessarily lead to the non-dissolution of the
preliminary injunction.
 The Order of Dissolution cannot be
implemented until and unless the required
counter-bond has been posted. (Spouses Yap
v. International Exchange Bank, G.R. No.
175145, [March 28, 2008)
SECTION 7. Service of copies of bonds;
effect of disapproval of the same.
 Dissolved - If the applicant's bond is found to be

insufficient in amount, or if the surety or sureties
thereon fail to justify, and a bond sufficient in amount
with sufficient sureties approved after justification is
not filed forthwith, the injunction shall be dissolved.
effect of disapproval of the same.
 Restored - If the bond of the adverse party is found to
be insufficient in amount, or the surety or sureties
thereon fail to justify a bond sufficient in amount with
sufficient sureties approved after justification is not
filed forthwith, the injunction shall be granted or
restored, as the case may be. (Heirs of Yu v. Court of
Appeals, G.R. No. 182371, September 4, 2013)
 MODIFICATION: If it appears that the extent of the
preliminary injunction or restraining order granted is
too great, it may be modified. (Sec. 6, Rule 58)
Injunction lifted by writ of certiorari
 No need for counter-bond

 The injunction is lifted and cancelled via a
petition for certiorari under Rule 65 not based
on a motion for dissolution of the injunction.
(Philippine Associated Smelting and Refining
Corp. v. Lim, G.R. No. 172948, October 5, 2016)
 The remedy to assail the denial of an application
for the issuance of an injunctive relief is also to file
a petition for certiorari ascribing grave abuse of
discretion.
effect of disapproval of the same
 an Order granting a preliminary injunction,

whether mandatory or prohibitory, does not
automatically entitle the applicant-movant to
an immediate enforcement.
 Posting of a bond is a condition sine qua
non for the issuance of a corresponding writ.
effect of disapproval of the same
 the party filing a bond is mandated to serve a

copy thereof to the other party, who may
oppose the sufficiency of the bond or the
qualifications of its surety or sureties. (Heirs of Yu
v. Court of Appeals, G.R. No. 182371,
September 4, 2013)
PROCEDURE FOR CLAIMING
DAMAGES ON BOND
 Same as that in preliminary attachment under

Sec. 20, Rule 57 (Sec. 8, Rule 58)
 there is hearing
 It is claimed before finality
SECTION 9. When final injunction
granted.
Distinguish permanent injunction from writ of preliminary

injunction.
 A writ of preliminary injunction is generally based solely on
initial and incomplete evidence.
 The evidence submitted during the hearing on an
application for a writ of preliminary injunction is not
conclusive or complete for only a sampling is needed to
give the trial court an idea of the justification for the
preliminary injunction pending the decision of the case on
the merits.
WPI
 the findings of fact and opinion of a court when

issuing the writ of preliminary injunction
are interlocutory in nature and made even
before the trial on the merits is commenced or
terminated.
 WPI cannot survive the main case of which it is
an incident (Zuneca Pharmaceutical v.
Natrapharm, Inc., G.R. No. 197802, November
11, 2015)
Permanent Injunction
 A permanent injunction, based on Section 9,

Rule 58 forms part of the judgment on the merits
and it can only be properly ordered only on
final judgment.
 may be granted after a full blown trial on the
merits (Zuneca Pharmaceutical v. Natrapharm,
Inc., G.R. No. 197802 [November 11, 2015)
What is the remedy against a permanent
injunction?
 The remedy is an appeal, from the decision in

the main case. (Zuneca Pharmaceutical v.
Natrapharm, Inc., G.R. No. 197802, [November
11, 2015)
Disobedience of Injunctive writ
 Indirect Contempt
 Section 3(b), Rule 71
RECEIVERSHIP
 Appointment of Receiver of property subject

of action
 verified application
 appointed by the court where the action is
pending, or by the Court of Appeals or by the
Supreme Court, or a member thereof
RECEIVERSHIP
 During the pendency of an appeal

 the appellate court may allow an
application for the appointment of a
receiver
 filedin and decided by the court of origin
and the receiver appointed to be subject to
the control of said court
May a party be appointed as a
receiver?
 Neither party to a litigation should be

appointed as receiver without the consent of
the other because a receiver should be a
person indifferent to the parties and should be
impartial and disinterested.
May a party be appointed as a
receiver?
The receiver is not the representative of any of

the parties but of all of them to the end that
their interests may be equally protected with the
least possible inconvenience and expense
(Spouses Limso v. Philippine National Bank, G.R.
Nos. 158622, 169441, 172958, 173194, 196958,
197120 & 205463, January 27, 2016)
Consider before appointment of
receiver
 (1) whether or not the injury resulting from such

appointment would probably be greater than
the injury ensuing if the status quo is left
undisturbed; and
 (2) whether or not the appointment will imperil
the interest of others whose rights deserve as
much a consideration from the court as those
of the person requesting for receivership.
Consider before appointment of
receiver
 where the effect of the appointment of a

receiver is to take real estate out of the
possession of the defendant before the final
adjudication of the rights of the parties, the
appointment should be made only in
extreme cases. (Tantano v. Espina-
Caboverde, G.R. No. 203585, July 29, 2013)
RECEIVERSHIP
 When it appears from the verified application,

and such other proof as the court may require
 party applying for the appointment of a
receiver has an interest in the property or fund
which is the subject of the action or
proceeding,
 property or fund is in danger of being lost,
removed, or materially injured unless a receiver
be appointed to administer and preserve it
RECEIVERSHIP
 show how the building as well as the income

thereof would disappear or be wasted if not
entrusted to a receiver
 prove that the property has been materially
injured, necessitating its protection and
preservation. (Making Enterprises, Inc. v.
Marfori, G.R. No. 152239, August 17, 2011)
it appears that the appointment of a receiver
is the most convenient and feasible means of
preserving, administering, or disposing of the
property in litigation
 receivership may be granted only when the

circumstances so demand:
 either because the property sought to be placed
in the hands of a receiver is in danger of being lost,
or
 because they run the risk of being impaired
it appears that the appointment of a receiver
is the most convenient and feasible means of
preserving, administering, or disposing of the
property in litigation
 being a drastic and harsh remedy, receivership must

be granted only when there is a clear showing of
necessity for it in order to save the plaintiff from
grave and immediate loss or damage. (Tantano v.
Espina-Caboverde, G.R. No. 203585, [July 29, 2013)
Sec. 2 - Bond on
appointment of receiver.
 Court to require applicant to file a bond before

issuing the order appointing a receiver
 bond is executed to the party against whom the
application is presented,
 Amount - fixed by the court
Sec. 2 - Bond on
appointment of receiver.
 applicant will pay such party all damages he

may sustain by reason of the
appointment of such receiver in case the
applicant shall have procured such
appointment without sufficient cause;
 the court may, in its discretion, at any time after
the appointment, require an additional bond as
further security for such damages.
Is it correct to say that the bond is only
required when the appointment of
receiver is without sufficient cause?
If appointment of receiver is with
sufficient cause or with consent of
parties, bond is not required?
Filing of an applicant's bond is
required at all times
NO. Sec. 2 of Rule 59 is very clear in that before

issuing the order appointing a receiver the
court shall require the applicant to file a bond
executed to the party against whom the
application is presented.
 The use of the word "shall" denotes its
mandatory nature; thus, the consent of the
other party, or as in this case, the consent of
petitioners, is of no moment.
Filing of an applicant's bond is
required at all times
the requirement of a receiver's bond rests upon

the discretion of the court. Sec. 2 of Rule 59
clearly states that the court may, in its discretion,
at any time after the appointment, require an
additional bond as further security for such
damages (Tantano v. Espina-Caboverde, G.R.
No. 203585, July 29, 2013)
SECTION 3. Denial of application or
discharge of receiver.—
 The application may be denied or the receiver

discharged,
 when adverse party files a bond executed to the
applicant
 Amount: fixed by the court,
 such party will pay the applicant all damages he
may suffer by reason of the acts, omissions, or
other matters specified in the application as
ground for such appointment.
discharge of receiver.
 The receiver may also be discharged if it is

shown that his appointment was obtained
without sufficient cause.
discharge of receiver.
 Damages for the procurement of the

appointment of a receiver without sufficient
cause, are to be ascertained and decreed in
the action wherein the receiver is appointed,
and final judgment having been rendered in
that action, the question of damages on this
ground is res adjudicata.(Yap Unki v. Chua
Jamco, G.R. No. 5202, December 16, 1909)
SECTION 4. Oath and
bond of receiver.
 Before entering upon his duties:

 the receiver shall be sworn to perform them
faithfully,
 shall file a bond, executed to such person and
in such sum as the court may direct, to the
effect that he will faithfully discharge his duties
in the action or proceeding and obey the
orders of the court.
effect of disapproval of same.
 The person filing a bond shall serve a copy thereof on

each interested party, who may except to its sufficiency
or of the surety or sureties thereon.
 If either the applicant's or the receiver's bond is found to
be insufficient in amount, or if the surety or sureties thereon
fail to justify, and a bond sufficient in amount with
sufficient sureties approved after justification is not filed
forthwith,
 the application shall be denied or the receiver
discharged, as the case may be.
effect of disapproval of same.
 If the bond of the adverse party is found to be

insufficient in amount or the surety or sureties thereon
fail to justify, and a bond sufficient in amount with
sufficient sureties approved after justification is not
filed forthwith, the receiver shall be appointed or re-
appointed, as the case may be.
SECTION 6. General
powers of receiver.
 Powers of custody and management

 to take custody of the assets, properties and
funds claimed by the parties in this case, as well
as the management of the businesses involved
herein (Mallari v. Court of Appeals, G.R. No. L-
26467, July 15, 1981)
 to bring and defend, in such capacity, actions
in his own name;
SECTION 6. General
powers of receiver.
 to take and keep possession of the property in

controversy;
 to receive rents; to collect debts due to himself
as receiver or to the fund, property, estate,
person, or corporation of which he is the
receiver;
 to compound for and compromise the same;
SECTION 6. General
powers of receiver.
 to make transfers;
 to pay outstanding debts;
 to divide the money and other property that
shall remain among the persons legally entitled
to receive the same;
SECTION 6. General
powers of receiver.
 and generally to do such acts respecting the

property as the court may authorize.
 funds in the hands of a receiver may be
invested only by order of the court upon the
written consent of all the parties to the action.
SECTION 7. Liability for refusal or
neglect to deliver property to
receiver.
 A person who refuses or neglects, upon

reasonable demand, to deliver to the receiver
all the property, money, books, deeds, notes,
bills, documents and papers within his power or
control, subject of or involved in the action or
proceeding, or in case of disagreement, as
determined and ordered by the court - be
punished for contempt
SECTION 7. Liability for refusal or
neglect to deliver property to
receiver.
 shall be liable to the receiver for the money or

the value of the property and other things so
refused or neglected to be surrendered,
together with all damages that may have been
sustained by the party or parties entitled thereto
as a consequence of such refusal or neglect
Sec. 8 - Termination of receivership;
compensation of receiver.
 Motu proprio or upon motion of a party

 necessity for a receiver no longer exists,
 after due notice to all interested parties and
hearing,
Sec. 8 - Termination of receivership;
compensation of receiver.
 Court shall:
 settle the accounts of the receiver,
 direct the delivery of the funds and other
property in his possession to the person
adjudged to be entitled to receive them,
and
 order the discharge of the receiver from
further duty as such.
Compensation
 The court shall allow the receiver such

reasonable compensation as the
circumstances of the case warrant, to be
taxed as costs against the defeated party,
or apportioned, as justice requires
SECTION 9. Judgment to include
recovery against sureties.
 The amount, if any, to be awarded to any party

upon any bond filed in accordance with the
provisions of this Rule, shall be claimed,
ascertained, and granted under the same
procedure as prescribed in Section 20 of Rule 57
REPLEVIN
It is an action for the recovery of personal

property. It is both a principal remedy and a
provisional relief.
 When utilized as a principal remedy, the
objective is to recover possession of personal
property that may have been wrongfully
detained by another.
REPLEVIN
 When sought as a provisional relief it allows a

plaintiff to retain the contested property during
the pendency of the action. (Jorgenetics
Swine Improvement Corp. v. Thick & Thin Agri-
Products, Inc., G.R. Nos. 201044 & 222691, May
REPLEVIN
 parties may validly stipulate that a real

property be considered as personal. After
agreeing to such stipulation, they are
consequently estopped from claiming
otherwise. Under the principle of estoppel, a
party to a contract is ordinarily precluded from
denying the truth of any material fact found
therein (Serg's Products, Inc. v. PCI Leasing
and Finance, Inc., G.R. No. 137705, August 22,
2000)
REPLEVIN
 replevin is a possessory action the gist of which

focuses on the right of possession that, in turn, is
dependent on a legal basis that, not
infrequently, looks to the ownership of the
object sought to be replevied.
REPLEVIN
 Wrongful detention by the defendant of the

properties sought in an action for replevin must
be satisfactorily established.
 If only a mechanistic averment thereof is
offered, the writ should not be issued. (Twin
Ace Holdings Corp. v. Rufina & Co., G.R. No.
160191, June 8, 2006)
SECTION 1. Application.
 WHO: A party praying for the

recovery of possession of personal property
 WHEN: at the commencement of the action or
at any time before answer,
 WHAT: apply for an order for the
delivery of such property to him, in the manner
hereinafter provided.
SEC. 2 - Affidavit and bond.
 (a) That the applicant is the owner of the

property claimed, particularly describing it, or is
entitled to the possession thereof;
 (b) That the property is wrongfully detained by
the adverse party, alleging the
cause of detention thereof according to the
best of his knowledge, information, and belief;
 (c) That the property has not been distrained or

taken for a tax assessment or a fine pursuant to
law, or seized under a writ of execution or
preliminary attachment, or otherwise placed
under custodia legis,or if so seized, that it is
exempt from such seizure or custody; and
 (d) The actual market value of the property.
 The applicant must also give a bond, executed

to the adverse party in double the value of the
property as stated in the affidavit
aforementioned, for the return of the property
to the adverse party if such return be adjudged,
and for the payment to the adverse
party of such sum as he may recover from the
applicant in the action.
Is prior demand on the possessor of the
property required before he can file an
action for a writ of replevin?
NO. Rule 60 does not require the applicant to

make a prior demand on the possessor of the
property before he can file an action for a writ
of replevin. Thus, prior demand is not a condition
precedent to an action for a writ of replevin.
(Navarro v. Escobido, G.R. No. 153788,
November 27, 2009)
SECTION 3. Order.
 Upon the filing of such affidavit and

approval of the bond, the court shall issue an
order and the corresponding writ of replevin
describing the personal property alleged to
be wrongfully detained and requiring the
sheriff forthwith to take such property into his
custody
SECTION 4. Duty of the sheriff .—
 Upon receiving such order, the sheriff must

serve a copy thereof on the adverse party,
together with a copy of the application,
affidavit and bond,
 must take the property, if it be in the
possession of the adverse party, or his agent,
and retain it in his custody.
 If the property or any part thereof be

concealed in a building or enclosure, the sheriff
must demand its delivery,
 if it be not delivered, he must cause the building
or enclosure to be broken open and take the
property into his possession.
 After the sheriff has taken possession of the

property as herein provided, he must keep it in
a secure place
 Sheriff shall be responsible for its delivery to the
party entitled thereto upon receiving his fees
and necessary expenses for taking and keeping
the same.
Process for execution of writ of
replevin
 The process regarding the execution of the writ

of replevin in Section 4 of Rule 60 is
unambiguous: the sheriff, upon receipt of the
writ of replevin and prior to the taking of the
property, must serve a copy thereof to the
adverse party together with the application,
the affidavit of merit, and the replevin bond.
replevin
 Reason: to provide proper notice to the

adverse party that his property is being seized in
accordance with the court's order upon
application by the other party, and ultimately
to allow the adverse party to take the proper
remedy consequent thereto. (Rivera v. Vargas,
G.R. No. 165895, June 5, 2009)
replevin
 Service of the writ upon the adverse party is

mandatory in line with the constitutional
guaranty on procedural due process and as
safeguard against unreasonable searches and
seizures.
replevin
 If the writ was not served upon the adverse

party but was instead merely handed to a
person who is neither an agent of the adverse
party nor a person authorized to receive court
processes on his behalf, the service thereof is
erroneous and is, therefore, invalid, running
afoul of the statutory and constitutional
requirements.
replevin
 The service is likewise invalid if the writ

of replevin was served without the required
documents. Under these circumstances, no
right to seize and to detain the property shall
pass, the act of the sheriff being both unlawful
and unconstitutional (Rivera v. Vargas, G.R. No.
165895, June 5, 2009)
What is the effect of a writ of replevin that
has been improperly served?
 a person seeking a remedy in an action

for replevin must follow the course laid down in
the statute, since the remedy is penal in nature.
 When no attempt is made to comply with the
provisions of the law relating to seizure in this
kind of action, the writ or order allowing the
seizure is erroneous and may be set aside on
motion by the adverse party.
What is the effect of a writ of replevin that
has been improperly served?
 a motion to quash the writ of replevin goes to

the technical regularity of procedure, and not
to the merits of the case in the principal
action (Rivera v. Vargas, G.R. No. 165895, June
5, 2009)
What is the remedy against a writ
of replevin that has been improperly
served?
 motion to quash the writ of replevin or a motion

to vacate the order of seizure
 court to restore the parties to their former
positions by returning the seized property to
petitioner and by discharging the replevin bond
filed by respondent.
Remedies
 The trial, with respect to the main action, shall

continue. Respondent may, however, file a new
application for replevin should he choose to do
so (Rivera v. Vargas, G.R. No. 165895, June 5,
2009)
Rule 60, Section 5 – Return of Property
(Counter-Bond/Redelivery Bond)
 If the adverse party objects to the sufficiency of the

applicant's bond, or of the surety or sureties thereon, he
cannot immediately require the return of the property, but
if he does not so object, he may, at any time before the
delivery of the property to the applicant, require the return
thereof, by filing with the court where the action is
pending a bond executed to the applicant, in double the
value of the property as stated in the applicant's affidavit
and by serving a copy bond on the applicant. (Serg's
Products, Inc. v. PCI Leasing and Finance, Inc., G.R. No.
137705, August 22, 2000)
Section 6, Rule 60
 5-day period from taking of the property

 purpose of the five-day period in Section 6 is
to give defendants in a replevin case a
chance to require
the return of the property by filing a counter-
bond.
Section 6, Rule 60
 theproperty seized under a writ of replevin is not to be

delivered immediately to the plaintiff. The sheriff must
retain it in his custody for five days and he shall return it to
the defendant, if the latter, requires its return and files a
counter-bond (Spouses Bautista v. Sula, A.M. No. P-04-
1920, August 17, 2007)
 If defendant does not object to the sufficiency

of bond or the counter-bond is found to be
insufficient, property shall be delivered to
applicant
 If for any reason the property is not delivered to
the applicant, sheriff must return the property to
the adverse party
 If case dismissed without prejudice, the writ of

replevin being merely ancillary in nature,
becomes functus officio and should be lifted
(Enriquez v. The Mercantile Insurance Co., Inc.,
G.R. No. 210950, August 15, 2018)
Restitution
 When the restitution of what has been taken by

way of replevin has been ordered, the goods in
question shall be returned in substantially the
same condition as when taken (54 C. J., 599-
600, 640-641).
Sec. 7 – Proceedings where property
claimed by third person
 Affidavit of title or right of possession with

grounds, serving on sheriff and applicant
(Similar to Terceria under Rule 39)
 Applicant to file a bond to indemnify third
party, double value of the property (Sec. 2)
 Court determines value in case of
disagreement
 No bond if writ issued in favor of the Republic of
the Philippines
Judgment
 After trial, court determines who has right of

possession to and the value of the property
 Judgment – delivery to party entitled to
property, or its value in case delivery cannot be
made, and damages, either party may prove
 Judgment awarded upon a bond shall be
claimed, ascertained and granted under same
procedure under Section 20, Rule 57
SPECIAL CIVIL ACTIONS
 instituted by the filing of a complaint or a petition,

together with the payment of docket or filing and
other legal fees
 generally governed by ordinary rules
 unless the specific rule otherwise provides
 Prior resort to barangay conciliation proceedings,
e.g., Unlawful Detainer and Forcible Entry
 Requirements on initiatory pleadings
 Prohibited motions
Initiatory pleading
 claiming party’s causes of action, with the
exception of actions for interpleader and
declaratory relief
 the names and residences of the parties
 a plain, concise and direct statement of the
ultimate facts in a methodical and logical form
 the evidentiary facts or the evidence in which
the party pleading relies for his claim
 names of witnesses who will be presented to prove the

party’s claim
 summary of the witnesses’ intended testimonies and
attaching to the initiatory pleading said witnesses’
respective judicial affidavits
 documentary and object evidence in support of the
allegations contained in the pleading.
 accompanied by a certification against forum
shopping, with attached proof of authorization of the
affiant (SPA/Secretary’s Certificate)
 Jurisdiction depends on the subject matter and

nature of action as conferred by law and as
determined by the allegations in the complaint
 Venue – Rule 4, unless the specific rule otherwise
provides
 actions affecting title to or possession of real

property, or interest therein, shall be
commenced and tried in the
proper court which has jurisdiction over the
area wherein the real property involved, or a
portion thereof, is situated
 All other actions may be commenced and

tried where the plaintiff or any of the principal
plaintiffs resides, or where the defendant or
any of the principal defendants resides, or in
the case of a non-resident defendant where
he may be found, at the election of the
plaintiff
 The foregoing shall not apply: (1) in cases

where a specific rule or law provides otherwise;
or (2) when the parties have validly agreed in
writing before the filing of the action on an
exclusive venue
 petition for quo warranto can only be brought in

the Supreme Court, Court of Appeals or in the
Regional Trial Court exercising jurisdiction over
the territorial area where the respondent or any of
the respondents resides, unless the Solicitor
General commences the action, in which case it
may be brought in a Regional Trial Court in the
City of Manila, in the Court of Appeals, or in the
Supreme Court (Rule 66, Sec. 7)
INTERPLEADER
 The Regional Trial Court, Municipal Trial Courts,

Metropolitan Trial Courts, Municipal Trial Courts in
Cities, and Municipal Circuit Trial Courts have
original jurisdiction over actions for interpleader,
depending on the nature and the value of the
subject or property in dispute
INTERPLEADER
 While in interpleader, the conflicting claimants

will be ordered to interplead, the nature of the
action or the subject matter in interpleader is not
automatically incapable of pecuniary estimation
INTERPLEADER
 if the subject involves an interest over real

property, then it is a real action: assessed value
not exceeding Php400,000.00 is with inferior
courts, and when exceeding Php400,000.00,
jurisdiction is with RTC (RA 11576)
INTERPLEADER
 for all other actions that are capable of

pecuniary estimation, where the claim does not
exceed Php2Million, jurisdiction is with inferior
courts and exceeding Php2Million, jurisdiction is
with the RTC (RA 11576)
 If incapable of pecuniary estimation, jurisdiction
is with the RTC
INTERPLEADER
 afforded to protect a person against double

vexation in respect of one liability and not
against double liability
 that there is only one subject matter and
liability, but there are 2 or more persons
claiming the right to the same against one
person, who may be exposed to several cases
filed by the said conflicting claimants
INTERPLEADER
 A stakeholder - person entrusted with the custody of

property or money that is the subject of litigation or
of contention between rival claimants
 condition sine qua non, that conflicting claims
upon the same subject matter are or may be
made against the stakeholder/plaintiff-in-
interpleader who claims no interest whatever in
the subject matter or has an interest which in
whole or in part is not disputed by the claimants
INTERPLEADER
 plaintiff is relegated merely to the role of

initiating the suit
 provides an avenue for the conflicting claims
on the same subject matter to be threshed
out in an action
INTERPLEADER
 instituted by the plaintiff’s filing of a complaint

against 2 or more defendants who have
conflicting claims
 interpleader may also be instituted by the filing
of an answer with a counterclaim or a cross-
claim for interpleader
INTERPLEADER
 Not expressly provided, but not prohibited

(Bank of Commerce v. Planters Development
Bank, G.R. Nos. 154470-71 and 154589-90, 24
September 2012; Bonifacio Bros., Inc. v. Mora,
G.R. No. L-20853, 29 May 1967)
 Section
2, Rule 6 provides that the claims of a
party are asserted in a complaint,
counterclaim, cross-claim, third-party
complaint, or complaint-in-intervention
INTERPLEADER
 The ordinary civil action rule that requires every

action to be based on a cause of action does
not exactly apply to interpleader
 Ordinary Rules: cause of action requires: (1) a
legal right in favor of the plaintiff; (2) a
correlative duty of the defendant to respect
the plaintiff’s right; and (3) an act or omission of
the defendant in violation of the plaintiff’s right
INTERPLEADER
 plaintiff-in-interpleader claims no interest in the

subject matter of the case, or may have an
interest in the subject matter provided that said
interest, in whole or in part, is not disputed by
the conflicting claimants or the defendants
INTERPLEADER
 the complaint for interpleader has a cause of

action, but based on a different standard or
meaning
 theexistence of conflicting claims among the
defendants
INTERPLEADER
 where the plaintiff does not have any claim

or interest in the subject matter of the case,
or the plaintiff asserts a right or claim but the
defendants agree that the plaintiff has such
right and nobody violated such right since
the defendants agree to the same or do not
dispute or contest such right or claim (Vda.
de Camilo v. Arcamo, G.R. No. L-15653, 19
September 1961)
INTERPLEADER
 In the absence of the foregoing sine qua non

element, the complaint for interpleader is
susceptible to dismissal for having no cause of
action
 Affirmative defense, failure to state a cause
of action
INTERPLEADER
 Consignation produces the effect of payment

or performance of the obligation
 in case of dispute as to whom payment should
be made, either consignation or an action for
interpleader may be availed of, at the option of
the plaintiff
INTERPLEADER
 Article 1256 of the Civil Code provides the

instances when prior tender of payment in
consignation is excused:
 (1)
when the creditor is absent or unknown, or
does not appear at the place of payment;
 (2) when the creditor is incapacitated to
receive the payment at the time it is due;
INTERPLEADER
 (3)when, without just cause, the creditor

refuses to give a receipt;
 (4)when two or more persons claim the same
right to collect; and
 (5) when the title of the obligation has been
lost
INTERPLEADER
 plaintiff shall pay for the docket and other legal

fees as required under the rules
 payments, in addition to the costs and litigation
expenses incurred by the plaintiff as a
consequence of the interpleader case, shall
constitute a lien or charge on the subject
matter of the action
INTERPLEADER
 unless otherwise ordered by the court

 In Bank of Commerce v. Planters Development
Bank, Supreme Court directed the conflicting
claimants to pay the docket and other lawful
fees arising from their respective claims since the
conflicting claimants are actually the ones who
make a claim, albeit done extraordinarily
through the procedural device of interpleader
(G.R. Nos. 154470-71 and 154589-90, 24 September 2012)
INTERPLEADER
 Upon the filing of the complaint - court shall

determine if there are grounds to dismiss
 lack of jurisdiction over the subject matter,
 litis pendentia,
 res judicata
 statute of limitations (Rule 14, Sec 1)
 court shall issue summons and order requiring the
conflicting claimants to interplead with one another
 Order to interplead may also contain deposit order
INTERPLEADER
 Provisional Remedy of Deposit Order - If the

interests of justice so requires, the court may
direct in the order to interplead that the subject
matter be paid or delivered to the court
 provisional remedy whereby money or other
property is placed in custodia legis to ensure
restitution to whichever party is declared
entitled thereto after court proceedings
 basis is not found in Rules 57 to 61 on provisional
remedies,
INTERPLEADER
 under Sections 5 (g) and 6, Rule 135, which

provide for the courts’ inherent power to: (1)
amend and control its process and orders to
make them conformable to law and justice;
and (2) employ all auxiliary writs, processes and
other means necessary to carry its jurisdiction
into effect
 Plaintiff must comply – has no interest in subject
matter
INTERPLEADER
 Summons, order to interplead and the

complaint, shall be served on the defendants in
the manner provided under Rule 14,
 forthe court to acquire jurisdiction over the
person of the defendants
 defendants-in-interpleader may file an answer
within 15 days from service of summons or a
Motion to Dismiss within the time for, but before
filing the answer
INTERPLEADER
 lack of jurisdiction over the subject matter,

 litis pendentia,
 res judicata
 statute of limitations
 Impropriety of interpleader action – no
conflicting claims
INTERPLEADER
Lessee was leasing the subject property from

Lessor. Land was mortgaged by Lessor as security
for a loan with Bank. Lessor defaulted, mortgage
was foreclosed and Bank acquired the property
in an auction. Both Lessor and Bank demanded
lease rentals from Lessee.
INTERPLEADER
Lessor filed an action for unlawful, detainer

against Lessee. In the meantime Lessee filed
interpleader against Lessor and Bank. Judgment
was rendered in unlawful detainer case ordering
Lessee to pay lessor. Decision became final and
executory. Lessor moved to dismiss the
interpleader case due to its impropriety. Should
dismissal be granted?
INTERPLEADER
YES. Judgment in the unlawful detainer case

already resolved the conflicting claims for
payment of rentals on the subject property. The
lessee was already bound by the judgment in the
unlawful detainer case to pay rentals to Lessor
and the reason for the interpleader case ceased
to exist.
INTERPLEADER
While the unlawful detainer case did not include

the bank as a party thereto, the issue in the
unlawful detainer case was only limited to the
material possession of the property and the issue
of ownership was immaterial therein.
INTERPLEADER
Bank has other avenues to prove its claim and it

cannot compel the lessee to pursue the
interpleader case. (Rizal Commercial Banking
Corporation v. Metro Container Corporation, G.R.
No. 127913, 13 September 2001 )
INTERPLEADER
an action for interpleader may not be utilized to

circumvent the immutability of a final and
executory judgment. It is settled that when a
decision has attained finality, it "may no longer be
modified in any respect, even if the modification
is meant to correct erroneous conclusions of fact
and law. (Bureau of Internal Revenue v. TICO
Insurance Co., Inc., G.R. No. 204226, April 18,
2022, J. Hernando)
INTERPLEADER
 All other grounds for dismissal to be raised in

Answer as affirmative defenses, otherwise –
waiver
 motion to dismiss may be filed by the conflicting
claimants within the time for filing an answer
INTERPLEADER
 motion to dismiss should be filed within the said

reglementary period, otherwise, the defendant
may, on motion, be declared in default and
thus, be barred from any claim in respect to the
subject of the interpleader
 timely filing of a motion to dismiss will toll the
period for filing an answer
INTERPLEADER
 Upon denial of the motion to dismiss, the

movant-defendant may file his answer within
the remaining period, but in no case should it
be less than 5 days, reckoned from the notice
of the denial of the motion to dismiss
 Example:
 Received summons on 1 March 2022 – has 15
days or up to 16 March 2022
INTERPLEADER
 Filed Motion to Dismiss on 9 March 2022 – period

tolled, has 7 days left before 16 March 2022
 Received order denying motion to dismiss on 1 April
2022, has until 8 April 2022 to file Answer
 If filed motion to Dismiss on 15 March 2022, has 1
day left before 16 March 2022
 Received order denying motion to dismiss on 1 April
2022, has until 6 April 2022 (in no case should it be
less than 5 days)
INTERPLEADER
 answer is a pleading asserting a defense,

Section 6, Rule 7 applies: (1) names of witnesses
who will be presented to prove a party’s claim
or defense;
 (2) summary of the witnesses’ intended
testimonies, and attaching the judicial affidavits
of the aid witnesses to the pleading; and
INTERPLEADER
 (3) documentary and object evidence in

support of the allegations contained in the
pleading.
 The failure to attach the judicial affidavits of the
said witnesses to the answer shall prevent the
defendant from presenting them during trial,
 except if the defendant presents meritorious
reasons as basis for the admission of
additional witnesses
INTERPLEADER
 parties in an interpleader case may file

permissive or compulsory counterclaims in their
respective responsive pleadings
 Third-party complaints and responsive
pleadings thereto are likewise allowed in an
interpleader case
INTERPLEADER
 Compulsory counterclaims, if any, should be set up

in the interpleader case,
 IF NOT, the same may be barred from being
raised in subsequent litigation, by reason of res
judicata
 Intervention may be allowed - by leave of court,
upon motion filed at any time before rendition of
judgment by the trial court, by a person who has a
legal interest in the matter in litigation.
INTERPLEADER
 Reply – if actionable document attached to

Answer
 within 15 calendar days from the service of
said answer
 If
no actionable document is attached to the
answer, no reply may be needed to be filed
 Rejoinder – if actionable document attached
to Reply
INTERPLEADER
 defendant in an interpleader case who fails to

file an answer within the time to do - on motion,
be declared in default
 court may thereafter render judgment barring
the defendant from any claim in respect to the
subject matter
INTERPLEADER
 Sec. 3, Rule 9 – from order of default, court shall proceed

to either:
 (1) render judgment granting the claimant such relief as
his or her pleading may warrant or render a judgment
by default; or
 (2) require, in its discretion, the claimant to submit
evidence, where such reception of evidence may be
delegated to the clerk of court, and the defaulting
defendant would only be entitled to notice of the
subsequent proceedings but shall not take part in the
trial
INTERPLEADER
 Section 3(c), Rule 9 cannot be applied to

interpleader
 Provides that pleading asserting a claim
states a common cause of action against
several defending parties, some of whom
answer and the others fail to do so, the court
shall try the case against all upon the answers
thus filed and render judgment upon the
evidence presented
INTERPLEADER
 In interpleader, defendants have conflicting

claims
 there is no common cause against or common
defense by several defendants
 the answering defendant benefits from the non-
answering defendant, and the defaulting
defendant will not benefit from the answer of
the other defendant
INTERPLEADER
 Rule 18 may be applied to interpleader

 after pre-trial, should there be no more
controverted facts, or no more genuine issue as
to any material fact, or an absence of any
issue, or should the answer fail to tender an
issue, the court may without prejudice to a
party moving for judgment on the pleadings
under Rule 34 or summary judgment under Rule
35,
INTERPLEADER
 motu proprio submit the case for summary

judgment or judgment on the pleadings,
without need of position papers or memoranda.
In such cases, judgment shall be rendered
within 90 calendar days from the termination of
the pre-trial
INTERPLEADER
 After pre-trial, the court shall refer the parties to mandatory

court-annexed mediation for an inextendible period 30
calendar days
 Judicial dispute resolution may thereafter proceed in
another court after the court-annexed mediation
 ifthe court to which the case was originally raffled is
convinced that settlement is still possible, to be
conducted within a non-extendible period of 15
calendar days from notice of failure of the court-
annexed mediation
INTERPLEADER
 Trial may then thereafter proceed in

accordance with the provisions under ordinary
civil actions and the rules of evidence
 A judgment in an interpleader action will put an
end to the conflicting claims because the court
shall determine therein the respective rights and
adjudicate the several claims of the parties
INTERPLEADER
May judgment on a compromise be allowed in

interpleader?
INTERPLEADER
 Yes, provided that the compromise agreement

should include all the conflicting claimants.
Otherwise, the plaintiff will still be exposed to
protracted litigation with the opposing
claimants, the very risk against which the
plaintiff sought protection through the
interpleader action. (Republic v. Heirs of Cruz,
G.R. No. 208956, 17 October 2018 )
DECLARATORY RELIEF AND SIMILAR
REMEDIES
 first paragraph of Section 1, Rule 63 - actions for

declaratory relief.
 second paragraph of Section 1, Rule 63 - other
similar remedies:
 (1) Reformation of Instrument;
 (2) Quieting of Title; and
REMEDIES
 (3)
Consolidation of Ownership under Article
1607 of the Civil Code
 similar to declaratory relief in that 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
REMEDIES
 Declaratory Relief – RTC – incapable of pecuniary estimation;

 venue – apply rules for personal actions
REMEDIES
 Action for reformation of instrument - RTC –

incapable of pecuniary estimation
 courtdetermines whether the parties’ written
agreement reflects their true intention
 venue – apply rules for personal actions
REMEDIES
 Quieting of Title and Consolidation of Ownership
 involve title to or possession of real property, or any
interest therein
 Article 476 of the Civil Code under the Chapter on
Quieting of Title provides that when there is a cloud
on title to real property or any interest therein, an
action may be brought to remove such cloud or to
quiet the title
 Article 1607 of the Civil Code pertains to
consolidation of ownership over real property
 assessed value not exceeding Php400,000.00 is
with inferior courts, and when exceeding
Php400,000.00, jurisdiction is with RTC (RA 11576)
 Venue: apply rules for Real actions
DECLARATORY RELIEF
Action by any person interested under:

 a deed, will, contract or other written instrument, or
whose rights are affected by a statute, executive
order or regulation, ordinance, or any other
governmental regulation, to determine any
question of construction or validity arising, and for a
declaration of his rights or duties, thereunder,
before breach or violation thereof
DECLARATORY RELIEF
 practical remedy for ending controversies that have not

reached the state where another relief is immediately
available
 courts should be allowed to act, not only when harm is
actually done and rights jeopardized by physical wrongs or
physical attack upon existing legal relations, but also when
challenge, refusal, dispute or denial thereof is made
amounting to a live controversy
DECLARATORY RELIEF
 an action for declaratory relief does not allege the

requirements of a cause of action as defined under the rules
on ordinary civil actions, i.e., there is an act or omission that
violated the plaintiff’s right
 the term “cause of action” in proceedings for declaratory
relief, vis-à-vis an ordinary civil action, is broadened;
 it is extended to a mere denial, refusal or challenge raising
at least an uncertainty or insecurity which is injurious to the
petitioner’s rights, before any breach or violation (Multi-
Realty Development Corporation v. Makati Tuscany
Condominium Corporation, G.R. No. 146726, 16 June
2006)
DECLARATORY RELIEF
A petition for declaratory relief must satisfy 6 requisites:

 (1) the subject matter of the controversy must be a
deed, will, contract or other written instrument,
statute, executive order or regulation, or ordinance;
 (2) the terms of the said documents and the validity
thereof are doubtful and require judicial construction;
 (3) there must have been no breach of the
documents in question;
DECLARATORY RELIEF
 (4) there must be an actual justiciable controversy or the

“ripening seeds” of one between persons whose interests
are adverse;
 (5) the issue must be ripe for judicial determination; and
 (6) adequate relief is not available through other means or
other forms of action or proceeding, or there is no breach or
violation of a deed, will contract, or other written instrument,
statute, executive order or regulation, ordinance or any
other governmental regulation (City of Lapu-Lapu v. Phil.
Economic Zone Authority, G.R. No. 184203 and 187583, 26
November 2014)
DECLARATORY RELIEF
First Requisite - the subject matter of the controversy

must be a deed, will, contract or other written
instrument, statute, executive order or regulation, or
ordinance - Exclusive list
 In any action which involves the validity of a statute,
executive order or regulation, or any other
governmental regulation, the Solicitor General shall
be notified by the party assailing the same and shall
be entitled to be heard upon such question
DECLARATORY RELIEF
 In any action involving the validity of a local ordinance, the

corresponding prosecutor or attorney of the local
governmental unit involved shall be similarly notified and
entitled to be heard
 The enumeration under the first paragraph of Section 1
of Rule 63 does not include decisions or orders of courts
 Rules of Court already provides for the ways by which
an ambiguous or doubtful decision may be corrected
or clarified without need of resorting to Rule 63
DECLARATORY RELIEF
 a party not agreeable to a decision, whether it be a

question of law or fact, may file a motion for
reconsideration or new trial, to correct the defect, or
even appeal the
 in case of ambiguity of the decision, a party may file
a motion for the rendition of a clarificatory judgment
DECLARATORY RELIEF
 Declaratory relief against a judgment would violate the rule

against res judicata and judicial stability
 losing party cannot modify or escape the effects of
judgment under the guise of an action for declaratory
relief
 those exercising concurrent and coordinate jurisdiction —
are not permitted to interfere with each other’s respective
cases, much less their orders or judgments (Doctrine of
non-interference)
DECLARATORY RELIEF
First Requisite - the subject matter of the controversy must be a

deed, will, contract or other written instrument, statute,
executive order or regulation, or ordinance
 judicial determination of citizenship cannot be the subject of
a petition for declaratory relief.
 There is no proceeding authorized by the law or by the Rules
of Court, for the judicial declaration of the citizenship of an
individual
 an appropriate proceeding for naturalization should be
instituted
DECLARATORY RELIEF
 Commonwealth Act No. 55 provides that

petitions for declaratory relief do not apply to
cases where a taxpayer questions his liability for
the payment of any tax under any law
administered by the BIR. Section 1.
DECLARATORY RELIEF
 courts have no jurisdiction over petitions for

declaratory relief against the imposition of tax
liability or validity of tax assessments.
 taxes being the lifeblood of the government
should be collected promptly, without
unnecessary hindrance or
delay. (Commissioner of Internal Revenue v.
Standard Insurance Co., Inc., G.R. No. 219340,
April 28, 2021, J. Hernando)
DECLARATORY RELIEF
Fourth and Fifth Requisites - there must be an actual justiciable

controversy or the “ripening seeds” of one between persons
whose interests are adverse; the issue must be ripe for judicial
determination
 lack of justiciable controversy - the fear of prospective
prosecution under the Human Security Act solely based on
remarks of certain government officials, addressed to the
general public, and tno particular, real or imminent threat to
any of the private respondents, and it was not shown that
the remarks had direct adverse effect to the petitioners
(Republic v, Roque, G.R. No. 204603, 24 September 2013 )
DECLARATORY RELIEF
Some religious leaders mentioned that they might endorse

for election. This took place before the election period. A
petition for declaratory relief was filed, asking to construe the
statement whether it was in violation of the constitutional
provision on separation of church and state. It was argued
that such endorsement would enable them to elect men to
public office who would in turn be forever beholden to the
said leaders, enabling them to control the government,
violating the separation of church and state. Was the
petition proper?
DECLARATORY RELIEF
NO. The Supreme Court refused to resolve the issue of whether a religious
leader’s endorsement of a candidate for elective office or urging or
requiring the members of his flock to vote for a specific candidate violates
the separation of church and state clause because there was no
justiciable controversy. There was no election yet. The allegations are
highly speculative and merely theoretical.
The Petition does not even allege any indication or manifest intent on the
part of any of the respondents to champion an electoral candidate, or to
urge their so-called flock to vote for, or not to vote for, a particular
candidate. It is a time-honored rule that sheer speculation does not give
rise to an actionable right (Velarde v. Social Justice Society, G.R. No.
159357, April 28, 2004)
DECLARATORY RELIEF
Sixth Requisite - adequate relief is not available through other

means or other forms of action or proceeding, or there is no
breach or violation of a deed, will contract, or other written
instrument, statute, executive order or regulation, ordinance or
any other governmental regulation
 a court can no longer assume jurisdiction over an action for
declaratory relief if its subject, i.e., the deed, will, contract or
other written instrument, statute, executive order or
regulation, ordinance or any other governmental regulation,
had already been infringed or transgressed before the
institution of the action
DECLARATORY RELIEF
 a cause of action already accrued in favor of one or the

other party, there is nothing more for the court to explain or
clarify short of a judgment or final order
 Dismissal if breach before action filed
 Rule 63, Section 5 – court, motu proprio or upon motion, may
refuse to exercise power to declare rights and to construe
instruments in any case where a decision would not
terminate the uncertainty or controversy which gave rise to
the action, or in any case where the declaration or
construction is not necessary and proper under the
circumstances
DECLARATORY RELIEF
Sixth Requisite - adequate relief is not available through other means or other
forms of action or proceeding, or there is no breach or violation of a deed, will
contract, or other written instrument, statute, executive order or regulation,
ordinance or any other governmental regulation
 If breach before action filed, motu proprio dismiss
 If breach before action filed, and court does not motu proprio dismiss,
move to dismiss on the basis of Section 5, Rule 63
 If court does not dismiss and proceeds with case until judgment despite
breach prior to filing case - decision for declaratory relief would be void
and of no effect (Tambunting, et al., v. Spouses Sumabat, et al., G.R. No.
144101, 16 September 2005)
DECLARATORY RELIEF
Sixth Requisite - adequate relief is not available through other

means or other forms of action or proceeding, or there is no
breach or violation of a deed, will contract, or other written
instrument, statute, executive order or regulation, ordinance or
any other governmental regulation
 If no breach before filing of action, but breach occurred
after filing of action, but before final termination of the case –
conversion to ordinary action
 No conversion if breach before filing of action – dismissal
DECLARATORY RELIEF
 Parties shall be allowed to file such pleadings as may be

necessary and proper
 May amend pleadings to comply with ordinary rules
 to prevent a breach from being committed during the
pendency of the petition for declaratory relief, the
provisional remedy of a writ of preliminary injunction, if the
requisites are present, may be availed of to preserve the
status quo until the merits of the case can be fully heard
DECLARATORY RELIEF
 Rule 63, Section 5 – court, motu proprio or upon motion,

may refuse to exercise power to declare rights and to
construe instruments in any case where a decision
would not terminate the uncertainty or controversy
which gave rise to the action, or in any case where the
declaration or construction is not necessary and proper
under the circumstances
 Note, this is only limited to Declaratory relief, and does
not apply to other similar remedies
DECLARATORY RELIEF
A petition for declaratory was filed, it being alleged that

petitioner X is not covered by the subject BIR
Implementing Rules. However, X also argues that the BIR
Implementing Rules was issued with grave abuse of
discretion, amounting to lack of jurisdiction, and prays that
it be annulled and struck down for being unconstitutional.
Will the petition for declaratory relief prosper?
DECLARATORY RELIEF
NO. The petition does not only seek to declare rights under the BIR
implementing rules but to annul the the same for being
unconstitutional, having been issued with grave abuse of
discretion, amounting to lack or excess of jurisdiction. Adequate
relief is available through other means or other forms.
DECLARATORY RELIEF
Decision declaring whether X is covered by the regulation

would not terminate the uncertainty or controversy which gave
rise to the action, ie, seeking to declare it unconstitutional for
being issued with grave abuse of discretion. The declaration or
construction is not necessary and proper under the
circumstances.
Proper remedy is is to invoke the expanded certiorari jurisdiction
of the court under Section 1, Article VIII of the Constitution, or to
bring an action for prohibition.
DECLARATORY RELIEF
 A compulsory counterclaim may be set up in the responsive

pleading in an action for declaratory relief
 compulsory counterclaim is any claim for money or any
relief, which a defending party may have against an
opposing party, which at the time of suit arises out of, or is
necessarily connected with, the same transaction or
occurrence that is the subject matter of the plaintiff’s
complain
DECLARATORY RELIEF
 will be barred by res judicata in the future if not

set up in the answer to the complaint in the
same case (Visayan Packing Corporation v.
Reparations Commission, G.R. No. L-29673, 12
November 1987)
DECLARATORY RELIEF
Summary Judgment
 court may render summary judgment motu proprio or
upon motion in declaratory relief, at any time after the
pleading in answer to said petition had been served,
when there is no genuine issue as to the existence of a
material fact
 to expedite or promptly dispose of cases where the
facts appear undisputed and certain from the
pleadings, depositions, admissions and affidavits on
record (Rule 35, Sec. 1 and Rule 18, Sec. 10)
DECLARATORY RELIEF
General Rule: declaratory relief does not essentially entail an

executory process because the relief sought and the relief to be
granted only involve the declaration of rights and duties of the parties
under the instrument
Exceptions:
1. Philippine Deposit Insurance Corporation v. Court of Appeals, et al.,
- Supreme Court affirmed the trial court’s decision to allow and grant
the counterclaim for payment of time deposit in the declaratory relief
case
 while a declaratory relief does not essentially entail an executory
process, there is nothing in its nature that would prohibit a
counterclaim based on the same transaction, deed or contract
subject of the complaint.
DECLARATORY RELIEF
 the same rules governing ordinary civil suits may and do

apply to special civil actions if not inconsistent with or if
they may serve to supplement the provisions of the
peculiar rules governing special civil actions
 Execution of counterclaim in declaratory relief
(Philippine Deposit Insurance Corporation v. Court of
Appeals, G.R. No. 126911, 30 April 2003)
DECLARATORY RELIEF
2. Matalin Coconut Co., v. Municipal Council of

Malabang, Lanao del Sur, et al., - Supreme Court allowed
the refund of taxes paid under protest in a declaratory
relief case
 payments made under protest did not affect the case;
It was found that the declaratory relief action was still
proper because the applicability of the ordinance to
future transactions still remained to be resolved,
although the matter of refund could also be threshed
out in an ordinary suit for the recovery of the taxes paid
DECLARATORY RELIEF
 what was executory here was not the declaration of

rights but the payments made previously
 Supreme Court sustained such recovery in the
declaratory relief case to avoid multiplicity of suits and
because the answer praying for the refund and the
evidence presented on the payments sought to be
refunded were not objected to in the trial court (G.R.
No. L-28138, 13 August 1986)
DECLARATORY RELIEF
3. Department of Budget and Management, et al., v. Manila’s

Finest Retirees Association, Inc., et al.
 in declaring the rights of the INP retires, also directed the
respondents-agencies to immediately effect and implement
the proper adjustments on the INP retirees’ retirement
 SC ruled that execution of judgments in a petition for
declaratory relief was not necessarily indefensible, and cited
Philippine Deposit Insurance Corporation v. Court of Appeals,
et al., and Matalin Coconut Co., v. Municipal Council of
Malabang, Lanao del Sur, et al.,
DECLARATORY RELIEF
 the INP retirees pleaded for the immediate adjustment

of their retirement benefits which the respondents-
agencies, despite notice of the said prayer, did not
object to
 grant of immediate adjustment forestalled multiplicity of
suits, which would entail a long and arduous process.
Considering the INP retirees’ advanced years, they
could hardly afford another protracted proceedings
(G.R. No. 169466, 9 May 2007)
DECLARATORY RELIEF
 Court orders or decisions cannot be the subject matter of a petition

for declaratory relief. They are not included within the purview of the
words "other written instrument" in Rule 63.
 The same principle applies to orders, resolutions, or decisions of quasi-
judicial bodies, and this is anchored on the principle of res judicata.
 Consequently, a judgment rendered by a court or a quasi-judicial
body is conclusive on the parties, subject only to appellate
authority. The losing party cannot modify or escape the effects of
judgment under the guise of an action for declaratory relief (Erice v.
Sison, A.M. No. RTJ-15-2407, November 22, 2017)
REFORMATION OF INSTRUMENT
Parol Evidence Rule: when the terms of an agreement have been

reduced to writing, it is considered as containing all the terms agreed
upon and there can be, between the parties and their successors in
interest, no evidence of such terms other than the contents of the written
agreement
One of the exceptions: action for reformation and present evidence to
modify, explain or add to the terms of a written agreement if he puts in
issue in his verified pleading the failure of the written agreement to
express the true intent and agreement of the parties thereto (Rule 130,
Sec. 10)
 Action in personam even if real estate is involved

(Toyota Motor Philippines Corporation v. Court of
Appeals, G.R. No. 102881, 7 December 1992)
 In reformation of instrument, what is reformed is not the
agreement itself, but the instrument embodying the
said agreement
 Reformation of instrument presupposes that:

 (1) there was a meeting of the minds of the parties to the
contract;
 (2) the instrument does not express the true intention of the
parties; and
 (3) the failure of the instrument to express the true intention
of the parties is due to mistake, fraud, inequitable conduct
or accident (National Irrigation Administration v. Gamit, G.R.
No. 85869, 6 November 1992)
 a right of action to file an action for reformation of an

instrument when his legal right is denied, challenged or
refused by another
 The mere recording of a deed does not charge the
party with constructive notice of a mistake therein, but
is to be considered with other facts and circumstances
in determining whether the party should be charged
with notice, actual or constructive
 The cause of action arises only upon knowledge of the

other party’s intention, by overt acts, not to abide by
the true agreement (Tormon v. Cutanda, G.R. No. L-
18785, 23 December 1963)
QUIETING OF TITLE
 common law remedy grounded on equity for the

removal of any cloud of doubt or uncertainty with
respect to real property
 Suits to quiet title are quasi in rem, which is one brought
against persons, seeking to subject the property of such
persons to the discharge of the claims assailed
 Binding only between the parties
QUIETING OF TITLE
 If in possession of land, action is imprescriptible

 plaintiffhas the right to wait until his
possession is disturbed or his title is questioned
before initiating an action to vindicate his
right
QUIETING OF TITLE
 2 indispensable requisites must concur, namely:

 (1) the plaintiff has a legal or an equitable title to or interest
in the real property subject of the action; and
 (2) the deed, claim, encumbrance or proceeding claimed
to be casting a cloud on his title must be shown to be in fact
invalid or inoperative despite its prima facie appearance of
validity or legal efficacy
 Theabsence of either of the requisites for quieting of title will
cause the dismissal of the said action
QUIETING OF TITLE
 A cloud on a title exists when:

 (1)there is an instrument (deed, or contract) or
record or claim or encumbrance or proceeding;
 (2) which is apparently valid or effective;
 (3)but is, in truth and in fact, invalid, ineffective,
voidable, or unenforceable, or extinguished (or
terminated) or barred by extinctive prescription;
and
 (4) may be prejudicial to the title
QUIETING OF TITLE
 legal title denotes registered ownership

 equitable title means beneficial ownership
 Equitable title is derived through a valid contract or
relation, and based on recognized equitable
principles;
 to draw to himself an equitable title, he must show
that the one from whom he derives his right had
himself a right to transfer
CONSOLIDATION OF OWNERSHIP UNDER
ARTICLE 1607 OF THE CIVIL CODE
 consolidation of ownership prescribed in Article 1607 of the

Civil Code is merely for the purpose of registering and
consolidating title to the property in case of a vendor a
retro’s failure to redeem
 Relate to Article 1615 of the Civil Code - Article 1616 of the
Civil Code pertains to a conventional redemption,
 Not a legal redemption as that under Rule 39, and Act
No. 3135 - right to redeem a property sold at an
execution or foreclosure sale, respectively, within 1 year
from the registration of the certificate of sale
 Conventional Redemption: vendor reserves the right to repurchase

the thing sold, with the obligation to comply with the provisions of
Article 1616 of the Civil Code and other stipulations which may be
agreed upon
 for the vendor a retro to avail himself of the right of repurchase, he
must:
 return to the vendee a retro the price of the sale, the expenses
of the contract and any other legitimate payments made by
reason of the sale, and the necessary and useful expenses
made on the thing sold
 Cannot repurchase without complying with the foregoing
 If fail to repurchase, title will not automatically transfer

to Buyer a retro, because of Article 1607, Civil Code
 consolidation of ownership of real property in the
vendee by virtue of the vendor’s failure to comply
with the provisions of Article 1616 of the Civil Code
shall not be recorded in the Registry of Property
without a judicial order, after the vendor has been
duly heard
 The parties to the pacto de retro sale – the vendor, the

vendee, and their assigns and heirs –
 indispensable parties that should be impleaded in
the action for consolidation of ownership under
Article 1607 of the Civil Code
 order granting the vendee a retro’s petition for
consolidation of ownership, without the vendor a
retro being named as a respondent, summoned and
heard, is a patent nullity
 judicial confirmation:
 to have all doubts over the true nature of the
transaction speedily ascertained and decided
 to prevent the interposition of buyers in good faith
while such determination is being made
 buyer a retro can easily cut off any claims of the
seller by disposing of the property, after such
consolidation (without judicial confirmation), to
strangers in good faith and without notice
 Articles 1602 and 1603 of the Civil Code - in case of a

contract of sale with a right to repurchase or
conventional redemption, there is a disputable
presumption that the same is an equitable mortgage
 sales with rights to repurchase are not favored, and
the law favors the least transmission of rights
 In action for consolidation of ownership under Article

1607 of the Civil Code, the vendee a retro is given the
opportunity to overthrow the prima facie presumption
in favor of equitable mortgage by presenting clear
and convincing evidence that the contract is a bona
fide deed of sale with the right to repurchase
Article 1602 of the Civil Code provides that a

contract shall be presumed to be an equitable
mortgage, in any of the following cases:
 When the price of a sale with right to repurchase
is unusually inadequate;
 When the vendor remains in possession as lessee
or otherwise;
 When upon or after the expiration of the right to

repurchase another instrument extending the
period of redemption or granting a new period is
executed;
 When the purchaser retains for himself a part of the
purchase price;
 When the vendor binds himself to pay the taxes on

the thing sold;
 In any other case where it may be fairly inferred that
the real intention of the parties is that the transaction
shall secure the payment of a debt or the
performance of any other obligation
 If the court finds that the vendee a retro failed

to establish the existence of a pacto de retro
sale and finally rules that the contract is actually
an equitable mortgage, the remedy is either to:
 (1) recover the debt by means of an action
for collection for sum of money; or
 (2) foreclose the mortgage whether judicially
or extrajudicially
Certiorari, Prohibition, Mandamus
 Regional Trial Courts, Court of Appeals and the Supreme

Court have original and concurrent jurisdiction over
certiorari, prohibition and mandamus actions
 Subject to hierarchy of courts
 writs of certiorari, mandamus and prohibition against
first level courts should be filed with the Regional Trial
Court,
 Those against the RTC, with the Court of Appeals,
before resort may be had before the Supreme Court
 Sandiganbayan shall have exclusive original jurisdiction

over petitions for the issuance of
the writs of mandamus, prohibition, certiorari, habeas
corpus, injunctions, and other ancillary writs and
processes in aid of its appellate jurisdiction and over
petitions of similar nature, including quo
warranto, arising or that may arise in cases filed or
which may be filed under Executive Order Nos. 1, 2, 14
and 14-A, provided that the jurisdiction over these
petitions shall not be exclusive of the Supreme Court
(Section 2 of Republic Act No. 10660
 COMELEC - In election cases involving an act or an

omission of a municipal or a regional trial court, the
petition shall be filed exclusively with the COMELEC, in
aid of its appellate jurisdiction (Rule 65, Sec. 4)
 Scope of Enforceability when issued by RTC – within the

judicial Region
 judicial regions as provided under Section 13 of B.P. 129
 RTC Mandaluyong issues writ, may be enforced in Pasig
City – within the same National Capital Judicial Region
 Regional Trial Courts original jurisdiction to issue writs of
certiorari, prohibition, mandamus, quo warranto, habeas
corpus, and injunction, provides that the writs issued by the
Regional Trial Courts are enforceable in any part of their
respective regions (Sec. 21(1), BP 129)
Rule 45 vs Rule 65
Rule 45 Rule 65
Mode of Appeal Original Action - remedy of last resort, available

only to raise jurisdictional issues when there is no
appeal or any other plain, speedy, and
adequate remedy in the ordinary course of law
Supreme Court – appellate jurisdiction RTC, CA, SC – original concurrent jurisdiction
Generally raises questions of law, subject to Does not include an inquiry as to the correctness
exceptions of the evaluation of evidence
Questions of fact cannot be raised except to

determine whether the public respondent was
guilty of grave abuse of discretion amounting to
lack or excess of jurisdiction
seeks to correct errors of judgment committed seeks to correct errors of jurisdiction - where the
by the court - errors of procedure or mistakes in act complained of was issued by the court
the court’s findings/ evaluation of evidence without or in excess of jurisdiction, or with grave
abuse of discretion, which is tantamount to lack
or in excess of jurisdiction
Rule 45 vs Rule 65
RULE 45 RULE 65
Appeal of Judgment or Final Order Only when there is no appeal nor any plain,
speedy and adequate remedy in the ordinary
course of law – not substitute for a lost appeal
The remedies of appeal and certiorari are mutually exclusive and not alternative or successive
From denial, remedy is motion for If judgment by RTC, appeal to CA by Rule 41 but
reconsideration Memorandum instead of Appellant’s Brief (Rule
44, Sec. 7 and 10), unless pure question of law is
raised, Rule 45 SC
If judgment by CA, remedy is Rule 45 to SC

15 days, subject to fresh period rule 60 days, subject to fresh period rule
subject to an extension of 30 days provided that No provision for grant of extension, subject to
docket and lawful fees are paid upon filing the exception: most persuasive and weighty reasons
said motion therefor
Rule 45 vs Rule 65
Rule 65 may be treated as Rule 45 by SC in the spirit of liberality and substantial

justice provided that:
 (1) the petition for certiorari was filed within the reglementary period to file a
petition for review on certiorari;
 15 days, otherwise, decision becomes final and executory and nothing left to appeal
 (2) the petition avers errors of judgment;
 (3) when there is sufficient reason to justify the relaxation of the rules
 Basis: the Supreme Court may, in the exercise of its inherent power to
promulgate rules concerning pleading, practice and procedure in all courts as
expressly recognized under the Constitution, suspend procedural rules
Certiorari
The essential requisites for a petition for certiorari under Rule 65

are:
 (1) the writ is directed against a tribunal, a board, or an
officer exercising judicial or quasi-judicial function;
 Expanded certiorari jurisdiction of courts under Section 1,
Article VIII of the Constitution provides, among others, that
the judicial power includes the duty of the courts of justice
to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of
the government
Certiorari
 (2) such tribunal, board, or officer has acted without or

in excess of jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction;
and
 (3) there is no appeal or any plain, speedy, and
adequate remedy in the ordinary course of law
Certiorari
First Requisite: (1) the writ is directed against a tribunal, a board, or

an officer exercising judicial or quasi-judicial function, subject to
expanded certiorari jurisdiction under the constitution
 Secretary of Justice, Preliminary Investigation – remedies: motion
for reconsideration, from denial, Rule 65, CA, provided there is
grave abuse of discretion amounting to lack or excess of
jurisdiction
 Ombudsman, Preliminary Investigation – remedies: motion for
reconsideration, from denial, Rule 65, SC, provided there is grave
abuse of discretion amounting to lack or excess of jurisdiction
Certiorari
 If Ombudsman Administrative Disciplinary Case –

 imposes light penalties (public censure, reprimand,
suspension of not more than one month or fine
equivalent to one month salary) or absolves the
respondent of the charge, such decision under
Section 27 of the Ombudsman Act is considered
final and unappealable
Remedy is Rule 65 with CA, provided there is
grave abuse of discretion, amounting to lack or
excess of jurisdiction
Certiorari
 If Ombudsman Administrative Disciplinary Case –

 where the penalty is not light or does not absolve the respondent of
the charge, decision is immediately executory but appealable
 remedy is by appeal to the Court of Appeals under Rule 43
 Section 27 of the Ombudsman Act insofar as it provides that
decisions in administrative disciplinary cases of the Ombudsman
may be appealed to the Supreme Court under Rule 45 was
declared unconstitutional for violating the proscription in Section
30, Article VI of the Constitution against a law which increases the
appellate jurisdiction of the Supreme Court without its advice and
concurrence
Certiorari
Second Requisite: such tribunal, board, or officer has acted without

or in excess of jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction
 In the absence of showing that the respondent acted with
jurisdiction, the petition for certiorari shall be dismissed
 petitioner has the burden to discharge the burden of proving
there was grave abuse of discretion on the part of the
respondent, in accordance with the definition and standards set
by law and jurisprudence
Certiorari, Prohibition
 General Rule: courts will not interfere with exercise of

discretion in determining probable cause
 Exception: When there is grave abuse of discretion
amounting to lack or excess of jurisdiction (provided,
there is no other appeal, or any plain, speedy,
adequate remedy under the ordinary course of law)
Third Requisite: there is no appeal or any plain, speedy,

and adequate remedy in the ordinary course of law
 Section 1, Rule 41 provides that the aggrieved party, in
any of the following circumstances where no appeal is
available, may file a special civil action under Rule 65
as a remedy:
 (a) an order denying a petition for relief or any

similar motion seeking relief from judgment;
 (b) interlocutory order;
 (c) order disallowing or dismissing an appeal;
 (d) an order denying a motion to set aside a

judgment by consent, confession or
compromise on the ground of fraud, mistake or
duress, or any other ground vitiating consent
 (e) an order of execution
 (f) a judgment or final order for or against one or

more of several parties or in separate claims, counterclaims,
cross-claims and third-party complaints, while the main case is
pending, unless the court allows an appeal therefrom; and
 Note: Rule 36, Sec, 5 – in case a separate judgment is
rendered, the court, by order, may stay its enforcement until
the rendition of a subsequent judgment and may prescribe
to such conditions as may be necessary to secure the
benefit thereof to the party in whose favor the judgment is
rendered
 (g) an order dismissing an action without prejudice
 Interlocutory Order – leaves something else to be done,

does not dispose of case
 General Rule: Certiorari, if there is grave abuse of
discretion, amounting to lack or excess of jurisdiction,
from denial of motion for reconsideration against the
interlocutory order
 Exceptions: When certiorari, prohibition, mandamus

prohibited against the interlocutory order
 (1) certiorari, mandamus or prohibition against any
interlocutory order issued by the court are prohibited
pleadings under the Rules of Procedure for Small Claims
Cases, Rules of Summary Procedure, the Rule on the Writ
of Amparo, and the Rule on the Writ of Habeas Data
 Note, however: the remedy of an aggrieved party against
a final and unappealable judgment in a small claims case
is a petition for certiorari under Rule 65
 (2) to assail the denial of affirmative defenses (Rule 8, Sec. 12

(e));
 Remedy: the denial should be among the matter raised
on appeal after judgment on the merits
 (3) to assail the motu proprio order of the court to submit the
case for judgment on the pleadings or summary judgment
after pre-trial (Rule 18, Sec. 10)
 Remedy is to appeal the judgment
 (4) to assail the order denying the demurrer to evidence in a

civil case before judgment (Rule 33, Sec. 2)
 Remedy is to proceed with presentation of evidence,
then to appeal and raise as an error in the appeal the
denial of demurrer
 Exception: in denial of demurrer in criminal case, certiorari
was allowed as a remedy, if denial was was attended by
jurisdiction Macapagal-Arroyo v. People, G.R. Nos. 220598
& 220953, 19 July 2016; Cruz v. People, G.R. No. 121422, 23
February 1999
 (5) to assail any action of the court on a motion for

judgment on the pleadings and motion for summary
judgment (Rule 34, Sec. 2; Rule 35, Sec. 3)
 Remedy is to appeal the judgment
 Order granting motion, is different from the judgment
itself
 An order dismissing an action without prejudice – means

without prejudice to refiling
 Lack of jurisdiction over the subject matter, improper
venue, lack of jurisdiction over the person, failure to state
a cause of action, failure to comply with condition
precedent
 Dismissal with prejudice: res judicata, claim or demand
has been waived, abandoned or otherwise extinguished,
claim on which action is founded is unenforceable under
statute of frauds
 An order dismissing an action without prejudice

 Unlawful detainer, filed with RTC, dismissed for lack of
jurisdiction: refile with MTC, not grave abuse of
discretion, and there is another remedy
 Unlawful detainer filed with MTC, dismissed for lack of
jurisdiction: MR of judgment prohibited in summary
procedure, dismissal without prejudice, tainted with
grave abuse of discretion, certiorari with RTC
Third Requisite: there is no appeal or any plain, speedy,

and adequate remedy in the ordinary course of law
 Conviction in criminal cases: remedy is appeal
 Acquittal in criminal cases: cannot file motion for
reconsideration/assail acquittal by appeal - will place
accused twice in jeopardy
 Acquittal is immediately final and executory

 Remedy: Certiorari, if tainted with grave abuse of
discretion amounting to lack or excess of jurisdiction
 MTC acquittal, file with RTC Certiorari – by prosecutor
 RTC
acquittal, file with CA Certiorari – by Solicitor
General
Third Requisite: there is no appeal or any plain, speedy, and adequate

remedy in the ordinary course of law
 Even if there is grave abuse of discretion, but there is another plain, speedy
adequate remedy, certiorari will not lie
 By exception, the Supreme Court has allowed the resort to a petition
for certiorari despite the existence of or prior availability of an appeal, such
as:
 (1) where the appeal does not constitute a speedy and adequate
remedy;
 (2) where the orders were also issued either in excess of or without
jurisdiction;
 (3) for certain special considerations, as public welfare

or public policy;
 (4) where in criminal actions, the court rejects rebuttal
evidence for the prosecution as, in case of acquittal,
there could be no remedy;
 (5) where the order is a patent nullity; and
 (6) where the decision in the certiorari case will avoid
future litigations.

General rule: a motion for reconsideration must first be filed
 motion for reconsideration may still be considered as a plain, speedy,
and adequate remedy in the ordinary course of law.
Exceptions:
 (1) where the order is a patent nullity, as where the court a quo has no
jurisdiction;
 (2) where the questions raised in the certiorari proceedings have been
duly raised and passed upon by the lower court, or are the same as
those raised and passed upon in the lower court;

Exceptions:
 (3) where there is an urgent necessity for the resolution of the question
and any further delay would prejudice the interests of the Government
or of the petitioner, or the subject matter of the action is perishable;
 (4) where, under the circumstances, a motion for reconsideration would
be useless;
 (5) where petitioner was deprived of due process and there is extreme
urgency for relief;

Exceptions:
 6) where, in a criminal case, relief from an order of arrest is urgent and the
granting of such relief by the trial court is improbable;
 (7) where the proceedings in the lower court are a nullity for lack of due
process;
 (8) where the proceedings were ex parte or in which the petitioner had no
opportunity to object; and
 (9) where the issue raised is one purely of law or where public interest is
 Petition for mandamus not appropriate to compel the production

of the will as there is another plain, speedy and adequate remedy
for such production of the will
 Remedy: institute probate proceedings for the allowance of the
will, whether the same is in his possession or not.
 any person interested in the estate may file a petition to have the
will allowed, whether the same be in his possession or not, or is lost
or destroyed
 the person who has custody of the will shall deliver the will to the
court or to the executor named in the will;
 the executor shall present the will to the court;
 the person who neglects any of the foregoing duties shall be
fined; and
 a person having custody of a will after the death of the

testator who neglects without unreasonable cause to
deliver the same when ordered to do so, may be
committed to prison and there kept until he delivers the
will. (Section 1, Rule 76; Sections 2-5, Rule 75; Uy Kiao
Eng v. Lee, G.R. No. 176831, 15 January 2010)
Certiorari, Prohibition Mandamus
 Filing of petition will not suspend the proceedings of the case

below
 unless a temporary restraining order or a writ of preliminary
injunction has been issued, enjoining the public respondent from
proceeding with the principal case
 Without injunctive relief, court below will proceed with hearing
main case
 Prohibited motion under ordinary rules: motion to suspend
proceedings without a temporary restraining order or injunction
issued by a higher court (Rule 15, Sec. 12 (d))
 Petitioner: person aggrieved

 is one who was a party to the original proceedings that
gave rise to the original action under Rule 65
 Not just any person who feels injured
 One who was never a party in the proceedings before
the lower court has no standing
Private Respondent:
 person interested in sustaining the proceedings in the
court
 Duty to appear and defend both in his own behalf and
in behalf of the public respondent affected by the
proceedings
 Shall be liable for the costs awarded in favor of
petitioner
Public Respondent
 judge, court, quasi-judicial agency, tribunal, corporation, board,
officer or person, whose acts or omissions are the subject of the
petition should be impleaded
 Nominal but indispensable
 General Rule: shall not appear in or file an answer/comment to the
petition or any pleading therein, or participate in the proceedings
 Exception: unless otherwise specifically directed by the court
 Public Respondent – always impleaded

 Actions under Rule 65 need not resort to prior barangay
conciliation proceedings
 Section 408 (b) of the Local Government Code - lupon of
each barangay shall not have the authority to bring together
parties residing in the same city or municipality for amicable
settlement of disputes where one party is a public officer or
employee and the dispute relates to the performance of his
official functions.
 certiorari - petition prays that judgment be rendered annulling or

modifying the proceedings of the public respondent tribunal, board or
officer, and that the court grant such incidental reliefs as law and
justice may require
 Prohibition - petition prays that judgment be rendered commanding
the respondent to desist from further proceedings in the action or
matter specified therein, or otherwise granting such incidental reliefs as
law and justice may require
 Mandamus - the petition should allege the facts with

certainty, praying that judgment be rendered commanding
the respondent, immediately or at some other time to be
specified by the court, to do the act required to be done to
protect the rights of the petitioner, and to pay damages
sustained by the petitioner by reason of the wrongful acts of
respondent
 In all cases under Rule 65, there may be prayer for

damages
 If the petition is sufficient in form and substance, the
court shall issue an order requiring the respondent to
comment on the petition within 10 days
 before giving due course to the petition, the court may
require the respondents to file their comment on the
petition, and not a motion to dismiss.
 Non-filing of comment is not admission of allegations in

petition – from expiration of period to file, court shall
proceed with case and determine whether allegations
of petition are true, and if so, render judgment granting
relief to which petitioner is entitled
 The court may dismiss the petition if it finds the same to
be patently without merit or prosecuted manifestly for
delay, or if the questions raised therein are too
unsubstantial to require consideration
 the court may award in favor of the respondent treble costs

solidarily against the petitioner and counsel, in addition to
subjecting the counsel to administrative sanctions under
Rules 139 and 139-B of the Rules of Court
 Discretionary to award treble costs
 Other disciplinary sanctions on erring lawyers for patently
dilatory and unmeritorious petitions for certiorari – may
motu proprio be imposed, based on res ipsa loquitur
Prohibition
 preventive remedy seeking a judgment ordering the

respondent to desist from continuing with the commission of
an act perceived to be illegal
 Requisites:
 (1) the impugned act must be that of a tribunal,
corporation, board, officer, or person, whether exercising
judicial, quasi-judicial or ministerial functions;
 (2) the respondent judge or tribunal issued the order
without or in excess of jurisdiction or with grave abuse of
discretion, or the assailed interlocutory order is patently
erroneous; and
Prohibition
 Motion to Dismiss Unlawful Detainer filed in RTC for

lack of jurisdiction, denied by RTC, MR is also
denied, petition for prohibition may be a remedy
 (3) there is no plain, speedy, and adequate remedy
in the ordinary course of law
Prohibition
 Prohibition will not lie when there are no further

proceedings to be enjoined or when the matter is fait
accompli
 Its proper function is to prevent the doing of an act,
which is about to be done
 Once fait accompli, another appropriate remedy may
instead be availed of
 May be joined with Certiorari
Prohibition
Petition for Prohibition was filed with the Supreme Court, seeking to prohibit the
Deputy Ombudsman for the Military and Other Law Enforcement Offices from
implementing its Decision finding the petitioners guilty of Grave Misconduct
and imposing the penalty of Dismissal from Service, together with its accessory
penalties. The petition for prohibition was filed before the public respondent
therein could rule on petitioners’ motion for reconsideration.
During the pendency of the petition for prohibition, the public respondent
modified the assailed decision finding petitioners instead guilty of conduct
prejudicial to the best interest of the service and imposing the penalty of
suspension from office instead of dismissal from the service.
Should the petition for prohibition prosper?
Prohibition
NO. First, there was violation of the doctrine hierarchy of courts by bringing the
petition directly to the Supreme Court.
Second, the petition was improperly filed because the petitioners had some other
plain, speedy and adequate remedy in the ordinary course of law, such as a
motion for reconsideration. The mere fact that the Ombudsman’s decision
imposing the penalty of dismissal from the service was immediately executory,
alone, did not justify the issuance of an injunctive writ.
Third, even granting the propriety of the petition, the same still cannot be granted
considering that the assailed decision had already been modified by the ruling on
the motion for reconsideration. Since the act sought to be enjoined had already
been modified, there was nothing more to restrain. (Belmonte v. Office of the
Deputy Ombudsman for the Military and Other Law Enforcement Offices, G.R. No.
197665, 13 January 2016)
Mandamus
 a command issuing from a court of law of competent jurisdiction,

directed to some inferior court, tribunal, or board, or to some
corporation or person requiring the performance of a particular
duty therein specified, which duty results from the official station of
the party to whom the writ is directed or from operation of law
 requisites:
 (1) petitioner must show a clear legal right to the act demanded;
 (2) respondent tribunal, corporation, board, officer or person must
have the duty to perform the act because the same is mandated
by law;
Mamdamus
 (3) respondent tribunal, corporation, board, officer or person

unlawfully: (a) neglected the performance of an act which
the law specifically enjoins as a duty resulting from office,
trust, or station; or (b) excluded the petitioner from the use
and enjoyment of a right or office to which he is entitled.
 (4) the act to be performed is ministerial, not discretionary;
and
 (5) there is no other plain, speedy, and adequate remedy in
the ordinary course of law
Mandamus
 Must have clear legal right - will not issue to compel an official to
do anything which is not his duty to do or which it is his duty not to
do, or to give to the applicant anything to which he is not entitled
by la
 Will not lie if act is discretionary
 Cannot compel Prosecutor to find or not to find probable cause
 May compel prosecutor to act on complaint, but not to act a
certain way
 cannot be used to enforce contractual obligations
 Other remedy available: specific performance/ damages
 Special Judgment under Section 11, Rule 39

 Judgment not falling under Sections 9 (money) and 10
(specific act – convey title, sale of property, delivery of
property, removal of improvements), Rule 39
 Execution: certified copy of the judgment shall be attached
to the writ of execution and shall be served upon the party
against whom the same is rendered, or upon any other
person required thereby, or by law, to obey the same
 Such person may be punished for contempt if he disobeys
such judgment
Quo Warranto
 “by what authority”

 Quo warranto is an action for the usurpation of
a public office position or franchise.
 A quo warranto proceeding in relation to an
office may refer to an elective, governed by
OEC, HRET, SET and its rules, or appointive office,
governed by Rule 66
Quo Warranto
 If quo warranto is against corporations, or

against persons who usurp an office in a
corporation are governed by the Interim Rules
of Procedure Governing Intra-Corporate
Controversies under RA 8799, and not by Rule
66
 jurisdiction is with RTC
Rule 66 - Quo Warranto
Brought in the name of the Republic of Brought in the name of a Private

the Philippines Individual
An action for usurpation of public A person claiming right to a public
office, position or franchise against: office or position usurped or unlawfully
• Person who usurps, intrudes into, or held or exercised by another may
unlawfully holds or exercises a bring an action therefor in his own
public office, position or franchise name
• Public officer who does or suffers • Will not prosper if petitioner was
an act which, by the provision of only appointed in acting capacity
law, constitutes a ground for – temporary in nature
forfeiture of his office • Will not prosper if not claiming any
• Association which acts as a right to office
corporation within the Philippines,
without being legally incorporated
or without lawful authority so to act
Filed by the Solicitor General Or Public • Private individual directly files

Prosecutor • Petitioner must claim a right to office –
• When directed by the President of show clear legal right to office
• Must show that respondent is unlawfully in
the Philippines
possession of the subject office or position
• When upon complaint or otherwise • Relator, instead of requesting with the
he has good reason to believe that Solicitor General, or having court give
any case specified in Section 1, Rule approval first, may file an action in his own
66 can be established by proof must name, provided he claims a right to the
commence such action office
Brought in the name of the Republic of the Brought in the name of a Private Individual
Philippines
Filed by the Solicitor General Or Public Prosecutor • Private individual directly files
• At the request and upon the relation of • Petitioner must claim a right to office – show
another person – brought by OSG, ex ralatione clear legal right to office
• With the permission of the court where the • Must show that respondent is unlawfully in
action is to be filed possession of the subject office or position
• May first require indemnity for expenses • Relator, instead of requesting with the Solicitor
and costs of the action in an amount General, or having court give approval first,
approved by and to be deposited in the may file an action in his own name, provided
court he claims a right to the office
• Hearing to be conducted, with notice to
respondent so he may be heard in
opposition
• If permission granted, order will be issued,
served on interested parties, and petition
to be filed within the period ordered by
the court

Not bound by the 1 year limitation Within One (1) year after cause of such ouster,
- If it is to be instituted by the State itself, or the right of the petitioner to hold such office
through the Solicitor General, there is no or position arise
claim of right over a public office - public interest requires that the rights of
- Section 2, Rule 66 categorically provides public office should be determined as
that the Solicitor General must commence speedily as practicable
the action for quo warranto when directed - If they do not do so within a period of 1
by the President of the Philippines, when year, they shall be considered as having
upon complaint or otherwise when the lost their right thereto by abandonment.
Solicitor General has good reason to - It is not proper that the title to public office
believe that any case specified in Section should be subjected to continued
1, Rule 66 on the grounds for filing said uncertainty, and the peoples’ interest
action can be established by proof requires that such right should be
determined as speedily as practicable

Not bound by the 1 year limitation Within One (1) year after cause of such ouster,
- The State is not bound by the statute of or the right of the petitioner to hold such
limitations nor by the laches, acquiescence office or position arise
or unreasonable delay on the part of its - public interest requires that the rights of
officers. public office should be determined as
- Republic could not be faulted for speedily as practicable
questioning the respondent’s qualification - If they do not do so within a period of 1
for office only upon discovery of the cause year, they shall be considered as having
of ouster because respondent cleverly hid lost their right thereto by abandonment.
the fact of non-filing of SALN (Republic v. - It is not proper that the title to public office
Sereno, G.R. No. 237428, 11 May 2018) should be subjected to continued
uncertainty, and the peoples’ interest
requires that such right should be
determined as speedily as practicable
 In the exercise of sound discretion, the Solicitor

General may suspend or turn down the
institution of an action for quo warranto where
there are just and valid reasons
 The Solicitor General is given permissible latitude
within his legal authority in actions
for quo warranto, circumscribed only by the
national interest and the government policy on
the matter at hand
 However, once evidence is found to sufficiently

establish the grounds under Section 1, Rule 66,
then the Solicitor General or public prosecutor
cannot refuse to file the action
 hemust bring the action for quo warranto -
mandatory
 Usurpation generally refers to unauthorized arbitrary

assumption and exercise of power by one without
color of title or who is not entitled by law thereto
 Quo warranto is also a remedy against the usurpation
of a franchise.
 franchise is a government-conferred right or privilege
to engage in a specific business or to exercise
corporate powers
 Quo warranto proceedings under Rule 66 may be

availed of to determine whether a franchisee is in
breach of the legislative franchise specifically
enacted for it by the Congress, as would warrant the
cancellation of the said franchise or the prevention of
its exercise
Examples
 telecommunications competitor failed to construct its
radio system within 10 years from the approval of its
franchise, as mandated by its legislative franchise
(Philippine Long Distance Telephone Co. v. National
Telecommunications Commission, G.R. No. 88404, 18
October 1990)
 Cancellation of Certificate of Public Convenience

 the determination of the right to the exercise of a
franchise, or whether the right to enjoy such privilege
has been forfeited by non-user,
 Quo warranto is specifically available as a remedy if
it is thought that a government corporation has
offended against its corporate charter or misused its
franchise. (Divinagracia v. Consolidated
Broadcasting System, Inc., G.R. No. 162272, 7 April
2009)
RULE 66 – QUO WARRANTO
The determination of the right to the exercise of a

franchise, or whether the right to enjoy such
privilege has been forfeited by non-user, is more
properly the subject of the prerogative writ
of quo warranto, the right to assert which, as a
rule, belongs to the State "upon complaint or
otherwise" (Sections 1, 2 and 3, Rule 66, Rules of
Court),
RULE 66 – QUO WARRANTO
the reason being that the abuse of a franchise is

a public wrong and not a private injury. A
forfeiture of a franchise will have to be declared
in a direct proceeding for the purpose brought by
the State because a franchise is granted by law
and its unlawful exercise is primarily a concern of
Government (Manila International Ports Terminal,
Inc. v. Philippine Ports Authority, G.R. Nos. 196199
& 196252, December 7, 2021, J. Hernando)
 quo warranto proceedings may be brought against an

association which acts as a corporation within the
Philippines without being legally incorporated or without
lawful authority so to act
 However, actions against corporations, or against
persons who usurp an office in a corporation are
governed by the Interim Rules of Procedure Governing
Intra-Corporate Controversies under RA 8799, and not
by Rule 66
Quo Warranto vs Mandamus
Rule 66 Quo Warranto Rule 65 Mandamus

quo warranto is a remedy against a writ of mandamus may be availed of
person who usurps, intrudes into, or when any tribunal, corporation, board,
unlawfully holds or exercises a public officer or person excludes another from
office, position or franchise the use and enjoyment of a right or
office to which another is entitled
quo warranto is the remedy to try the mandamus only lies to enforce clear
right to an office or franchise and to legal duties, not to try disputed titles
oust the holder from its enjoyment
where there is usurpation or intrusion where the respondent, without claiming
into an office, quo warranto is the any right to an office, excludes the
proper remedy petitioner therefrom, the remedy
is mandamus
 The Supreme Court, Court of Appeals and Regional

Trial Courts have original concurrent jurisdiction over
quo warranto proceedings under the Rules of Court,
but the rule on hierarchy of courts must still be strictly
observed
 Ifissued by RTC, scope of enforceability is within the
judicial region
 Direct filing with the SC, as an exception to hierarchy of

courts, when the action questioned the qualification of
no less than a member of the Supreme Court and the
petition was considered of transcendental
importance because the State maintained an interest
on the issue of the legality of the Chief Justice’s
appointment. It also involved one of first impression and
of paramount importance to the public. (Republic v.
Sereno, G.R. No. 237428, 11 May 2018)
 IfRTC rendered judgment, remedy is Rule 41 to CA,

but memorandum instead of Appellant’s Brief (Rule
44, Sec. 10)
Quo Warranto
 Sandiganbayan Jurisdiction - the Sandiganbayan has

exclusive original jurisdiction over petitions for the
issuance of the writs of mandamus, prohibition, certiorari,
habeas corpus, injunctions, and other ancillary writs and
processes in aid of its appellate jurisdiction and over
petitions of similar nature, including quo warranto, arising
or that may arise in cases filed or which may be filed
under Executive Order Nos. 1, 2, 14 and 14-A,
provided, that the jurisdiction over these petitions shall
not be exclusive of the Supreme Court (Section 2 of RA
10660)
 Venue - rules on venue in ordinary civil cases under

Rule 4 will not apply
 if the case is filed with the Regional Trial Court, the
venue shall be in the court exercising jurisdiction over
the territorial area where the respondent or any of the
respondents resides
 unlessthe Solicitor General commences the action,
in which case, the venue shall be in the City of
Manila
 Claim for Damages: may be included in the petition or

if not, an action for damages after a judgment in favor
of the petitioner may be filed within 1 year after the
entry of judgment establishing the petitioner’s right to
the office in question (Rule 66, Sec. 11)
 Allowable splitting of cause of action
 Will not be barred by res judicata
 the court may reduce the period provided by the rules

for filing pleadings and for all other proceedings in the
action at its discretion
 to secure the most expeditious determination of the
matters involved therein, consistent with the rights of
the parties
 The court will determine whether the petitioner’s claim
is well-founded or not
 Republic v. Sereno: Republic’s claim that the

respondent was unlawfully holding the office of the
Chief Justice of the Supreme Court was well-founded
(Republic v. Sereno, G.R. No. 237428, 11 May 2018)
 willful
non-filing of a SALN is an indication of
dishonesty, lack of probity and lack of integrity
 Members of the Judiciary are bound by the
qualifications of honesty, probity, competence, and
integrity
 Republic v. Sereno: Republic’s claim that the respondent

was unlawfully holding the office of the Chief Justice of
the Supreme Court was well-founded (Republic v. Sereno,
G.R. No. 237428, 11 May 2018)
 JBC nomination of Respondent was void, in violation of
JBC’s own rules – it cannot violate its own rules
Should not have considered or nominated

respondent, for failing to file SALN for the covered
years, no substantial compliance
She claimed she was not covered by SALN
requirement albeit her Personal Data Sheet showed
she worked for the government during the covered
periods
 The President’s act of appointment does not

cause to qualify the respondent
The regular members of the JBC are
appointees of the President, including
an ex-officio member, the Secretary of
Justice, who serves as the President’s alter
ego
 When the JBC mistakenly or wrongfully

accepted and nominated the respondent, the
President, through his alter egos in the JBC,
commits the same mistake and the President’s
subsequent act of appointing the respondent
cannot have any curative effect
 Republic v. Sereno: Republic’s claim that the

respondent was unlawfully holding the office of
the Chief Justice of the Supreme Court was
well-founded (Republic v. Sereno, G.R. No.
237428, 11 May 2018)
 Even as the respondent took her “oath of office,”

she remains disqualified
While the respondent putatively took an oath
to defend and support the Constitution and to
obey the laws of the land, she had not been
forthright with the circumstances surrounding
the lacking SALNs
This makes her oath untruthful and altogether
false
 For lack of a Constitutional qualification, the

respondent is ineligible to hold the position of Chief
Justice and is merely holding a colorable right or
title thereto
 the respondent has never attained the status of an
impeachable official and her removal from the
office, other than by impeachment, is justified
 quo warranto at the instance of the State is proper
to oust the respondent from the appointive
position of Chief Justice
 If the court finds for the respondent, the

judgment should simply state that the
respondent is entitled to the office.
 If the court finds for the petitioner and declares
the respondent guilty of usurping, intruding into,
or unlawfully holding or exercising the office,
the court, in the judgment may order:
 (1) the ouster and exclusion of the defendant

from office;
 (2) the recovery of costs by the plaintiff or
relator; and
 (3) the determination of the respective rights in
and to the office, position, right, privilege or
franchise of all the parties to the action as
justice requires
 The remedies available in

a quo warranto judgment do not include
correction or reversal of acts taken under the
ostensible authority of an office or franchise;
 judgment is limited to ouster or forfeiture and
may not be imposed retroactively upon prior
exercise of official or corporate duties
 when a quo warranto petition is granted, ouster

from office is likewise meted, but the Court can
likewise impose upon the public officer additional
penalties such as reimbursement of costs pertaining
to the rightful holder of the public office and such
further judgment determining the respective rights in
and to the public office, position, or franchise of all
the parties to the action as justice requires (Re: Ma.
Cristina Roco Corona, A.M. No. 20-07-10-SC, January
X filed a petition for quo warranto against Y.

Judgment was rendered in favor of X. However, Z
was appointed to the subject position. May X
implement the judgment against Z?
NO. The petition for quo warranto was filed by the

petitioner solely against the respondent Y and not
against the new appointee Z. What was threshed
out before the trial court was the qualification
and right of the petitioner to the contested
position as against the respondent Y, and not
against the new appointee Z. Remedy is to bring
a petition for quo warranto against Z. (Mendoza
v. Allas, G.R. No. 131977, 4 February 1999)
Impeachment and Quo Warranto
 petition for quo warranto may be filed against an

impeachable officer
 the pendency of impeachment proceedings against
the said impeachable officer was not inconsistent
with and would not bar the filing of a petition for quo
warranto against the said impeachable officer
 They are not mutually exclusive and they may

proceed simultaneously
 Their origin, nature and purpose are different. They
are distinct as to: (1) jurisdiction; (2) grounds; (3)
applicable rules pertaining to initiation, filing and
dismissal; and (4) limitations
 Although both may result in the ouster of the public

official, they differ in that impeachment proceedings
are political in nature, while an action
for quo warranto is judicial, a proceeding
traditionally lodged in the courts
 Impeachment is a proceeding exercised by the

legislative, as representatives of the sovereign, to
vindicate the breach of the trust reposed by the
people in the hands of the public officer by
determining the public officer’s fitness to stay in the
office
 President,the Vice President, Members of the

Supreme Court and the Constitutional
Commissions, and the Ombudsman may be
removed from office, on impeachment for, and
conviction of culpable violation of the
Constitution, treason, bribery, graft and corruption,
other high crimes, or betrayal of public trust
 For prosecution of impeachable offense

 conviction of culpable violation of the
Constitution, treason, bribery, graft and
corruption, other high crimes, or betrayal of
public trust
 May – not the only way to remove
impeachable officer – permissive, not
mandatory
 an action for quo warranto, involves a judicial

determination of the eligibility or validity of the
election or appointment of a public official
based on predetermined rules
 The crux of the controversy is the
determination of whether or not the
respondent legally holds the Chief Justice
position to be considered as an impeachable
officer in the first place
 Impeachment necessarily presupposes that the

respondent legally holds the public office and
thus, is an impeachable officer
 the only issue being whether or not she
committed impeachable offenses to warrant
her removal from office.
a conviction for the charges of impeachable

offenses shall result in the removal of the
respondent from the public office that she is
legally holding
 It
is not legally possible to impeach or remove a
person from an office that she, in the first place,
does not and cannot legally hold or occupy
 In the quo warranto case, the respondent is not

being prosecuted for such impeachable
offenses enumerated in the Articles of
Impeachment.
 Respondent’s title to hold a public office is
the issue in quo warranto proceedings.
 respondent in a quo warranto proceeding
shall be adjudged to cease from holding a
public office, which she is ineligible to hold
 There is no forum shopping by pursuing both at the

same time
 Litis pendentia is not present.
 A final decision in one will not strictly constitute as
res judicata to the other.
 A judgment in a quo warranto case determines the

respondent’s constitutional or legal authority to
perform any act in, or exercise any function of the
office to which she lays claim
 a judgment in an impeachment proceeding
pertains to the respondent’s fitness for public office
Elective Positions – Quo Warranto
 Municipal Trial Courts, Metropolitan Trial Courts,

Municipal Trial Courts in Cities, and Municipal
Circuit Trial Courts - exclusive original jurisdiction
over all election contests involving elective
barangay officials
 RTC – exclusive original jurisdiction over those
contesting the election of any municipal officer
 COMELEC - exclusive original jurisdiction over

quo warranto proceedings to contest the
election of any regional, provincial or city
officer and any member of Congress, before
said member of Congress takes his oath of
office after his proclamation
 COMELEC Appellate: From any decision of

the trial court, the aggrieved party may be
appeal to the COMELEC within 5 days after
promulgation of the decision
 If it is the COMELEC that rendered the
decision in a quo warranto case, then the
remedy is to file a petition for certiorari under
Rule 64 in relation to Rule 65 with the Supreme
Court
 HRET/SET – once elective official of Congress

takes his oath, pursuant to Constitution
providing that HRET/SET shall be the sole judge
of all contests relating to the election, returns,
and qualifications of their respective Members
 warranto may be filed by any voter

 within 10 days after the proclamation of the
results of the election, on the ground of:
 (1) ineligibility; or
 (2) disloyalty to the Republic of the Philippines
 The 10-day period within which to file a petition

for quo warranto shall be suspended if there is a
pending pre-proclamation controversy
involving the validity of the proclamation
 The winning party who was declared elected in the

judgment in the quo warranto case shall have the right
to assume the office as soon as the judgment becomes
final
 The court may adjudicate damages and attorney’s
fees as it may deem just and as established by the
evidence if the aggrieved party has included such
claims in his pleadings
 Decision becomes final 5 days after its promulgation
and no motion for reconsideration shall be entertained
 A pre-proclamation controversy may be raised

by any candidate, any registered political party
or coalition of political parties before the board
of canvassers or directly with the COMELEC, in
relation to:
 (1) any question pertaining to or affecting the
proceedings of the board of canvassers;
 (2) delayed, lost or destroyed election returns;
 (3) material defects in the election returns;

 (4) election returns that appear to be tampered
with or falsified; or
 (5) discrepancies in election return
Elective Positions – Quo Warranto,
Case
 Petition with HRET for Quo Warranto (citizenship requirement)
was sought to be dismissed for being moot, since
Congressman X’s 2016-2019 term has expired, although he
was re-elected in 2019.
 the issue of eligibility to sit as a Member of the House on
the ground of her citizenship is not mooted by the
expiration of her 2016 term, nor by the passing of the 2019
elections. He was re-elected in 2019 as Representative of
Nueva Ecija's Third District, hence, continues to serve as an
incumbent Member of the House to this day.
Case
 should the Court find that she is ineligible for not

being a Philippine citizen, she must be removed
from office.
 the issue of her citizenship remains to be a
justiciable controversy, hence, the case is not
rendered moot and academic (Piccio v. House of
Representatives Electoral Tribunal, G.R. No. 248985,
October 5, 2021)
Case
 the judgments of the HRET are, as a rule, beyond
judicial interference, and the only exception is in the
exercise of the Court's so-called extraordinary
jurisdiction upon a determination that the Tribunal's
decision was rendered without or in excess of its
jurisdiction.
 the burden to prove the ineligibility of a duly elected
public official is upon the person asserting such
ineligibility
Case
 A petitioner in a quo warranto case must first prove the
very fact of disqualification of the candidate by
substantial evidence
 Once the petitioner makes a prima facie case, the
burden of evidence shifts to the candidate who should
now defend himself or herself with countervailing
evidence
 A taint of doubt is not enough to discharge the
burden. (Piccio v. House of Representatives Electoral
Tribunal, G.R. No. 248985, October 5, 2021)
Rule 67 - Expropriation
 Eminent domain is the inherent right of the State (and of those

entities to which the power has been lawfully delegated) to
condemn private property to public use upon payment of just
compensation
 Expropriation is the procedure for enforcing the right of eminent
domain
 Requisites of a valid expropriation are:
 (1) taking of private property for public use;
 (2) payment of just compensation; and
 (3) due process of law is observed in the taking of the property
 Expropriation does not automatically mean an acquisition of private

property by way of sale.
 may also be an acquisition of an easement of right of way such as a
real property that may, through expropriation, be subjected to an
easement of right of way
 Property already owned by the State may still be the subject of
expropriation when it is under the possession of private individuals under
a just title
 Republic shall file the complaint against the private persons
occupying the property
 public property already devoted to public use can no longer be
taken for another public use
 There are 2 stages in every action for expropriation

 The first phase determines the propriety of the action; it determines
the authority of the plaintiff to exercise the power of eminent domain
and the propriety of its exercise in the context of the facts involved in
the suit
 The second phase involves the determination by the court of the just
compensation for the property sought to be taken, with the
assistance of not more than 3 commissioners
 Before expropriation is filed, an offer to purchase is first made
 When denied – institute expropriation
 Jurisdiction
 If starting with First Phase, RTC – incapable of pecuniary estimation –
determination of whether expropriation is proper
 suitdoes not involve the recovery of a sum of money; rather, it deals
with the exercise by the government of its authority and right to take
property for public use (Bardillon v. Barangay Masili of Calamba,
Laguna, G.R. No. 146886, 30 April 2003)
 the courts determine the authority of the government entity, the
necessity of the expropriation, and the observance of due process. The
subject of an expropriation suit is the government’s exercise of eminent
domain, a matter that is incapable of pecuniary estimation (Barangay
San Roque v. Heirs of Pastor, G.R. No. 138896, 20 June 2000)
Notably, some cases mentioned that condemnation is a real action,

however, the issue therein is not jurisdiction in expropriation, and may be said
to be only obiter dictum
 Ruby Shelter Builders and Realty Development Corporation v. Formaran III,
the Supreme Court resolved the issue on the correct computation of
docket fees in an action for annulment of Deed of Sale, which was
actually one for recovery of title or possession of real property, and thus, a
real action (G.R. No. 175914, 10 February 2009)
 Bank of the Philippine Islands v. Hontanosas, Jr., issue involved the proper
computation of docket fees in an action for declaration of the nullity of a
contract of loan and its accompanying continuing surety agreement, and
the real estate and chattel mortgages (G.R. No. 157163, 25 June 2014)
 Barido v. Nonato, involved the partition of property acquired during a

void marriage. In this case, the petitioner and the respondent’s
marriage was declared void on the ground of psychological incapacity
(G.R. No. 176492, 20 October 2014)
 In all those cases, SC mentioned the following:
 a real action is one affecting title to real property or for the recovery of
possession of, or for partition or condemnation of, or foreclosure of a
mortgage, on a real property
 However, this provision was based on the 1964 Rules of Court, which
stated categorically that condemnation was a real action, a
provision no longer found in the present rules
 Jurisdiction
 If action starts with the second phase such as in Inverse Condemnation,
then jurisdiction depends on the subject matter, if for just compensation of
real property, then it is a real action, and jurisdiction depends on the
assessed value
 if the subject involves an interest over real property, then it is a real action:
assessed value not exceeding Php400,000.00 is with inferior courts, and
when exceeding Php400,000.00, jurisdiction is with RTC (RA 11576)
 Inverse Condemnation - there is taking of property by the

expropriating authority but without institution of an expropriation
case, and as a result, the landowner is constrained to file a case
(inverse condemnation), so that the landowner will be paid just
compensation for the property taken
 Issue of the propriety of expropriation will no longer be
determined because of equitable estoppel, public policy and
necessity
 contemplates a situation where structures were already built on
the land of a landowner who did not immediately question the
propriety of such taking, and the structures already served the
public needs
 Inverse Condemnation
 The second phase, by its nature, is a real action, involving the
interest of the landowner over the property, particularly, the
payment of just compensation therefor, which would later lead to
a transfer of title in favor of the expropriating authority or the State
(National Power Corporation v. Spouses Saludares, G.R. No. 189127,
25 April 2012; National Transmission Corporation v. Oroville
Development Corporation, G.R. No. 223366, 1 August 2017;
National Power Corporation v. Dianalan, G.R. Nos. 212059-60, 22
September 2020)
The expropriating authority, a public utility corporation

endowed with the power of eminent domain, took the property
of the landowner for public use without any negotiated sale
and without instituting an expropriation case for such taking.
This constrained the landowner to file an ejectment suit against
the expropriating authority, although the works on the property
were already done.
Should the ejectment suit prosper?

NO. The ejectment case would not prosper because of: (1) equitable
estoppel since the landowner was estopped from questioning the
propriety of expropriation, not having filed the case earlier, before the
works on its property were done; (2) public policy and public
necessity, since the service being rendered by the public utility on the
subject property should not be interfered with. (National Transmission
Corporation v. Bermuda Development Corporation, G.R. No. 214782,
3 April 2019, )
What should the trial court do?

The trial court may:

 (1) dismiss the case without prejudice to the landowner filing the proper
action for recovery of just compensation and consequential damages;
 (2) dismiss the case and direct the public utility corporation to institute the
proper expropriation or condemnation proceedings and to pay the just
compensation and consequential damages assessed therein; or
 (3) continue with the case as if it were an expropriation case and
determine the just compensation and consequential damages pursuant to
Rule 67, if the ejectment court has jurisdiction over the value of the subject
land (National Transmission Corporation v. Bermuda Development
Corporation, G.R. No. 214782, 3 April 2019, )
First Phase
 instituted by the filing of a verified complaint, particularly describing the real
or personal property sought to be expropriated
 Defendants: every person having an interest at law in the land subject of
expropriation
 all persons owning or claiming to own, or occupying, any part of the
property sought to be expropriated, or interest therein, shall be joined as
defendants
 Illegal settler, while a possessor, has no legal interest
 Failure to implead the owner: remedy is to implead, not dismissal
 If uncertain ownership, court to determine provisionally the owner in the
second phase, for purposes of determining to whom just compensation
shall be paid
First Phase
 If defendant has no objection - may file and serve a notice of
appearance and a manifestation to that effect, specifically
designating or identifying the property in which he claims to be
interested, within the time stated in the summon
 Defendant will no longer participate in first phase, but will
participate in second phase
 If defendant has objections – raise in the Answer and not motion to
dismiss
 rules expressly prohibit the inclusion of counterclaim, cross-claim
or third-party complaints in the answer or any subsequent
pleading
 Failure to file answer, may declare defendant in default, upon

motion, in first phase
 Defendant can still participate in the second phase
The land sought to be expropriated ceased to be for public use. May
the Expropriation Authority demand the case be automatically
dismissed?
 State must first file a motion to withdraw, and the grant or denial of
any Motion to Withdraw in an expropriation proceeding will always
be subject to judicial discretion.
 In National Power Corporation v. Court of Appeals, property ceased to

be for public use, and withdrawal was allowed, subject to the
landowner’s right to recover damages, occasioned by the institution of
the expropriation case. (G.R. No. 106804, 12 August 2004)
 damages may also be claimed due to the deprivation of right to use
property for many years when the case was pending. (Metropolitan
Water District v. De los Angeles, 55 Phil. 776 (1931))
The plaintiff sought to withdraw or dismiss the complaint for expropriation, after
the order of expropriation and just compensation orders were final, claiming
that there were just and equitable grounds to allow the discontinuance of the
expropriation proceedings, in that the intended public use was rendered
nugatory by the amount of just compensation fixed by the court, which was
beyond the means of the intended beneficiaries of the socialized housing
project.
 motion to dismiss the expropriation case filed after the order of expropriation
and the order determining just compensation were already issued by the
court was denied because the defendant had already been prejudiced by
the expropriation case.
 plaintiff cannot be permitted to institute expropriation proceedings against

the defendant only to abandon it later when it finds the amount of just
compensation unacceptable
 It is arbitrary and capricious for a government agency to initiate
expropriation proceedings, seize a person’s property, allow the judgment
of the court to become final and executory and then refuse to pay on the
ground that there are no appropriations for the property earlier taken and
profitably used.(National Housing Authority v. Heirs of Guivelondo, G.R. No.
154411, 19 June 2013)
First Phase
 It ends with an order, either: (1) dismissing the action; or (2) declaring
that the plaintiff has a lawful right to take the property sought to be
condemned, for the public use or purpose described in the complaint,
upon the payment of just compensation to be determined as of the
date of the filing of the complaint
Order of dismissal and of expropriation are both final, leaving nothing
more to be done by the court on the merits of the first phase because
the said order resolves the question of whether or not the plaintiff has
properly and legally exercised its power of eminent domain
 Order of dismissal and expropriation
 Remedy is appeal, and not to file a certiorari (PNOC Alternative Fuels Corp. v.
National Grid Corporation of the Philippines, G.R. No. 224936, September 4,
2019, )
 May be by Rule 45 to SC, if raising only a pure question of law
 Example: raises the argument that the expropriation of the subject property
by respondent NGCP is invalid because such exercise of eminent domain
was neither done directly by Congress nor pursuant to a specific grant of
authority. This is legal in nature. The Court will be able to decide on the
validity of the Order of Expropriation by merely looking at the applicable
law and jurisprudence on eminent domain, as well as the law granting
respondent NGCP the right of eminent domain, i.e., RA 9511. (PNOC
Alternative Fuels Corp. v. National Grid Corporation of the Philippines, G.R.
No. 224936, [September 4, 2019, )
First Phase
Order of dismissal and of expropriation
 If no appeal is taken, the order becomes final, the authority
to expropriate and the public use of the property can no
longer be questioned
 Such appeal, however, shall not prevent the court from
determining the just compensation to be paid (PNOC
Alternative Fuels Corp. v. National Grid Corporation of the
Philippines, G.R. No. 224936, September 4, 2019, )
 Right to immediate possession of the subject property (writ of possession):

 that upon the filing of the complaint or any time thereafter
 after due notice to the defendant
 Deposit 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
 if personal property is involved, its value shall be provisionally
ascertained and the amount to be deposited shall be promptly fixed by
the court
 foregoing rule does not apply to the immediate possession of the premises
in relation to national government projects as a different basis of amount to
be deposited is required in such case
 Second Phase
 General Rule: the court shall appoint not more than 3 competent and
disinterested persons as commissioners to ascertain and report to the court the
just compensation for the property sought to be taken
 Exception: Inverse condemnation, appointment is not mandatory
 The procedure for the mandatory appointment of commissioners is waived
when the government itself initially violates procedural requirements
 While not mandatory in a case instituted by the landowner for just
compensation or in inverse condemnation, the appointment of
commissioners to aid in determining just compensation pursuant to Rule 67
may still be done if the parties agree to it or do not object to the same
Second Phase
 Just compensation - the fair and full equivalent of the loss that the owner of
the thing expropriated has to suffer by reason of the expropriation or of the
property taken from its owner by the expropriator
 measure is not the taker’s gain but the owner’s loss
 the parties may present evidence before the commissioners, who shall be
authorized to administer oaths on hearings before them
 opportunity to present evidence before the commissioners is part of due
process
 the commissioners may consider several factors existing at the time the
taking was made by the government to determine the fair market value of
the propert
Second Phase
 The commissioners shall then assess the consequential damages to
the property not taken and deduct from such consequential
damages the consequential benefits to be derived by the owner from
the public use or purpose of the property taken, the operation of its
franchise by the corporation or the carrying on of the business of the
corporation or person taking the property
 In no case shall the consequential benefits exceed the consequential
damages assessed, or the owner be deprived of the actual value of
his property so taken
 It is not required that the commissioners’ report be unanimously
agreed upon them
Expropriation
 Consequential damages - may be awarded to the owner if, as a result of

the expropriation, the remaining portion not so expropriated suffers from
an impairment or decrease in value. If the entire property is taken, and
there is no remaining portion, consequential damages is not proper.
 Capital Gains Tax may not be awarded in the form of consequential
damages. Transfer of property through expropriation is a sale or exchange
and the profit from the transaction constitutes capital gain. Sine CGT is a
tax on passive income, it is the seller who is liable to shoulder the tax.
 However, courts are not precluded from considering the value of CGT
and other transfer taxes in determining the amount of just Compensation
Expropriation
 Since just compensation requires that real, substantial, full and ample
equivalent be given for the property taken, the loss incurred by the
affected owner necessarily includes all incidental costs to facilitate the
transfer of the expropriated property to the expropriating
authority, including the CGT, other taxes and fees due on the forced sale.
 These costs must be taken into consideration in determining just
compensation in the same way these costs are factored into the selling
price of real property in an arm's length transaction. (Republic v. Spouses
Bunsay, G.R. No. 205473, December 10, 2019)
Expropriation
 The sheer fact that there is a remaining portion of real

property after the expropriation is not enough, by and of
itself, to be basis for the award of consequential damages.
 it must still be proven by sufficient evidence that the
remaining portion suffers from an impairment or decrease in
value (Republic v. San Miguel Vda. De Ramos, G.R. No.
211576, February 19, 2020)
Second Phase
 The court may, after hearing:
 (1) accept the report and render judgment in accordance therewith or;
 (2) for cause shown, recommit the report to the commissioners for further
report of facts;
 (3) set aside the report and appoint new commissioners; or
 (4) accept the report in part and reject it in part; and
 (5) make such order or render such judgment as shall secure to the
plaintiff of the property essential to the exercise of his right of
expropriation, and to the defendant just compensation for the property
given
 Second Phase
 The court may disregard the findings of commissioners
and substitute its own estimate of the value, for valid
reasons, such as when:
 (1) the commissioners applied illegal principles to the
evidence submitted to them;
 (2) the commissioners disregarded a clear
preponderance of evidence; or
 (3) the amount allowed is either grossly inadequate or
excessive
 court may consider the commissioners’ report but it must make its own
judicial determination in coming up with the just compensation and
must not only blindly adopt the said report
 determination of just compensation in expropriation proceedings is
essentially a judicial prerogative, where the court is only aided by the
appointed commissioners, whose appointment is mandatory
 Just compensation is ascertained as of the time of the taking, which
usually coincides with the commencement of the expropriation
proceedings
 if the institution of the action precedes entry into the property, then the
just compensation is to be ascertained as of the time of the filing of the
complaint
 the requisites of taking

 (1) the expropriator must enter a private property;
 (2) the entrance into private property must be for more than a
momentary period;
 (3) the entry into the property should be under warrant or color of legal
authority;
 (4) the property must be devoted to a public use or otherwise informally
appropriated or injuriously affected; and
 (5) the utilization of the property for public use must be in such a way as
to oust the owner and deprive him of all beneficial enjoyment of the
property (Republic v. Vda. de Castellvi, G.R. No. L-20620, 15 August 1974)
 Exception: NPC v. Heirs of Sangkay

 Taking was surreptitious (underground tunnel)
 expropriating authority employed stealth instead of complying with
the legal process of expropriation
 the Supreme Court explained that to reckon the value of just
compensation from the time of taking would not be just, for it would
compound the gross unfairness already caused to the owners by
the expropriating authority’s entering without the intention of
formally expropriating the land, and without the prior knowledge
and consent of the property owners
 Exception: NPC v. Heirs of Sangkay

 As a measure of simple justice and ordinary fairness to
them, reckoning just compensation on the value at the
time the owners commenced these inverse
condemnation proceedings was found to be entirely
warranted (NPC v,. Heirs of Sangkay, G.R. No. 165828,
24 August 2011)
 Second Phase
 ends with an order fixing the amount to be paid to the landowner
 Final, finally disposes of the second stage of the suit,
 the remedy to reverse or amend such order is appeal
 In case of undue delay in the payment of just compensation, an award
of legal interest on the amount due may be proper.
 Just compensation means not only the correct determination of the
amount due to the property owner but also payment to him of the
amount due within a reasonable time from the taking
 Exemplary damages are appropriate when it is shown that the
government misused its power of eminent domain
LGU filed expropriation case. After order of expropriation and order of

just compensation became final, LGU sought to withdraw complaint
as it had no ordinance appropriating payment for just compensation.
 Land reversion back to private landowner not allowed – decision is
final and executory, and only reason to revert back is if land is not
to be used for public purpose (Mactan-Cebu International Airport
Authority v. Lozada, Sr., G.R. No. 176625, 25 February 2010)
 Fery ruling abandoned - was not decided pursuant to our now
sacredly held constitutional right that private property shall not
be taken for public use without just compensation
 Cannot be subject of execution of judgment - government funds and

properties may not be seized under writs of execution or garnishment to
satisfy judgments, based on obvious consideration of public policy
 Disbursements of public funds must be covered by the corresponding
appropriation as required by law
 Mandamus to compel to issue ordinance not proper, as there is another
plain, speedy adequate remedy
 seek relief with the COA, which must act upon it within 60 days
 If denied, Supreme Court on Certiorari (Rule 64) (Star Special
Watchman & Detective Agency, Inc., G.R. No. 181792, 21 April 2014)
RA 10752 – The Right-Of-Way Act
 Repealed RA 8974
 refers to all national government infrastructure projects and its
public service facilities, engineering works and service contracts,
including projects undertaken by government-owned and
controlled corporations, all projects covered by Republic Act No.
6957 (“R.A. 6957”), as amended by Republic Act No. 7718,
otherwise known as the Build-Operate-and-Transfer Law, and other
related and necessary activities, such as site acquisition, supply or
installation of equipment and materials, implementation,
construction, completion, operation, maintenance, improvement,
repair and rehabilitation, regardless of the source of funding
Projects include, but are not limited to:

 Highways, including expressways, roads, bridges, interchanges,
overpasses, tunnels, viaducts and related facilities;
 Railways and mass transit facilities;
 Port infrastructure, like piers, wharves, quays, storage handling and ferry
services;
 Airports and air navigation facilities;
 Power generation, transmission and distribution facilities;
 Radio/television broadcasting and telecommunications infrastructure;
 Information technology infrastructure;
 Irrigation, flood control and drainage systems;
Projects include, but are not limited to:

 Water and debris retention structures and dams;
 Water supply, sanitation, sewerage and waste management
facilities;
 Land reclamation, dredging and development;
 Industrial and tourism estates;
 Government school buildings, hospitals, clinics and other buildings
and housing projects;
 Public markets and slaughterhouses; and
 Other similar or related infrastructure works and services of the
national government.
Acquisition of properties under Commonwealth Act No. 141

 one of the reservations and conditions under the Original Certificate of
Title of land granted by free patent is that the said land is subject to all
conditions and public easements and servitudes recognized and
prescribed by law, especially those mentioned in Sections 109, 110, 111,
112, 113 and 114 of Commonwealth Act No. 141, as amended
 Right-of-way strip - lands granted by patent shall be subject to a right-of-
way strip not exceeding 60 meters in width for public highways, irrigation
ditches, aqueducts, and other similar works of the government or any
public enterprise, free of charge, except only for the value of the
improvements existing thereon that may be affected
Acquisition of properties under Commonwealth Act No. 141

 If the government decides to exercise its right to use the right-of-
way strip reserved for public use within the land acquired under
Commonwealth Act No. 141, the owner is required to execute a
quitclaim
 implementing agency shall then take possession of the property
affected by the right-of-way without any compensation to the
owner for the land,
 but shall pay the owner the cost of the damages for the
improvements within that land equivalent to their replacement
cost
 If the owner refuses or is unable to issue a quitclaim, the concerned

government officials responsible for the implementation of projects
are authorized to immediately take possession of the portion of the
property subject of the lien, as the need arises and upon due
notice to the owner
Donation
 needed portion or whole of the affected property, i.e., lots with or
without improvements, may be donated by the property owner
concerned, which may be a private individual, corporation, a
government agency or corporation
 deed of donation, simple and unconditional
 shall contain clauses to the effect that the donation is made not to
defraud the donor’s creditors, and that the donor has, if necessary,
reserved for himself enough property for his family’s subsistence,
sustenance and support in case the donor is a private individual.
 To prevent revocation of donation
 The donation must be accepted by the implementing agency, which
shall be indicated in the deed of donation.
 implementing agency shall then pay the documentary stamp tax,
transfer tax and registration fees
 donor shall pay any unpaid real property tax, if any
Exchange or Barter
 By the contract of barter or exchange, one of the
parties binds himself to give a thing in consideration of
the other’s promise to give another thing
 Instead of being paid the money value of his property,
the owner of a property needed for a right-of-way of a
national government project may request the
government to exchange or barter an old abandoned
government road or other government property near
the project with his said property.
Exchange or Barter
 request the government to exchange or barter an old abandoned
government road or other government property near the project with his
said property. The implementing agency may favorably consider this mode,
subject to the provisions of relevant laws and the following conditions:
 (1) the exchange shall be done on a “value-for-value” basis, i.e., the
properties being exchanged are equivalent in market value or price;
 (2) If the government property to be exchanged with the private property
was originally donated by a previous owner, the donation must be verified
to ensure that there is no condition which prohibits the government from
disposing of it to other private persons.
 If the said government property was originally acquired through sale, the
previous owner shall have the first priority to reacquire the property if
required by law or by the contract or deed of sale
Exchange or Barter
 (3) Owners of property whose land abut the said
abandoned government road or other property shall
not be deprived of access, i.e., egress or ingress, to the
new highway to be built, if any; and
 (4) The private property owner and the implementing
agency which are parties to the exchange or barter
agreement shall be subject to applicable capital gains
tax and documentary stamp tax, in accordance with
BIR rules and regulations
Easement of right-of-way
 If the portion of a lot needed is minimal, such that the expenses for
surveying or segregating that portion from the main lot would be very
much more than the value of the part of the lot needed
 voluntary easement, which is established by the will of the parties
 Payment: value of that portion of the lot based on the existing zonal
valuation declared by the BIR, the replacement cost of any
improvements and structures on the land affected by the right-of-way.
 The implementing agency may engage the services of an

independent property appraiser to determine the amount of
the easement to be paid
 Entry by the implementing agency to the acquired property
may be effected upon full payment of the value of the
property.
 The implementing agency shall cause the registration of all right-of-way
easement agreements with the Register of Deeds concerned within 10
days from the date of their execution
Acquisition of subsurface right-of-way

 When it is necessary to build, construct, or install on the
subsurface or subterranean portion of private and
government lands owned, occupied, or leased by other
persons, such infrastructure as subways, tunnels, underpasses,
waterways, floodways, or utility facilities as part of the
government’s infrastructure and development project
 government or any of its authorized representatives shall

not be prevented from entry into and use of such private
and government lands by surface owners or occupants, if
such entry and use are made more than 50 meters from
the surface
 The implementing agency shall duly consult with and
notify the affected property owners of any acquisition of
subsurface right-of-way needed for the infrastructure
projects
 Acquisition of subsurface right-of-way

 If the national government project involves underground works
within a depth of 50 meters from the surface, the implementing
agency may undertake the mode of acquisition in the following
order:
 Negotiate with the property owner a perpetual easement of
right-of-way for the subterranean portions of his property
required by the project. The easement price herein shall be 20%
of the market price of the land; and
 Offer to acquire from the property owner the affected portion
of the land, including the affected structures, improvements,
crops and trees therein
 To assist the implementing agency in determining the appropriate

price offer, the implementing agency may engage the services of
a government financial institution or an independent property
appraiser
 For acquisition of subsurface right-of-way, the rules for negotiated
sale shall be followed and applied
Negotiated Sale
 the compensation price to be offered by the implementing agency to the
landowner shall consist of the sum of the:
 (1) current market value of the land;
 (2) replacement cost of structures and improvements therein; and
 that necessary to replace the affected structure or improvement with a
similar asset based on current market prices of materials, equipment,
labor, contractors profit and overhead, and all other attendant costs
associated with the acquisition and installation of a similar asset in
place of the affected asset
 If the affected structure has been damaged, then the replacement
cost should be based on the pre-damaged condition of that structure
 (3) current market value of crops and trees therein

 To determine the appropriate price offer, the implementing
agency may engage the services of a government financial
institution with adequate experience in property appraisal, or an
independent property appraiser accredited by the Bangko Sentral
ng Pilipinas (“BSP”) or a professional association of appraisers
recognized by the BSP
Negotiated Sale
 The replacement cost shall also apply to all owners of structures and
improvements who do not have legally recognized rights to the land,
provided that the said owners must:
 (1) be Filipino citizens;
 (2) not own any real property or any other housing facility, whether in an
urban or rural area;
 (3) not be a professional squatter or a member of a squatting syndicate as
defined under R.A. 7279 or the Urban Development and Housing Act of
1992; and
 (4) not occupy an existing government right-of-way. In such a case, the
owner and occupant of the structure or improvement must show proof of
ownership thereof, such as a certification from the barangay concerned
 Professional squatters - individuals or groups who occupy lands without the

express consent of the landowner and who have sufficient income for
legitimate housing, as identified by the proper Local Inter-Agency Committee
with the assistance of the Urban Poor Affairs Office.
 also applies to persons who have previously been awarded homelots or
housing units by the government but who sold, leased or transferred the
same to settle illegally in the same place or in another urban area, and non-
bona fide occupants and intruders of lands reserved for socialized housing.
 shall not apply to individuals or groups who simply rent land and housing
from professional squatters or squatting syndicates
 Squatter syndicates - to groups of persons engaged in the business of squatter
housing for profit or gain
Negotiated Sale
 property owner is given 30 days within which to decide whether or
not to accept the price offer
 Should the landowner reject the offer, or should the period lapse
without there being any acceptance, expropriation proceedings
shall be commenced
 If the landowner agrees to a negotiated sale, a deed of absolute
sale shall be executed by the implementing agency and the
property owner, after the latter submits to the implementing
agency the Transfer Certificate of Title, Tax Declaration, Real
Property Tax Certificate, and other documents necessary to
transfer the title to the Republic of the Philippines
 In case of sale of land with structures and other improvements,

the Deed of Sale shall provide a stipulation allowing the
implementing agency or its authorized representatives to
demolish and remove them
 shall also include a stipulation on the right of the implementing
agency to immediately enter the property and implement the
project
 The implementing agency shall cause the annotation of the
deed of absolute sale on the Transfer Certificate of Title
Negotiated Sale
 Upon execution of a deed of sale, the implementing agency
is required by law to pay the property owner the following
amounts of initial payments:
 (1) 50% of the negotiated price of the affected land,
exclusive of taxes remitted to the LGU concerned; and
 (2) 70% of the negotiated price of the affected structures,
improvements, crops and trees, exclusive of unpaid taxes
remitted to the LGU concerned
 Balance to be paid as follows:

 (1) Where the property owner owns both the land and
structures/improvements, once the land is already completely cleared of
structures, improvements, crops and trees, the implementing agency shall
pay the property owner the remaining 50% of the negotiated price of the
affected land, and 30% of the affected structures, improvements, crops
and trees, exclusive of unpaid taxes remitted to the LGU concerned, at the
time of the transfer of title in the name of the Republic of the Philippines, in
cases where the land is wholly affected, or at the time of the annotation of
a deed of sale on the title, in cases where the land is partially affected.
Negotiated Sale
 (2) Where the property owner only owns the land, the
implementing agency shall pay the property owner the remaining
50% of the negotiated price of the affected land, exclusive of
unpaid taxes remitted to the LGU concerned, at the time of the
transfer of title in the name of the Republic of the Philippines in
cases where the land is wholly affected, or at the time of the
annotation of a deed of sale on the title, in cases where the land is
partially affected
Negotiated Sale
 (3) Where the property owner only owns the structures or improvements,
the implementing agency shall pay the property owner the remaining 30%
of the affected structures, improvements, crops and trees, exclusive of
unpaid taxes remitted to the LGU concerned, immediately after the
implementing agency has certified that the land is already completely
cleared of structures, improvements, corps and trees, at the time of the
transfer of title in the name of the Republic of the Philippines in cases where
the land is wholly affected, or at the time of the annotation of a deed of
sale on the title, in cases where the land is partially affected
Negotiated Sale
 if the land is untitled, as an additional condition to payment, the land
owner should present:
 (1) a tax declaration showing his and his predecessors’ open and
continuous possession of the property for at least 30 years;
 (2) certification from the Department of Environment and Natural Resources
that the land is alienable and disposable; and
 (3) other documents that may show proof of ownership

 implementing agency shall pay, for the account of the seller, the
capital gains tax, as well as the documentary stamp tax, transfer
tax and registration fees, while the owner shall pay any unpaid real
property tax
 If requested by the property owner, the implementing agency
shall remit to the LGU concerned the amount corresponding to
any unpaid real property tax, subject to the deduction of this
amount from the total negotiated price, provided that said
amount is not more than the negotiated price.
Expropriation
 If no negotiated sale takes place, a complaint for expropriation may be
filed
 All other persons owning, occupying, or claiming to own the property, or
who claim to have lawful interest in the property to be condemned should
be included as defendants in the complaint for expropriation
 where the property owner cannot be found, is unknown, or is deceased
but without his estate having been settled, or where there are conflicting
claims, the amount due shall still be deposited with the court, who will then
determine who is entitled to the same
 If a known owner is not joined as defendant, he may intervene in the
proceeding
Expropriation
 Immediate Possession of premises during pendency of case, the
implementing agency shall immediately deposit to the court in
favor of the owner the amount equivalent to the sum of:
 (1) 100% of the value of the land based on the current relevant
zonal valuation of the BIR issued not more than 3 years prior to the
filing of the expropriation complaint
 where there is no land classification, the city or municipal
assessor is mandated, within a period of 60 days from the date
of filing of the expropriation case, to come up with the required
land classification and the corresponding declaration of real
property and improvement for the area
 where there is no zonal valuation, or where the current zonal valuation

has been in force for more than 3 years, the BIR is mandated, within a
period of 60 days from the date of filing of the expropriation case, to
conduct a zonal valuation of the area, based on the land classification
done by the city or municipal assessor
 Exception: completion of a government infrastructure project is of
utmost urgency and importance, and there is no land classification or
no existing zonal valuation of the area concerned or the zonal
valuation has been in force for more than 3 years
 the implementing agency shall use the BIR zonal value and land
classification of similar lands within the adjacent vicinity as the basis
for the valuation
 (2) the replacement cost at current market value of the improvements and
structures as determined by: (a) the implementing agency; (b) a government
financial institution with adequate experience in property appraisal; and (c)
an independent property appraiser accredited by the BSP
 (3) The current market value of crops and trees located within the property as
determined by a government financial institution or an independent property
appraiser
 The foregoing deposit shall be made upon the filing of the complaint or at any
time thereafter and after due notice is given to the defendant
 Once the deposit is made, the court shall immediately issue to the
implementing agency a writ of possession or an order to take possession of
the property and start the implementation of the project
 SECTION 7. Standards for the Assessment of the Value of the

Property Subject to Negotiated Sale. – In order to facilitate the
determination of the market value of the property, the following
relevant standards shall be observed:
 (a) The classification and use for which the property is suited;
 (b) The development cost for improving the land,
 (c) The value declared by the owners;
 (d) The current selling price of similar lands in the vicinity,
 (e) The reasonable disturbance compensation for the removal and

demolition of certain improvements on the land and for the value
of improvements thereon;
 (f) The size, shape or location, tax declaration and zonal valuation
of the land;
 (g) The price of the land as manifested in the ocular findings, oral
as well as documentary evidence presented; and
 (h) Such facts and events as to enable the affected property
owners to have sufficient funds to acquire similarly situated lands of
approximate areas as those required from them by the
government, and thereby rehabilitate themselves as early as
possible.
 R.A. 10752 does not take away from the courts the power to judicially
determine the amount of just compensation.
 It merely provides relevant standards or guidelines in order to facilitate
the determination of just compensation, and sets the minimum price of
the property as provisional value, to immediately recompense the
landowner with the same degree of speed as the taking of property,
which reconciles the inherent unease attending expropriation
proceedings with a position of fundamental equity
 The court shall release the amount deposited to the owner upon
presentation of sufficient proof of ownership.
 The implementing agency shall be liable for interest when there is delay
in full payment of the just compensation, which shall run from the date of
taking
 Informal settler families on the land who: (1) are classified as underprivileged
and homeless citizens under RA 7279; (2) are owners of structures and
improvements without legally recognized rights to the land; and (3) do not
possess all the qualifications as provided above for those entitled to
replacement cost in case of negotiated sale, shall instead be entitled to
relocation pursuant to RA 7279
 In case the expropriated land is occupied by informal settlers who refuse or are
unable to demolish their structures and other improvements therein, despite the
writ of possession issued by the court
 the court shall issue the necessary writ of demolition for the purpose of
dismantling any and all structures found within the subject property.
 The violation of any of the provisions of R.A. 10752 shall

subject the government official or employee
concerned to appropriate administrative, civil, or
criminal sanctions, including suspension or dismissal from
the government service and forfeiture of benefits in
accordance with the provisions of the law
Expropriation
 Determination of just compensation is a judicial function

 Standard for Assessment of Value of Land under RA 8974 is merely
a standard which the court may consider to facilitate the
determination of just compensation
 it is still the court that renders judgment as to what amount should
be awarded and how to arrive at such an amount
 in the absence of a finding of abuse, arbitrariness, or serious
error, the exercise of such discretion may not be interfered with
(Republic v. Decena, G.R. No. 212786, July 30, 2018)
Expropriation
 Petitioner, through the OSG, posits that it was error for the CA, the
RTC, and the Commissioners to disregard the standards set in RA
8974 on the argument that RA 8974 can and should be made to
apply. Is petitioner correct?
 No. RA 8974 only applies prospectively, being substantive law.
There is nothing in RA 8974 that provides for retroactive application.
The complaint was filed in 1999, before the effectivity of RA 8974.
The standards for determining just. Compensation in RA 8974 are
not applicable in this case. (Republic v. Larrazabal, Sr., G.R. No.
204530, July 26, 2017)
Judicial Foreclosure of Real Estate
Mortgage
 Real estate mortgage - contract in which the obligor guarantees to

the obligee the fulfillment of a principal obligation, subjecting for the
faithful compliance therewith a real property in case of nonfulfillment
of said obligation at the time stipulated.
 Upon default of the mortgagor, foreclosure becomes a necessary
consequence of non-payment of the mortgage indebtedness
Mortgage
 Foreclosure of real estate mortgage may be done: (1)

judicially, under Rule 68; or (2) extrajudicially, to be carried
out pursuant to the provisions of Act No. 3135 or the General
Banking Laws of 2000, as the case may be
 An action to enforce a right arising from a mortgage, such as
a judicial foreclosure of mortgage, should be enforced within
10 years from the time the right of action accrues, i.e., when
the mortgagor defaults in the payment of his obligation to
the mortgage
Mortgage
 In a real estate mortgage when the principal obligation is not paid when
due, the mortgagee has the right to foreclose the mortgage and to have
the property seized and sold with the view of applying the proceeds to the
payment of the obligation.
 real action so far as it is against property, and seeks the judicial recognition
of a property debt, and an order for the sale of the res
 While it may be said that the first stage in an action of real estate
mortgage deals with the issue of whether foreclosure is proper and hence,
incapable of pecuniary estimation, the Supreme Court has affirmed that
still, the court’s jurisdiction will be determined by the assessed value of the
property involved (Russell v. Vestil, G.R. No. 119347, 17 March 1999; Roldan
v. Spouses Barrios, G.R. No. 214803, 23 April 2018)
Mortgage
 The venue shall be where the area of the mortgaged

property or a portion thereof is situated
 If more than one property is being mortgaged, venue is
where any of the properties is located
 In loan contracts secured by a real estate mortgage, the rule
is that the creditor-mortgagee has a single cause of
action against the debtor-mortgagor, i.e., to recover the
debt, through the filing of a personal action for collection of
sum of money or the institution of a real action to foreclose
on the mortgage security
Mortgage
 The 2 remedies are alternative, not cumulative or successive, and each remedy
is complete by itself.
 A creditor-mortgagee cannot split up his single cause of action by filing a
complaint for payment of the debt, and thereafter another complaint for
foreclosure of the mortgage (Pineda v. De Vega, G.R. No. 233774, 10 April 2019)
 Remedy is chosen upon the filing of the action
 if the creditor-mortgagee opts to foreclose the real estate mortgage, he waives
the action for the collection of the unpaid debt;
 the creditor-mortgagee may still be entitled to recover
whatever deficiency may remain in the outstanding obligation of the debtor-
mortgagor after deducting the bid price in the public auction sale of the
mortgaged properties
Mortgage
 During the pendency of the collection of sum of money case filed by

the mortgagee, a writ of attachment may be obtained to attach the
debtor-mortgagor’s property, including the mortgaged property,
should there be grounds existing that warrant the issuance of the said
writ, pursuant to Section 1, Rule 57.
 Preliminary Attachment is also available in judicial foreclosure when: (1)
the insufficiency in value of the mortgaged property to cover the
indebtedness due to the plaintiff; and (2) the existence of the grounds
for the issuance of a writ of preliminary attachment pursuant to Section
1, Rule 57
Mortgage
 Three Stages
 First: court determines first whether the foreclosure is proper
 The court determines if there is a due and demandable loan supported by
a real estate mortgage that would warrant the foreclosure of mortgage
 There will be trial or presentation of evidence for the court to: (1) determine
whether the facts set forth in the complaint are true; and (2) ascertain the
amount due the creditor-mortgagee, including interest and other charges
and costs
 Second: foreclosure sale
 Third: Deficiency judgment
 In all 3 stages, the respective judgments or orders of the court may be the
subject of appeal (record on appeal)
Mortgage
 Indispensable Parties: Mortgagee, Debtor, Mortgagor (if different from debtor)
 debtor is an indispensable party since the case involves the personal
obligation of the debtor to the creditor for the payment of the loan, and
the foreclosure of mortgage would effectively satisfy the said outstanding
obligation
 Mortgagor – his property would be affected
 If the debtor-mortgagor is already deceased, then the indispensable party
would be the executor or administrator of the estate of the deceased
debtor-mortgagor, as the case may be, since Section 1, Rule 87 provides,
among others, that an action to enforce a lien on property forming part of
the estate of the deceased shall be commenced against the executor or
the administrator.
 Implead if not impleaded
Mortgage
 Necessary parties: all persons having or claiming an interest in the property

subordinate in right to that of the holder of the mortgage
 transferee pendente lite of a mortgaged property is not an indispensable
party because a transferee pendente lite stands in exactly the same position
as his predecessor-in-interest, the original defendant or the debtor-
mortgagor, and is bound by the proceedings had in the case before the
property was transferred to him
Mortgage
Transferee pendente lite - Proper party but not indispensable

 Appropriate relief could be granted by the court to the first or
senior mortgagee without affecting the rights of the junior
mortgagees
 Subordinate lien holders acquire only a lien upon the equity of
redemption vested in the mortgagor, and their rights are strictly
subordinate to the superior lien of the senior mortgagee
Mortgage
 consequence of the failure to make the junior mortgagees parties to

the proceeding is that the liens of the junior mortgagees on the equity
of redemption would not be affected by the decree of foreclosure; the
foreclosure would be ineffective as against the said subordinate lien
holder and there would remain an unforeclosed equity of redemption
in favor of the said subordinate lien holder
 It would be prudent to join the junior mortgagees as defendants in
order to foreclose, bar or extinguish any right of equity of redemption
they may have in the property by virtue of their respective liens
Mortgage
 complaint shall set forth the date and due execution of the
mortgage; its assignments, if any; the names and residences of the
mortgagor and the mortgagee; a description of the mortgaged
property; a statement of the date of the note or other
documentary evidence of the obligation secured by the
mortgage, the amount claimed to be unpaid thereon; and the
names and residences of all persons having or claiming an interest
in the property subordinate in right to that of the holder of the
mortgage, all of whom shall be made defendants in the action
Mortgage
 defendant should file his answer within 30 days (unless a different

period is fixed by the court) from service of summons and not a
motion to dismiss, unless the grounds of lack of jurisdiction over the
subject matter, litis pendentia, res judicata or statute of limitations
are present
 ends, after trial, when the court shall render judgment on the
amount due and order the same to be paid to the court or to the
judgment obligee, within the equity of redemption period or the
period provided in the said judgment.
Mortgage
 If upon the trial in such action the court shall find the facts set forth in the
complaint to be true, it shall ascertain the amount due to the plaintiff upon the
mortgage debt or obligation, including interest and other charges as
approved by the court, and costs
 interest (stipulated or legal rate), other charges and costs such as a penal
clause for expenses of collection, or reasonable attorney’s fees and costs
of suit, as approved by the court
 Equity of Redemption: court shall order that the said amount adjudged be
paid to the court or to the judgment creditor within a period of not less
than 90 days nor more than 120 days from the entry of judgment, and that
in default of such payment the property shall be sold at a public auction to
satisfy the judgment
Mortgage
 Equity of redemption - the right of the mortgagor or junior encumbrancer

to extinguish the mortgage and retain ownership of the property or
protect his lien, by paying within the equity of redemption period
 May also pay even after the foreclosure sale but prior to its confirmation
 After such order of confirmation of the sale, no equity of redemption can
be effected any longer
 if the judgment in the first stage is appealed, the said period to exercise
equity of redemption shall only commence after the appeal is resolved
and the decision thereon attains finality
Mortgage
 To discharge the real estate mortgage, the debtor-mortgagor must pay the
creditor-mortgagee:
 (1) the total amount due as the principal loan with the stipulated interest
computed from the filing of the complaint until finality of the decision;
 (2) the legal interest on the total amount due from finality until fully satisfied;
 (3) the reasonable attorney’s fees, if awarded; and
 (4) the costs of suit, if adjudged by the court,
 within the period specified for the exercise of equity of redemption, or even
thereafter as long as it is done before the confirmation of the foreclosure sale.
Mortgage
 General Rule: In judicial foreclosure of real estate mortgage, the right of

redemption, where the debtor may repurchase his property within 1 year from
registration of the certificate of sale, is not recognized
 Exception: where the mortgagee is the Philippine National Bank or a bank or
banking institution within the purview of the General Banking Law of 2000
 right of redemption in relation to a mortgage is a prerogative to reacquire
mortgaged property after registration of the foreclosure sale, which exists in the
case of the extrajudicial foreclosure of the mortgage
 Where a mortgage is foreclosed extrajudicially, Act No. 3135 grants to the
mortgagor the right of redemption within 1 year from the registration of the
sheriff’s certificate of foreclosure sale
Mortgage
 Section 47 of the General Banking Law of 2000 - in the event of foreclosure,
whether judicially or extrajudicially, of any mortgage on real estate which is
security for any loan or other credit accommodation granted, the mortgagor or
debtor whose real property has been sold for the full or partial payment of his
obligation shall have the right within one year after the sale of the real estate, to
redeem the property by paying the amount due under the mortgage deed,
with interest thereon at the rate specified in the mortgage, and all the costs and
expenses incurred by the bank or institution from the sale and custody of the
said property less the income derived therefrom
 The foregoing provision that allows the debtor the right of redemption or to
reacquire the property sold at a foreclosure sale applies in all instances when
the foreclosing mortgagee is a bank, quasi-bank or trust entity, within the
meaning of the General Banking Law of 2000
Mortgage
Second Stage
 If the judgment debt is paid within the equity of redemption period then
the case will no longer proceed to the second stag
 second stage begins after the period stipulated in the said judgment
lapses and there is still failure to pay the sum adjudged in the first stage
 motion shall then be filed, praying for the foreclosure sale of the
mortgaged property
Mortgage
 Unlike in extrajudicial foreclosure of real estate mortgage, no

special power inserted in or attached to the mortgage contract
is necessary in order for there to be a foreclosure sale, as the
judicial foreclosure sale may be had upon the order of the
court.
 After the court orders the property be sold at a public auction, the
proceeds of the sale shall be paid in satisfaction of the outstanding
obligation
 ends with the court’s issuance of an order confirming the sale
Extrajudicial Foreclosure of Real Estate
Mortgage
Special power of attorney to sell is needed in extrajudicial

foreclosure of real estate mortgage because:
 (1) the sale would be made through the sheriff with the
mortgagees acting as agents of the mortgagor-owner and
hence, there must be a written authority from the mortgagor-
owner in favor of the mortgagees as his agents, and without
proof of such special authority to foreclose, the clerk of court
as ex-officio sheriff would be precluded from acting on the
application for extra-judicial foreclosure;
Mortgage
 (2) Article 1878 (5) of the Civil Code provides that a special
power of attorney is necessary for entering into any contract by
which the ownership of an immovable is transmitted or acquired
either gratuitously or for a valuable consideration, and as a
consequence, the written authority must be a special power of
attorney to sell the mortgaged property; and
 (3) without such special power of attorney, the foreclosing
mortgagees cannot initiate the extrajudicial foreclosure, but
must instead resort to judicial foreclosure pursuant to the
procedure set forth in Rule 68
Mortgage
 There must be valid and sufficient notice of the foreclosure sale
 notice of mortgage foreclosure sales must be strictly complied with, and
that even slight deviations therefrom will invalidate the notice and render
the sale at least voidable.
 purpose of the publication of the notice of the sale is to inform all
interested parties of the date, time and place of the foreclosure sale of the
real property subject thereof.
 This not only requires that the correct date, time and place of the
foreclosure sale appear in the notice, but also that any and all interested
parties be able to determine that what is about to be sold at the
foreclosure sale is the real property in which they have an interest
 for the purpose of securing bidders and to prevent a sacrifice of the
property
Mortgage
 If the assessed value of the property is not more than Php50,000.00, notice
must be given before the sale of the real property by posting for 20 days in 3
public places, preferably in conspicuous areas of the municipal or city hall,
post office and public market in the municipality or city where the sale is to
take place
 If the assessed value of the property exceeds Php50,000.00, notice of the
sale shall be made by publishing a copy of the notice once a week for 2
consecutive weeks in a newspaper selected by raffle, whether in English,
Filipino, or any major regional language published, edited and circulated, or,
in the absence thereof, having general circulation in the province or city
 In all cases, notice of the sale shall also be given to the judgment debtor at
least 3 days before the sale, in the same manner as personal service of
pleadings and other papers as provided in Rule 13
Mortgage
 notice shall particularly describe the property and state where the
property is to be sold, the date and the exact time of sale which
should not be earlier than 9:00 in the morning and not later than 2:00 in
the afternoon
 place of the sale may be agreed upon by the parties and in the
absence of such agreement, the sale shall be held in the office of the
clerk of court of the trial court which issued the order of foreclosure
sale, or which was designated by the appellate court, as the case may
be
 There must be a republication or reposting of the notice of sale if the
foreclosure does not proceed on the date originally intended
Mortgage
 If a third party makes a claim on the property, the said third-party claimant
may:
 (1) avail of the remedy known as terceria under Section 16, Rule 39, by
serving on the officer making the levy and on the judgment mortgagee a
copy of an affidavit of his title or right to the possession thereof, stating the
grounds of such right or title; or
 (2) bring an independent separate action to vindicate his claim of
ownership and/or possession over the foreclosed property.
 Both remedies are cumulative and may be availed of independently of or
separately from each other; the availment of the terceria is not a condition
sine qua non to the institution of a separate action
Mortgage
 By the terceria, the officer shall not be bound to keep the property,
unless such judgment mortgagee, on demand of the officer, files a
bond approved by the court to indemnify the third-party claimant
 in a sum not less than the value of the property levied or as
determined by the court issuing the order of foreclosure sale in
case of disagreement as to such value
 When the foreclosure sale order is issued in favor of the Republic
of the Philippines, or any officer duly representing it, the filing of
such bond shall not be required
Mortgage
 The sale of property under execution shall be made at a public

auction, to the highest bidder, to start at the exact time fixed in the
notice
 Neither the officer conducting the foreclosure sale, nor his deputies,
can become a purchaser, nor be interested directly or indirectly in any
purchase at such sale.
Mortgage
 the disposition of the proceeds of the sale in foreclosure shall be:

 first, the payment of the costs;
 second, the payment of the mortgage debt;
 third, payment of the junior encumbrancers, if any, in the order
of priority; and
 fourth, the balance, if any, shall be given to the mortgagor, his
agent, or the person entitled thereto
Mortgage
 When the purchaser is the judgment mortgagee, and

no-third party claim has been filed, the mortgagee
need not pay the amount of the bid if it does not
exceed the amount of his judgment.
 insuch instance, there is no need for the mortgagee
who is the purchaser, to pay the bid amount in cash
Mortgage
 If a purchaser refuses to pay the amount bid by him for

property struck off to him at a sale under execution, the
officer may again sell the property to the highest bidder
and shall not be responsible for any loss occasioned
thereby
 courtmay order the refusing purchaser to pay into
the court the amount of such loss, with costs, and
may punish him for contempt if he disobeys the order
Mortgage
 After the foreclosure sale, the court, upon motion, shall issue
an order of confirmation of the foreclosure sale
 Upon the finality of the order of confirmation or upon the
expiration of the period of redemption when allowed by law,
the purchaser at the auction sale or last redemptioner, if any,
shall be entitled to the possession of the property unless a
third party is actually holding the same adversely to the
judgment obligor
Mortgage
 The said purchaser or last redemptioner may secure a

writ of possession, upon motion, from the court which
ordered the foreclosure
 after the confirmation of the sale and the issuance of
the transfer certificates of title covering the subject
property to the purchaser thereof, the court shall
have the ministerial duty to place the said purchaser
in the possession of the subject property
Mortgage
 upon the sale of the property, the officer must give to the
purchaser a certificate of sale containing:
 (a) a particular description of the real property sold;
 (b) the price paid for each distinct lot or parcel;
 (c) the whole price paid by him;
 (d) a statement that the right of redemption, if applicable, expires
1 year from the date of the registration of the certificate of sale;
and
 (e) an express mention of the existence of the third-party claim if
the property has been claimed by a third person
Mortgage
 certificate of sale must be registered in the Registry of Deeds

of the place where the property is situated together with a
copy of the final order confirming the sale
 Where a right of redemption exists, the certificate of title in
the name of the mortgagor shall not be cancelled, but the
certificate of sale and the order confirming the sale shall be
registered and a brief memorandum thereof shall be made
by the registrar of deeds upon the certificate of title
Mortgage
 If the property is redeemed, the deed of redemption shall

be registered with the Registry of Deeds, and a brief
memorandum thereof shall be made by the registrar of
deeds on said certificate of title
 If no right of redemption exists, or the redemption period
lapsed without there being any redemption, the final
deed of sale executed by the sheriff in favor of the
purchaser at the foreclosure sale shall be registered with
the Registry of Deeds and certificate of title in the name
of the mortgagor shall be cancelled, and a new one shall
be issued in the name of the purchase
Mortgage
 During the period of redemption, when the same is applicable, the

court may, as in other proper cases, restrain the commission of
waste on the property by injunction, on the application of the
purchaser or the judgment mortgagor
 If during the period of redemption, when applicable, the judgment
mortgagor is in possession of the property sold, he is entitled to
retain it and to receive its fruits, the purchaser not being entitled to
its possession.
 After the expiration of the redemption period, the purchaser shall
be entitled to the said fruits.
Mortgage
Third Stage
 for the purpose of obtaining a deficiency judgment or for the
satisfaction of the deficiency in the amount due as
adjudged in the first stage
 this stage will not be necessary if there is a surplus in the
proceeds of the sale or if the proceeds of the sale fully
satisfied the judgment debt
Mortgage
 There can only be a deficit when the proceeds of the sale

are not sufficient to cover: (1) the costs of foreclosure
proceedings; and (2) the amount due to the creditor,
inclusive of interests and penalties, if any, at the time of
foreclosure
 a deficiency judgment shall only issue after it is established
that the mortgaged property was sold at a public auction
for an amount less than the outstanding obligation
Mortgage
 the court, upon motion, shall render judgment against the debtor-
mortgagor for any such balance for which, by the record of the case,
he may be personally liable to the creditor-mortgagee
 satisfied by execution pursuant to Rule 39,
 if the debtor-mortgagor is unable to pay the deficiency, the property
of the debtor-mortgagor, other than the mortgaged property, may
be attached, levied on or garnished and sold at a public auction,
with the proceeds therefor to be applied for the satisfaction of the
said deficiency
 A court cannot allow recovery of deficiency before the sale of the
mortgaged property and before it is known whether or not a deficiency
exist
Mortgage
 The proceedings for the recovery of deficiency

judgment shall be in the same foreclosure case
 except when the mortgagor dies, in which case, the
claim shall be made against the estate of the
deceased in the proceedings for the settlement of
estate
Mortgage
 (1) No TRO or WPI against the extrajudicial foreclosure of real estate
mortgage shall be issued on the allegation that the loan secured by the
mortgage has been paid or is not delinquent unless the application is verified
and supported by evidence of payment.
 (2) No TRO or WPI against the extrajudicial foreclosure of real estate
mortgage shall be issued on the allegation that the interest on the loan is
unconscionable, unless the debtor pays the mortgagee at least the legal
rate of interest percent per annum interest on the principal obligation as
stated in the application for foreclosure sale, which shall be updated monthly
while the case is pending.
 12% before effectivity of Circular No. 799, Series of 2013 on 1 July 2013
 6% after the effectivity
Mortgage
 (3) Where a WPI has been issued against a foreclosure of

mortgage, the disposition of the case shall be speedily resolved. To
this end, the court concerned shall submit to the Supreme Court,
through the Office of the Court Administrator, quarterly reports on
the progress of the cases involving ten million pesos and above.
 (4) All requirements and restrictions prescribed for the issuance of a
TRO or WPI, such as the posting of a bond, which shall be equal to
the amount of the outstanding debt, and the time limitation for its
effectivity, shall apply as well to a status quo order. (Spouses Tumon
v. Radiowealth Finance Co., Inc., G.R. No. 243999, March 18, 2021)
Foreclosure of Real Estate Mortgage –
Case
 Where the loan obligation secured by a mortgage was marred by

an iniquitous imposition of monetary interest because the creditors
omitted to specifically identify the imposable interest rate,
the foreclosure proceedings should not be given effect
 the extra-judicial foreclosure sale of a mortgaged property, which
was foreclosed due to the non-payment of a loan, was invalidated
because the interest rates imposed on the loan were found to be
null and void due to their unconscionability (Bulatao v. Estonactoc,
G.R. No. 235020, December 10, 2019)
Partition
 the separation or division of a movable or immovable property (or its

value) held in common among those to whom it may belong, giving to
each one of them the part corresponding to him
 The law does not make a distinction as to how the co-owner derived
his/her title, may it be through gratuity or through onerous consideration. A
person who derived his title and was granted co-ownership rights through
gratuity may compel partition (Logrosa v. Spouses Azares, G.R. No. 217611,
March 27, 2019, )
 The object of partition is to enable those who own property in common to
put an end to the joint ownership so as to vest in each a sole estate in
specific property or an allotment in the lands or tenements
Partition
 General Rule: May demand partition at anytime

 Exceptions:
 (1) there is an agreement to keep the thing undivided for a certain
period of time, not exceeding 10 years, unless the term to keep the
thing undivided is extended by a new agreement;
 (2) a donor or testator prohibited partition for a period not
exceeding 20 years;
Partition
 (3) partition is prohibited by law; and

 (4) when physical division of the thing would render it
unserviceable for the use for which it was intended, in which
case, the property shall be allotted to one of the co-owners
who shall indemnify the others, but if they cannot agree on
to whom it will be allotted, the property shall instead be sold
and the proceeds distributed among the co-owners
Partition
When prohibited by law

 Family Home: Article 159 of the Family Code provides
that as a rule, the heirs cannot partition the family home
despite the death of one or both spouses or the
unmarried head of the family, and the family home shall
continue as such for a period of 10 years or for as long
as there is a minor beneficiary, unless the court finds
compelling reason therefor
Partition
 (1) the beneficiary falls under the relationship enumerated in Article 154 of the
Family Code;
 Husband and wife or unmarried person who is the head of the family, their
parents, ascendants, descendants, brothers and sisters, whether the
relationship be legitimate or illegitimate, living in the family home and who
depend on. The head of the family home for legal support
 the minor grandson of the grandfather decedent, who lived with the
grandfather in his family home prior to his death, is not a minor
beneficiary within the contemplation of the law that would prevent the
partition of the family home because the grandson did not depend on
his grandfather for support
 (2) the beneficiary lives in the family home, and
 (3) the beneficiary is dependent for legal support upon the head of the family
Partition

 If will left behind – probate; settlement of estate
 If no will and no debts left behind: Extrajudicial Settlement/
Extrajudicial Partition – if parties cannot agree, then judicial partition
 General Rule: no prescription shall run in favor of a co-owner or co-
heir against his other co-owners or co-heirs, so long as he expressly or
impliedly recognizes the co-ownership
 Exception: where there exists a clear repudiation of the co-
ownership, and the co-owners are apprised of the claim of adverse
and exclusive ownership
Partition

 Grounds for dissolution of the absolute community of property or
conjugal partnership of gains:
 (1) death of their spouse;
 (2) when there is a decree of legal separation;
 (3) when the marriage is annulled or declared void; or
 (4) in case of judicial separation of property during the marriage
under Articles 134 to 138 of the Family Code
Partition
 The Regional Trial Court, Municipal Trial Courts, Metropolitan Trial Courts,
Municipal Trial Courts in Cities, and Municipal Circuit Trial Courts have
original jurisdiction over actions for partition, depending on the nature and
the value of the subject or property in dispute
 While it may be said that the first phase involved in partition of real
property deals with an action incapable of pecuniary estimation, i.e.,
whether partition is proper or a declaration that the parties are co-owners
of the subject property, the determination of the court which will acquire
jurisdiction over the same must still conform to Sections 19 (2) and 33 (3) of
B.P. 129, meaning that the jurisdiction will depend on the assessed value
of the real property
 venue depends on the nature of the property involved, on whether it is a
real or personal action
Partition
 The partition of real estate is an action quasi in rem

 Quasi in rem actions are actions involving the status of a
property over which a party has interest; they are not binding
upon the whole world as they affect only the interests of the
particular parties
 For the court to acquire jurisdiction in actions quasi in rem, it is
necessary only that it has jurisdiction over the res that is the
subject matter of the action
Partition
 However, jurisdiction over the parties is required is still

required regardless of the type of action, whether the action
is in personam, in rem, or quasi in rem, to satisfy the
requirements of due process
 violation of a party’s right to due process raises a serious
jurisdictional issue which cannot be glossed over or
disregarded at will
Partition
 Partition may be done judicially or extrajudicially, by mere

agreement between the parties
 An action for partition is not mandatory, and the parties may, if
they decide, agree among themselves extrajudicially on the
partition
 There may also be only a partial partition of the property owned in
common; it is not prohibited
 should be exercised sparingly because a partial partition and
distribution does not put to rest the question of the division of
the entire property
Partition
Two Phases
 First Phase – determination of whether partition is proper
 Second Phase – division and segregation of property
First Phase
 starts with the filing of a complaint and may end in a declaration
that the plaintiff is not entitled to the desired partition either
because a co-ownership does not exist or a partition is legally
prohibited
 may also end, on the other hand, with an adjudgment that a co-
ownership does in truth exist, that partition is proper in the premises,
and that an accounting of rents and profits received from the
property is in order
Partition
 whether the action is dismissed or partition and/or

accounting is decreed, the order is a final one and may be
appealed by any party aggrieved thereby
 Unless and until the issue of co-ownership is definitively
resolved, it would be premature to effect a partition of an
estate, or to proceed to the second phase of the action for
partition
Partition
 Second Phase: commences when the parties are unable to agree

upon the manner of partition
 The parties may, if they are able to agree, make partition among
themselves by proper instruments of conveyance, and the court
shall confirm the partition so agreed upon by all the parties
 In case there is a compromise agreement between the parties on
the manner of partition which is approved by the court, the
compromise agreement settles the rights of the parties and has the
force of res judicata.
 It cannot be disturbed except on the ground of vice of consent,
such as fraud, mistake, duress or forgery
Partition
 In case of disagreement as to how the property will be

divided, the court shall appoint not more than 3
commissioners to assist it in determining how the property will
be divided among the co-owners.
 second phase may also deal with the rendition of the
accounting itself and its approval by the court after the
parties have been accorded the opportunity to be heard
thereon, and an award for the recovery of their just shares in
the rents and profits of the real estate in question by the party
or parties entitled thereto.
 Order appealable
Partition
 Generally, the partition must be in writing

 Oral agreement, partially performed was sustained - where the
parol partition has actually been consummated by the taking of
possession in severalty and the exercise of ownership by the parties
of the respective portions set off to each
 Parol partition may be sustained on the ground of estoppel of
the parties, that the parties have acquiesced in and ratified the
partition by taking possession in severalty, exercising acts of
ownership with respect thereto, or otherwise recognizing the
existence of partition
Partition
 For a complaint for partition to prosper, it is required that the

plaintiff must have an interest in the property, which is why Section
1, Rule 69 provides that the plaintiff must state in the complaint the
nature and extent of his title, among others.
 partition will not lie if the claimant has no rightful interest over the
subject property
 All co-owners must be impleaded as parties because they are
indispensable parties, so that the judgment may be conclusive as
against all co-owners and to prevent the co-owners who were not
impleaded (and hence, not bound by the judgment) from being
harassed by succeeding actions or multiplicity of suits.
Partition
 If not all co-owners are impleaded, all actions and rulings of

the court on the case would be null and void for want of
authority to act, both as to the absent and present parties.
 If the other co-owners are unwilling to give their consent to
institute the case with the co-owner demanding partition
concerned, the plaintiff co-owner may implead the non-
consenting co-owners as defendants for being unwilling co-
plaintiffs.
Partition
 Those claiming ownership over the property but were not

impleaded are not bound to intervene; the burden is on the
plaintiff to implead those interested in the property because:
 (1) intervention is not compulsory or mandatory but merely
optional and permissive; and
 (2) persons who are in actual possession of the property they
claim to own, but were not impleaded, may wait until their
possession is in fact disturbed before taking steps to vindicate
their right
Partition
 even in an extrajudicial partition, all co-owners must be

parties to the deed of partition for the same to be binding
upon them
 deed of extrajudicial partition executed without including
some of the heirs, who had no knowledge of and consent to
the same, is fraudulent and vicious. It is invalid.
 No extrajudicial settlement shall be binding upon any
person who has not participated therein or had no notice
thereof.
 A deed of extrajudicial partition executed in violation of
the foregoing rule should be annulled
Partition
 if a co-owner was not a party to the deed, the partition may

be sustained if the co-owner nevertheless accepted the
partition allotted to him, and held the same as owner
thereof.
 Such co-owner would be barred from avoiding the partition.
 Parties who had received the property assigned to them are
precluded from subsequently attacking its validity or any part
of it, by reason of estoppel
Partition
 If after trial the court finds that the plaintiff has the right to
partition, the court shall issue an order of partition, directing the
partition of the property among all the parties in interest, and
an accounting of rents and profits received by the other party
from the real estate in question.
 There shall be a mutual accounting of benefits received and
reimbursements for expenses made
 if the partition pertains to the division of property inherited, the
co-heirs shall reimburse one another for the income and fruits
which each one of them may have received from any property
of the estate, for any useful and necessary expenses made
upon such property, and for any damage thereto through
malice or neglect
Partition
 An order of partition is a final determination of the co-

ownership by the parties and the propriety of the
partition
 an order decreeing partition and accounting may be
appealed by the aggrieved party thereby
 If not appealed, it becomes final and executory and
cannot be disturbed
Partition
 order of partition cannot be changed, even upon by the

agreement of the parties
 Exception: although the order of partition had long been final, it
may be novated with the consent of all co-owners when the
partition was void and where novation was required in the interest
of justice and equity and was warranted under the prevailing
circumstances for the expeditious settlement of the estate.
 alleged co-owners were merely nominal registered owners,
such that they were not the true owners of the property.
Partition was void, and the agreement of the true owners may
novate the said partition.
Partition
 Generally, the decision in the first phase which orders

partition should not be executed since there will be
further proceedings in the second phase.
 However, execution may be resorted to insofar as the
part of the judgment that will not necessitate any
further proceedings, such as enforcement of the
obligation of the defendant to render an accounting,
and payment of attorney’s fees and costs of suit, should
such rulings be contained in the decision ordering
partition.
Partition
 After the decision finding that partition is proper and accounting of

costs and expenses, the parties may enter into an agreement to
make the partition among themselves, to be submitted for the
court’s approval
 even if the parties cannot agree on the fact of partition, which
brought about the filing of an action for partition, the parties will still
be given an opportunity to agree among themselves the manner
of partition in this stage
 partition, once confirmed by the court, together with the order of
the court confirming the said partition, shall be recorded in the
Registry of Deeds of the place in which the property is situated
Partition
 all the co-owners must agree to or sign the agreement or project of

partition.
 Even if all the co-owners manifested in open court that they have
agreed on the manner of the partition of the property but the
agreement as submitted to the court did not contain all the
signatures of the co-owners, such agreement cannot be approved
by the court, which shall instead, proceed with the second phase
for the appointment of commissioners.
 court has no authority to approve a project of partition that does
not bear all the signatures of the co-owners because only a
document signed by all the co-owners can signify that they
agreed on the project of partition
Partition
 Neither can the court immediately proceed with the sale of the
property in the absence of any agreement to any project of
partition.
 order of the court directing the sale by public auction of the
property subject of the partition case, where the parties were
unable to agree on a partition, was void
 only after it is made to appear that the real estate or a portion
thereof cannot be divided without great prejudice to the interest
of the parties, and one of the co-owners asks that the property be
sold instead of being assigned to one of the parties, may the court
order the commissioners to sell the real estate at a public sale
Partition
Second Phase
 If the parties are unable to agree upon the division of the property,
the court shall appoint not more than 3 competent and
disinterested persons as commissioners to make the partition,
commanding them to set off to the plaintiff and to each party in
interest such part and proportion of the property as the court shall
direct
 may also deal with the rendition of the accounting itself and its
approval by the court after the parties have been accorded the
opportunity to be heard thereon, and an award for the recovery
by the party or parties thereto entitled of their just share in the rents
and profits of the real estate in question
Partition
 Section 3, Rule 69 categorically provides that if the parties are unable to

agree upon the partition, the court shall appoint the commissioners to
make the partition
 When it is made to appear to the commissioners that the real state, or a
portion thereof, cannot be divided without prejudice to the interests of
the parties,
 the court may order it assigned to one of the parties willing to take
the same, provided that he pays to the other parties such amount as
may be deemed equitable,
 unless one of the interested parties asks that the property be sold
instead of being so assigned, in which case the court shall order the
commissioners to sell the real estate at public sale under such
conditions and within such time as the court may determine
Partition
 when the thing owned in common cannot be physically divided

such that a division thereof would render it unserviceable for the
use for which it is intended or it is essentially indivisible, the co-
owners shall agree to allot the same to one of them, who will, in
turn indemnify the others
 If one objects to this or if they do not agree to whom the property
shall be assigned, then it shall be sold and the proceeds of the sale
shall be distributed among the co-owners
 No proceeding had before or conducted by the commissioners
shall pass the title to the property or bind the parties until the court
shall have accepted the report and rendered judgment thereon
Partition
 Exception: when all the parties themselves have already

actualized the unconfirmed sketch/subdivision plan. In such
case, the parties who actualized the subdivision plan are
deemed to be estopped from assailing the absence of court
approval on the sketch/subdivision plan by their acts,
through their predecessors-in-interest, of implementing the
sketch/subdivision plan and occupying as exclusive owners
their respective portions.
Partition
 If actual partition of property is made, the judgment shall

state definitely, by metes and bounds and adequate
description, the particular portion of the real estate assigned
to each party, and the effect of the judgment shall be to
vest in each party to the action in severalty the portion of the
real estate assigned to him
 The court must identify and segregate by metes and bounds
the specific portions of the lots assigned to the co-owners
and effect the physical partition of the property
Partition
 If the whole property is assigned to one of the parties upon his

paying to the others the sum or sums ordered by the court,
 the judgment shall state the fact of such payment and of the
assignment of the real estate to the party making the payment,
 and the effect of the judgment shall be to vest in the party
making the payment the whole of the real estate, free from any
interest on the part of the other parties to the action
Partition
 If the property is sold and the sale is confirmed by the court, the
judgment shall state the name of the purchaser or purchasers and
a definite description of the parcels of real estate sold to each
purchaser, and the effect of the judgment shall be to vest the real
estate in the purchaser or purchasers making the payment or
payments, free from the claims of any of the parties to the action
 A certified copy of the judgment shall, in either case, be recorded
in the Registry of Deeds of the place in which the real estate is
situated, and the expenses of such recording shall be taxed as part
of the costs of the action
Partition
 Registration is merely a species of notice; the act of registering a

document is never necessary in order to give it legal effect as
between the parties.
 Requirements for the recording of the instruments are designed to
prevent frauds and to permit and require the public to act with the
presumption that recorded instruments exist and are genuine
 The partition of the thing owned in common shall not prejudice
third persons, who shall retain the rights of mortgage, servitude, or
any other real rights belonging to them before the division was
made
 After partition, every co-owner shall also be liable for defects of title
and quality of the portion assigned to each of the other co-owners
FORCIBLE ENTRY AND UNLAWFUL
DETAINER
 action for ejectment covers all kinds of action for recovery of

possession, which includes forcible entry and unlawful
detainer
 Forcible entry and unlawful detainer cases are real actions
and in personam,
 plaintiff therein seeks to enforce a personal obligation or
liability on the defendant for the latter to vacate the real
property subject of the action, restore the physical
possession thereof to the plaintiff, and pay actual
damages by way of reasonable compensation for his use
or occupation of the property
DETAINER
 Accion interdictal or a summary ejectment proceeding, which may be either
for forcible entry (detentacion) or unlawful detainer (desahucio), for the
recovery of physical or material possession (possession de facto) where the
dispossession has not lasted for more than one year, and should be brought in
the proper inferior court;
 Accion publiciana or the plenary action to recover the better right of
possession (possession de jure), which should be brought in the proper inferior
court or Regional Trial Court (depending upon the value of the property) when
the dispossession has lasted for more than one year; and
 3. Accion reivindicatoria or accion de reivindicacion or reivindicatory action,
which is an action for recovery of ownership which must be brought in the
proper inferior court or Regional Trial Court (depending upon the value of the
property) Macutay v. Samoy, G.R. No. 205559, [December 2, 2020
DETAINER
Accion Publiciana Accion Reivindicatoria
An ordinary civil proceeding to determine the cause of action of the plaintiff is to recover
better right of possession of real property possession by virtue of his ownership of the land
independently of title. It also refers to an subject of the dispute – jus vindicandi
ejectment suit filed after the expiration of one
year from the accrual of the cause of action or
from the unlawful withholding of possession of the
real property
a registered owner or one with a Torrens title can plaintiff's claim of ownership (and necessarily,
likewise file an accion publiciana to recover possession or jus possidendi) is based on Torrens
possession if the one-year prescriptive period for title. If. defendant disputes the validity of this
forcible entry and unlawful detainer has already Torrens title, the issue of whether there is a
passed. direct or collateral attack on the plaintiff's title is
Court can pass upon issue of ownership for the irrelevant. The court has the jurisdiction to rule
purpose of resolving possession definitively or with finality on the issue of
ownership and pass upon the validity of the
plaintiff's certificate of title
DETAINER
 Forcible entry - possession by the defendant is illegal at the inception,

because it was obtained by means of force, intimidation, threat, strategy
or stealth. The issue centers on who was in prior possession de facto. The
plaintiff must prove that he was in prior physical possession of the premises
until he was deprived thereof by the defendant.
 The fact that a demand was made by the plaintiff for the defendant to
vacate the subject premises when the defendant’s possession was illegal
at the inception, cannot change the nature of the defendant’s
possession of the property and convert the plaintiff’s action from
forcible entry to one for unlawful detainer
 One year from dispossession, unless stealth, from discovery
 No prior demand needed
DETAINER
 Unlawful detainer - the possession of the defendant is inceptively lawful but
becomes illegal by reason of the termination of his right to the possession of
the property under his contract with the plaintiff. There is unlawful withholding
of possession, which is made after the expiration or termination of the right to
hold possession under any contract, express or implied
 commenced only within 1 year after demand is made upon the lessee to; (1)
pay, such as when there is non-payment of rental, or comply with the
conditions of the lease, pertaining to any other violation of the agreement;
and (2) vacate the premises; Unless agreed that they must vacate without
need of further demand
 The action may be instituted if the lessee fails to comply therewith after 15
days in the case of land or 5 days in the case of the building, unless
otherwise stipulated, such as when the demand, notice to vacate or
contract provides for a different period within which to vacate
DETAINER
 Unlawful detainer
 When one was allowed to possess the property by mere
tolerance and despite demand to vacate, the said possessor
refuses to do so, then the proper action to file would be one
for unlawful detainer, since the possession was legal at its
inception, and becomes illegal from the demand to vacate.
 For possession to fall within the purview of one for tolerance,
the overt acts as to when and how the defendant entered
the property and who specifically allowed him to occupy the
same must be established.
DETAINER
 Unlawful Detainer
 Implied lease/Tacita Reconduccion - Under Article 1670 of the Civil Code, a
new lease is implied if the lessee continues enjoying the thing leased for 15
days after the termination of the original contract, unless notice to the
contrary has been previously given by either party. If a notice of the
termination of the lease is given before the implied lease is constituted, the
fact that the lessee continues to stay for 15 days or more is not a ground for
inferring a new lease.
 This implied renewal of the lease is not for the original period of the contract,
but for the periods established by Articles 1682 and 1687 of the Civil
Code. Upon termination of the implied lease, the lessor may demand the
lessee to vacate and in case of refusal to do so, the next remedy of the lessor
is to bring an action for unlawful detainer.
DETAINER
 If not filed within one year – no jurisdiction over the remedy

 X surreptitiously entered Y’s property by means of stealth, and has been
staying there for 2 years until Y discovered X. Y made a demand for X to
vacate after 10 months after discovery. X refused to vacate. Y, on the 11th
month from discovery, brings an action for unlawful detainer.
 Will the case prosper?
 Was the action filed on time?
DETAINER
 No, action should have been for forcible entry, because X’s possession
was illegal from the start, by entering Y’s property by means of stealth. The
action, had it been for forcible entry, would have been filed on time, as
the prescriptive period is counted from the discovery if the dispossession is
by means of stealth. The fact that Y did not file the action until after 10
months is immaterial and will not change the nature of the action from
forcible entry to unlawful detainer/possession by tolerance, since Y has 1
year from dispossession within which to file the action.
DETAINER
 the only question that the courts must resolve is who between the parties is
entitled to the physical or material possession of the property in dispute
because the principal issue must be possession de facto, or actual
possession, and ownership is merely ancillary to such issue
 Courts may provisionally determine ownership to determine the rightful
possession
DETAINER
Will a pending action for annulment of mortgage bar an action

for ejectment over the same property?
 No. An action for recovery of ownership or for annulment of
mortgage would not be a bar to an action for ejectment, since
they deal with different causes of action: the first involving the
issue of ownership, and the relief prayed for is the recovery of
ownership of the subject land; and the second, involving the
issue of possession and the relief prayed for is the restoration of
the possession over the land
DETAINER
 The Municipal Trial Courts, Metropolitan Trial Courts,

Municipal Trial Courts in Cities, and Municipal Circuit Trial
Courts have exclusive original jurisdiction over actions for
forcible entry and unlawful detainer
 Regardless of unpaid damages or rentals
 Unpaid rentals – merely incidental to the main action for
recovery of possession
 Where attorney’s fees are awarded, the same shall not
exceed Php100,000.00
 Summary Procedure (A.M. No. 08-8-7-SC)
DETAINER
X brings an action against Y for unlawful detainer with the MTC,

alleging Y violated the lease and that despite demand. Y
refused to v vacate. Y moves to the dismiss on the ground of
lack of jurisdiction, alleging that the relationship between the
parties is tenancy. Is the court automatically deprived of
jurisdiction over the action?
DETAINER
 NO. The complaint sufficiently averred the allegations showing that the case
is one of unlawful detainer and within the lower court’s jurisdiction. The court is
not automatically divested of jurisdiction over the case, since jurisdiction is
determined by the allegations in the complaint. The answer does not
determine the jurisdiction of the court over the case. The jurisdiction of the
court over the nature of the action and the subject matter thereof cannot be
made to depend upon the defenses set up in court or upon a motion to
dismiss for, otherwise, the question of jurisdiction would depend almost
entirely on the defendant.
DETAINER
 The defense of tenancy gives the court the authority to receive

evidence to determine the tenability of the claim of tenancy. It is
the duty of the court to receive evidence to determine the
allegations of tenancy and to hear the evidence for the purpose of
determining whether or not it has jurisdiction. Despite the sufficient
allegation for jurisdiction in the complaint, the case will be
dismissed for lack of jurisdiction if upon hearing, it is shown that
tenancy is the real issue Concepcion v. Presiding Judge, G.R.
No. L-35489, 15 December 1982)
DETAINER
 The action need not be commenced by the owner of the property, but
rather, by the rightful possessor of the same since the issue in ejectment is
possession and the question of ownership is at best, only ancillary thereto
 Lessee may bring forcible entry against lessor
 Ordinary rules shall apply where no specific provision is found therein
 Also suppletory application even if there is a specific provision but only insofar
as not inconsistent
 If inconsistent, Summary Procedure shall prevail (A.M. No. 08-8-7-SC))
DETAINER
 All pleadings verified

 All pleadings shall comply with Rule 7
 If prior barangay conciliation applies, there
must be a statement of such compliance
 Ifnone, court may motu proprio dismiss/
motion to dismiss, and thereafter dismiss
without prejudice to refiling after compliance
(A.M. No. 08-8-7-SC))
DETAINER
 Complaint
 Names of affiants whose JA’s will be presented to prove the plaintiff’s
claims
 JA’s must be attached if not, shall not be considered:
 Exception:
Motion to Admit Belated JA if on ground of acts of God
or Force majeure
 Summary of statements in JA
 Documentary and object evidence
 Whether plaintiff consents to service by electronic means/facsimile
and if so, e-mail address/facsimile number (A.M. No. 08-8-7-SC)
DETAINER
 Before summons issued, court determines if case falls

under Summary Procedure
 Court examines if there are grounds to dismiss outright
from allegations in initiatory pleading and evidence
 Lack of jurisdiction over the subject matter, improver venue,
lack of legal capacity to sue res judicata, prescription, failure
to state cause of actin, no certification against forum
shopping, fail to comply with condition precedent such as
prior barangay conciliation, among others (A.M. No. 08-8-7-
SC)
DETAINER
 If falling under Summary procedure and no ground to

dismiss, summons issued
 Rule 13 and 14 apply
 Answer – 30 calendar days from service of summons
 Motion for extension of time to file is prohibited
 Motion to dismiss prohibited except: lack of jurisdiction
over the subject matter and failure to comply with prior
barangay conciliation (A.M. No. 08-8-7-SC)
DETAINER
 If motion to dismiss on ground of lack of jurisdiction

over the subject matter is denied, can you assail
the order denying the motion by a motion for
reconsideration?
DETAINER
 YES.
 What the rules prohibit are motion for new trial
or for reconsideration of judgment on the merits
or reopening of proceedings (A.M. No. 08-8-7-
SC)
 Order denying motion to dismiss is not a
judgment but interlocutory order
DETAINER
 Answer
 Names of affiants whose JA’s will be presented to prove the
defendant’s defenses
 JA’s must be attached if not, shall not be considered:
 Exception:
Motion to Admit Belated JA if on ground of acts of
God or Force majeure
 Summary of statements in JA
 Documentary and object evidence
 Whether plaintiff consents to service by electronic
means/facsimile and if so, e-mail address/facsimile number (A.M.
No. 08-8-7-SC)
DETAINER
 Answer
 Affirmative defenses not pleaded in the answer shall be
deemed waived, except for:
 Lack of jurisdiction over the subject matter
 Litis pendentia
 Res judicata
 Prescription (A.M. No. 08-8-7-SC)
 Cross claims and compulsory counterclaims not
asserted shall be deemed barred (A.M. No. 08-8-7-SC)
DETAINER
Prohibited
 Motion to hear and/or resolve affirmative defenses (A.M.
No. 08-8-7-SC)
 Motion for bill of particulars (A.M. No. 08-8-7-SC)
 Third party complaint
 Motion to admit late JA, position papers, other evidence,
except on ground of force majeure or acts of God
DETAINER
General Rule: All new matters in the answer are

deemed controverted, reply shall not be filed
Exception: reply to a counterclaim when an
actionable document is attached to the answer,
within 10 days from receipt of answer
Rejoinder: prohibited (A.M. No. 08-8-7-SC)
DETAINER
 Failure to file answer: Motion to declare in default is prohibited
 The court on its own initiative or upon manifestation by plaintiff
that period for filing of answer already lapsed, shall render
judgment as may be warranted by the facts alleged in the
complaint and its attachments, limited to what is prayed for
therein
 Court may reduce amount of damages and attorney’s fees
claimed (A.M. No. 08-8-7-SC)
 Same effect as failure of sole defendant to appear at preliminary
conference, CAM, JDR when necessary, and failure of sole
defendant to file preliminary conference brief (A.M. No. 08-8-7-SC)
DETAINER
 Preliminary Conference
 3 calendar days before, file and serve preliminary
conference brief
 Summary of admitted facts
 Summary of disputed facts and proposals for
stipulations
 Factual and legal issues
 List
of testimonial, object and other documentary
evidence in support of claims or defenses (A.M. No.
08-8-7-SC)
DETAINER
 Parties and counsel have duty to appear
 Same for CAM and JDR, if necessary
 Dilatory motions for postponement are prohibited
 Presumed dilatory when not based on acts of God,
force majeure or duly substantiated physical inability of
counsel or witness to personally appear
 Affidavit and medical proof (A.M. No. 08-8-7-SC)
DETAINER
 Representative may appear if authorized by SPA/Board
Resolution to:
 Enter into amicable settlement
 Submit to alternative modes of dispute resolution
 Enter into stipulations or admissions of facts and documents
 If foregoing not included in authority – ineffective and
party deemed absent
DETAINER
 If Plaintiff despite notice does not appear without just

cause (Preliminary Conference, JDR, CAM), or to file
preliminary conference brief
 Dismissal of complaint
 Defendant shall be entitled to judgment on
counterclaims as may be warranted by pleading and
evidence/attachments, limited to what is prayed for
(A.M. No. 08-8-7-SC)
DETAINER
 Preliminary Conference Order – may declare case

submitted for judgment, without need for position
papers
 Cannot be subject of a motion for reconsideration,
petition for certiorari, prohibition, mandamus
 CAM follows, 30 calendar days, inextendible
 JDR, if necessary, 15 calendar days, inextendible (A.M.
No. 08-8-7-SC)
DETAINER
 If no settlement, court require position papers

 Memoranda prohibited
 No JAs attached to position papers – waived if not in
Complaint/Answer
 Except:
if court allows late submission due to acts of
God/force majeure (A.M. No. 08-8-7-SC)
DETAINER
 Rendition of judgment – 30 days from receipt of

mediator’s/JDR report of failure to reach amicable
settlement
 Ifcourt finds necessary to clarify certain matters, may
require submission of additional judicial
affidavits/other evidence, 10 calendar days from
notice thereof
 Judgment rendered 15 calendar days from court’s
receipt of the last thereof/expiration of period to do
so (A.M. No. 08-8-7-SC)
DETAINER
 Judgment
 Immediately executory but appealable
 Rule 40, Notice of Appeal, proof of payment of appeal
fees, 15 calendar days from notice of judgment
 Motion for reconsideration or motion for new trial
against judgment on the merits prohibited
 Petition for relief from judgment prohibited (A.M. No. 08-8-
7-SC)
DETAINER
 remedy of a preliminary mandatory injunction while the

case is pending in the court of origin, available to both
forcible entry and unlawful detainer cases by motion to
be filed within 5 days from the filing of the complaint.
 To restore plaintiff in possession during pendency of
action
DETAINER
 The damages recoverable in ejectment cases only pertain to

arrears of rent, those plaintiff sustained as a mere possessor, or
those caused by the loss of use and occupation of the property.
These damages arise from the loss of the use and occupation of
the property, and not the damages which plaintiff may have
suffered but which have no direct relation to their loss of material
possession.
 Damages in the context of Rule 70 are limited to “rent” or “fair
market value” for the use and occupation of the property.
DETAINER
 Execution is a matter of right, but still upon motion

 To stay the immediate execution of the said judgment while the appeal
is pending before the Regional Trial Court:
 (1) the defendant perfects his appeal;
 (2) he files a sufficient supersedeas bond, within the period for the
perfection of the appeal, approved by the court of origin and executed
in favor of the plaintiff to pay the rents, damages, and costs accruing
down to the time of the judgment appealed from
DETAINER
 In the absence of a contract, defendant shall deposit with the

Regional Trial Court the reasonable value of the use and
occupation of the premises for the preceding month or period at
the rate determined by the judgment of the lower court on or
before the tenth day of each succeeding month or period.
 The supersedeas bond shall be transmitted by the court of origin,
with the other papers, to the clerk of the Regional Trial Court to
which the action is appealed.
 (3) he periodically deposits with the appellate court the rentals
under the contract, if any, as determined by the judgment of the
court of origin, which become due during the pendency of the
appeal.
DETAINER
 The failure of the defendant to comply with any of these

conditions is a ground for the outright execution of the
judgment, the duty of the court in this respect being “ministerial
and imperative.” - Motion for execution
DETAINER
 Exceptions: When the court of origin did not make any findings
with respect to any amount in arrears, damages or costs
against the defendant, no bond is necessary to stay the
execution of the judgment
 perfection of appeal sufficient to stay the execution, and the
court cannot order immediate execution premised on the failure
to file a supersedeas bond since no bond is necessary, there
being no back rentals adjudged in the appealed judgment.
DETAINER
 in the absence of an award for rental in arrears or damages

and without the fixing of reasonable rental or compensation for
the use of the premises in the judgment, there is no need to file
a supersedeas bond and the defendant is not obliged to
deposit any rental falling due during the pendency of appeal
in order to secure a stay of execution.
DETAINER
 Judgment of RTC on appeal – final, executory and

unappealable
 Provided there is grave abuse of discretion, remedy is
petition for certiorari under Rule 65 from denial of
motion for reconsideration
 MR of RTC decision on appeal not prohibited since
RTC rule is governed by Rule 40, ordinary rules, no
prohibition on MR against judgment
 The prohibition applies to summary procedure (A.M.
No. 08-8-7-SC)
CONTEMPT
 Contempt of court is some act or conduct

which tends to interfere with the business of the
court, by a refusal to obey some lawful order of
the court, or some act of disrespect to the
dignity of the court which in some way tends to
interfere with or hamper the orderly
proceedings of the court and thus lessens the
general efficiency of the same
CONTEMPT
 defiance of the authority, justice or dignity of

the court
 For an act to be considered contemptuous, it
must be clearly contrary or prohibited by the
order of the court (Harbour Centre Port Terminal, Inc. v. La
Filipina Uygongco Corp., G.R. Nos. 240984 & 241120, September 27, 2021, J.
Hernando)
CONTEMPT
 Direct contempt is committed when a person is

guilty of misbehavior in the presence of or so near a
court as to obstruct or interrupt the proceedings
before the same, including disrespect toward the
court, offensive personalities toward others, or
refusal to be sworn or to answer as a witness, or to
subscribe an affidavit or deposition when lawfully
required to do so.
CONTEMPT
 Indirect contempt or constructive contempt is that

which is committed out of the presence of the
court. Any improper conduct tending, directly or
indirectly, to impede, obstruct, or degrade the
administration of justice would constitute indirect
contempt.
CONTEMPT
In enforcement of execution for money judgment,

debtor does not pay. Will he be held in contempt?
 No,writ of execution is directed against the sheriff to
enforce the judgment. Rules provide that if payment
is not made, sheriff may attach/garnish properties
and sell it in a public auction where the proceeds will
pay for the money judgment. However, if writ is
directed against the defendant himself such as in
special judgments under Sec. 11, Rule 39, failure to
comply is contempt
CONTEMPT
 Improper language against the judge during

hearing – direct contempt
 Failed to attend hearing – indirect contempt
 Judgement to vacate, and refuse to vacate –
not contempt because he will instead be
ousted with the assistance of law enforcement.
But if after being ousted, he re-enters and
exercises acts of ownership, then indirect
contempt
CONTEMPT
 Section 5, Rule 7 provides that the submission of a false

certification or non-compliance with any of the
undertakings in the certificate against form shopping shall
constitute indirect contempt of court, without prejudice to
the corresponding administrative and criminal actions.
 If the acts of the party or his counsel clearly constitute
willful and deliberate forum shopping, the same shall be
ground for summary dismissal with prejudice and shall
constitute direct contempt, as well as cause for
administrative sanctions.
CONTEMPT
 Civil contempt is the failure to do something

ordered by a court to be done for the benefit
of a party. It is an offense against the party in
whose behalf the violated order is made.
(Harbour Centre Port Terminal, Inc. v. La Filipina
Uygongco Corp., G.R. Nos. 240984 & 241120,
September 27, 2021, J. Hernando)
CONTEMPT
 generally held to be remedial and civil in their

nature, they are proceedings for the
enforcement of some duty, and essentially a
remedy for coercing a person to do the thing
required.
 In general, civil contempt proceedings should
be instituted by an aggrieved party, or his
successor, or someone who has a pecuniary
interest in the right to be protected
CONTEMPT
A WPI was issued enjoining respondent from preventing

petitioner access to its rail lines and uploaders and from
using the port facilities in accordance with the MOA
they entered into. Petitioner claims the WPI was violated
since during the period of the WPI, 39 of its vessels were
denied access to the rail lines and unloaders and of use
in the port facilities, in violation of the WPI.
CONTEMPT
Assuming the act is contemptuous and petitioner

wants to hold respondent liable what contempt was
committed, civil or criminal?
 It is more civil, since the purpose of the contempt
petition is for the enforcement of the WPI. It is a
remedy resorted to preserve and enforce the rights
of respondents and to compel obedience to the
injunctive writ which was issued for their benefit.
CONTEMPT
If the Petition for contempt is filed and it is denied,

may it be appealed?
 Yes, because the petition for contempt is civil in
nature. An appeal from the decision dismissing
the same is not barred by double jeopardy.
CONTEMPT
Respondent alleged that there was failure to give

priority rights to use the berthing area to Petitioner
as it was not vacant and petitioner could not be
immediately accommodated, particularly since
Petitioner did not give its expected time of arrival
(ETA) to allow respondent to schedule their
birthing. Was there contempt committed?
CONTEMPT
No. Petitioner’s priority berthing rights is not

absolute. The same is conditioned on the MOA,
as provided in the WPII, which requires submission
of documents that provide the ETA, among
others. Petitioner’s documents did not contain the
ETA of its vessels for Respondent to schedule their
berthing. Petitioner’s berthing right is subject to
the condition that the berthing area is vacant.
Petitioner barges could not be immediately
accommodated.
CONTEMPT
It must wait until after the unloading of the third party vessel
has been completed or it has transferred to another
berthing area. It is only when no other vessel is available for
berthing at the time the berth application is filed that the
vessel with no ETA would be provisionally scheduled for
berthing. Since the failure to provide berthing rights was
due to petitioner’s failure to comply with the requirements
in the MOA, there is no contemp by respondent. (Harbour
Centre Port Terminal, Inc. v. La Filipina Uygongco Corp.,
G.R. Nos. 240984 & 241120, September 27, 2021, J.
Hernando)
CONTEMPT
 Criminal contempt is any conduct directed against the

authority or dignity of the court or a judge acting
judicially. (Harbour Centre Port Terminal, Inc. v. La Filipina
Uygongco Corp., G.R. Nos. 240984 & 241120, [September 27,
2021, J. Hernando)
 It is an act obstructing the administration of justice which tends
to bring the court into disrepute or disrespect.
 the proceedings to punish it are punitive. The purpose is to
preserve the power and vindicate the authority and dignity of
the court, and to punish for disobedience of its orders.
CONTEMPT
 proceedings are to be conducted in accordance with

the principles and rules applicable to criminal cases. The
State is generally the real prosecutor.
 The proceeding has been characterized as sui generis,
partaking of some of the elements of both a civil and
criminal proceeding, but really constituting neither.
CONTEMPT
 In general, criminal contempt proceedings

should be conducted in accordance with the
principles and rules applicable to criminal
cases, in so far as such procedure is consistent
with the summary nature of contempt
proceedings.
CONTEMPT
 The strict rules that govern criminal prosecutions

apply to a prosecution for criminal contempt,
that the accused is to be afforded many of the
protections provided in regular criminal cases,
and that proceedings under statutes governing
them are to be strictly construed. However,
criminal proceedings are not required to take
any particular form so long as the substantial
rights of the accused are preserved.
CONTEMPT
 Limited jurisdiction in contempt proceedings

 The power to declare a person in contempt of
court and in dealing with him accordingly is an
inherent power lodged in courts of justice
[September 27, 2021, J. Hernando)
CONTEMPT
General Rule: jurisdiction properly rests in only one

tribunal at a time with respect to a given
controversy
 Exceptions:
 (1) indirect contempt committed against an
inferior court may also be tried by the Regional
Trial Court of the place in which the lower court
is sitting, regardless of the imposable penalty;
CONTEMPT
 (2) a court may also punish contempt

committed against a court or judge constituting
one of its parts or agencies, as in the case of a
court composed of several coordinate
branches or divisions;
CONTEMPT
 (3) when the contemptuous act also constitutes

an act warranting professional disciplinary
proceeding, the proper court such as the
Supreme Court, which is other than the court
contemned may impose the disciplinary
measures;
CONTEMPT
 (4) when a judge is disqualified or disqualifies

himself on a contempt hearing or in the main
case, that warrants a transfer of the said case
to another court;
 (5) when the contemptuous act also constitutes
as a crime, it may be punishable in another
court having jurisdiction over the crime, other
than the court contemned
CONTEMPT
 Direct Contempt
 may be summarily adjudged by the court
without hearing.
 contumacious acts were committed in the
presence of or near a court or judge, who may
have actually witnessed or perceived the
commission of the punishable act or acts
 may not appeal therefrom, but may avail
himself of certiorari or prohibition
CONTEMPT
 Indirect Contempt
 As a general rule, publicly disclosing disbarment
proceedings may be punished with contempt
Exception: Fortun v. Quinsayas , G.R. No. 194578, 13
February 2013
 the filing of a disbarment complaint against Atty.
Fortun is itself a matter of public concern considering
that it arose from the Maguindanao Massacre case.
CONTEMPT
 The interest of the public is not on Atty. Fortun himself

but primarily on his involvement and participation as
defense counsel in the Maguindanao Massacre
case. The allegations in the disbarment complaint
relate to Atty. Fortun’s supposed actions involving the
Maguindanao Massacre case, which is a very high
profile case, where 30 of the 57 victims were
journalists.
CONTEMPT
 understandable that any matter related to the

Maguindanao Massacre is considered a matter of
public interest and that the personalities involved,
including Atty. Fortun, are considered as public
figures. The public's primary interest is in the event;
the public focus is on the conduct of the participant
and the content, effect and significance of the
conduct, not the participant's prior anonymity or
notoriety.
CONTEMPT
 Since the disbarment complaint was a matter of

public interest, it was found in Fortun that legitimate
media had a right to publish such fact under
freedom of the press. It would have been different if
the disbarment case against Atty. Fortun was about a
private matter as the media would then be bound to
respect the confidentiality provision of disbarment
proceedings.
CONTEMPT
 The Supreme Court concluded that the rule on

confidentiality of disbarment proceedings is not a restriction
on the freedom of the press. If there is a legitimate public
interest, media is not prohibited from making a fair, true, and
accurate news report of a disbarment complaint.
CONTEMPT
 Proceedings for indirect contempt may be initiated by

the court motu proprio or by verified petition.
 Verified petition – payment of filing fees, independent
action
 For indirect proceedings initiated by the court motu
proprio, the following must be complied with:
 there must be an order requiring the respondent to
show cause why he should not be cited for contempt;
CONTEMPT
 the respondent must be given the opportunity to

comment on the charge against him;
 there must be a hearing and the court must
investigate the charge and consider the respondent’s
answer; and - even if no response to show cause
 only if found guilty will the respondent be punished
accordingly
CONTEMPT
 Violation of injunctive writ.

 What is the remedy – Indirect Contempt.
 Indirect Contempt is denied, remedy? Appeal
because it is civil contempt and indirect contempt.
 If contempt is criminal and indirect, what is the
remedy?
 If found liable – can appeal
 If not found liable (denied) - certiorari
CONTEMPT
 Quasi—Judicial
 Regional Trial Court of the place wherein the
contempt has been committed shall have
jurisdiction over such charges as may be filed
therefor
 Unless, there is a law granting contempt powers
to these quasi-judicial entitles – example: NLRC
has contempt powers
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Provisional Remedies and

Special Civil Actions

 Ancillary or auxiliary remedies available during

 It is not sought for its own sake but to realize

A writ of preliminary attachment is a provisional

The provisional remedy of attachment is available

 Lien is a legal claim or charge on property, either real or

 A writ of preliminary attachment is a provisional remedy

 It also subjects the property of the debtor to the

In an action for sum of money with prayer for writ

No. The order granting the writ is an interlocutory order

(2) to acquire jurisdiction over the action by actual or

A filed a complaint for sum of money against B for unpaid

What is a deposit order?

 but rather, under Sections 5(g) and 6, Rule 135

Is the deposit order tantamount to a prejudgment of the

The Deposit Order of the RTC in this case is merely

 At the commencement of the action or at any time before

The RTC issued a writ of preliminary attachment in

No. Rule 57, Section 1 provides that the remedy of

Hence, with the cessation of civil case with the

 Grounds are exclusive

 Rule 57, Sec. 1(a) In an action for recovery of a

 Rule 57, Sec. 1(b) In an action for money or

 When the embezzlement of money or property

 it is only when the misappropriation was

 Rule 57, Sec. 1(C) In an action to recover the

In the ill-gotten wealth cases against Respondents

YES. The allegations fall within Section 1 (b) and

The allegation that the property was registered

 Rule 57, Sec. 1(d) In an action against a party

 Mere non performance of the obligation without

 described as embracing all multifarious means that

The affidavit attached to the application for writ of

NO. The affidavit, being the foundation of the

Absent any statement of other factual

May there be piercing the veil of corporate fiction

YES. A Company must be treated as a mere

There was a violation of the trust receipt

YES. In a civil case involving a trust receipt, the

A filed a complaint for Sum of Money and Damages

The affidavit in support of the application for the

Should the writ of preliminary attachment issue?

A filed a complaint against B for sum of money

B claimed it refused to pay the claim against it since it

Even assuming that B is wrong in refusing to pay A,

D operated a gasoline station. A, B and C, approached D,

The RTC granted the writ of preliminary

No. The allegations are insufficient to show fraud. There

 Rule 57, Sec. 1(e) In an action against a party

 Rule 57, Sec. 1(f) In an action against a party

 In actions in personam, such as a case for

 Quasi in rem actions are actions involving the

 In case the defendant does not reside and is

Section 17, Rule 14 Extraterritorial Service

NO. For the court to acquire jurisdiction in

An for collection of sum of money was filed

NO. The case is an action in personam, and

The operative act which converts the action into

Y sought damages against X for the improper