5spec Civ Axn.rem

San Beda College of Law 77

MEMORY AID IN REMEDIAL LAW

SPECIAL CIVIL ACTIONS

SPECIAL CIVIL ACTIONS UNDER THE RULES OF COURT:


INITIATED BY COMPLAINTS


INITIATED BY PETITIONS

Interpleader Expropriation Foreclosure of

Real Estate Mortgage Partition Forcible

Entry and Unlawful Detainer

Declaratory Relief Review of

Adjudication of the Comelec/COA

CertiorariProhibitionMandamus

Quo WarrantoContempt

VENUE The venue of special civil actions is governed by the general rules on venue, except when otherwise indicated by a particular rule under the rules on special civil action. (Rule 62-71)

Special civil actions are governed by the rules on ordinary civil actions, subject to the specific rules prescribed for a particular special civil action. (Sec 3-a Rule 1)

By virtue of Section 3 of Rule 1, the provisions of Rule 16 on motion to dismiss are applicable in special civil actions. (National Power Corp. vs. Valera, L-15295, Nov. 30, 1961).

RULE 62INTERPLEADER

Interpleader - that special civil remedy whereby a party who has property in his possession or an obligation to perform, either wholly or partially, but who claims no interest in the subject, or whose interest, in whole or in part, is not disputed by others, goes to court and asks that conflicting claimants to the property or obligation be

required to litigate among themselves in order to determine finally who is entitled to the

same. (Alvarez vs. Commonwealth, 65 PHIL 302)

REQUISITES FOR INTERPLEADER1. The plaintiff claims no

interest in the subject matter or his claim thereto is not disputed.

2. There must be at least two or more conflicting claimants.

3. The parties to be interpleaded must make effective claims.

4. The subject matter must be one and the same.

The peculiar characteristic of an interpleader is that there is no cause of action on the part of the plaintiff but only a threat of cause of action.

PURPOSE OF REMEDY: to protect a person not against double liability but against double vexation in respect to one’s liability. (Wack Wack Golf vs. Won, 70 SCRA 165)

The conflicting claimants, who are co-defendants in the action, must serve copies of their answers not only on the plaintiff but also upon their co-defendants. (REGALADO, p. 701)

An action in interpleader should be filed within a reasonable time after a dispute has arisen without waiting to be sued by either of the contending claimants. Otherwise, he may be barred by laches or undue delay. This is because after judgment is obtained against the plaintiff by one claimant, he is already liable to the latter.

Within the 15 days provided for filing the answer, each claimant may file a

REMEDIAL LAW COMMITTEE CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea EDPS : Martessa Nuylan, CharissimaeVentura, Jocelyn Zabala SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

78 2005 CENTRALIZED BAR OPERATIONS

MOTION TO DISMISS on the ff GROUNDS:

1. Impropriety2. Rule 16

The period to file the answer shall be tolled and if the motion is denied, the movant may file his answer within the remaining period, but not less than 5days from notice of denial. (sec.4)EFFECT WHEN A CLAIMANT FAILS TO PLEAD WITHIN THE TIME FIXEDThe court may, on motion, declare him in default and thereafter render judgment barring him from any claim in respect to the subject matter. (Sec.5)

The costs, expenses and attorneys fees incurred by the plaintiff in the action shall constitute a lien upon the subject matter and/or is recoverable from the defendant who loses in the action and is found by the court to have caused the unnecessary litigation. (Menzi & Co. vs. Bastida, 63 PHIL 16).

A defendant may file a counterclaim for interpleader against the plaintiff and a third party also claiming the subject-matter of the suit. (Wack Wack Golf vs. Won)

NOTE: Interpleader cannot be availed of to resolve the issue of breach of undertakings made by defendants which issues should be resolved in an ordinary civil action for specific performance or other relief (Beltran vs. PHHC, L-25138, Aug. 28, 1969).

INTERPLEADER INTERVENTION

An original action Ancillary action

Presupposes that plaintiff has no interest in the

subject matter of the action or has

Proper in any of the four situations: person having (a) legal interest in the matter in

interest therein in whole or in part

which is not disputed by the

other parties plaintiff has no interest in the

subject matter of the action or has interest therein in whole or in part

which is not disputed by the

other parties

litigation, or (b) success of either of the parties, or (c) an interest

against both, or (d) is so situated as to be adversely

affected by a distribution or

other disposition of property in the custody of the court or of an officer thereof.

(Rule 19, Sec. 1)

Defendants are being sued precisely to

interplead them

Defendants are original parties to the pending suits

RULE 63DECLARATORY RELIEF AND

SIMILAR REMEDIES

ORDINARY ACTION

DECLARATORY RELIEF

Writ of execution is available

No writ of execution

There is breach or violation of right

No breach or violation

Motion to dismiss – Rule 16 and 17

Additional ground for Motion to

Dismiss -Rule 63 Sec. 4

REQUISITES FOR DECLARATORY RELIEF

1. justiciable controversy2. adverse claim between real

parties in interest3. subject matter is a written

instrument or a statute or a law

4. relief sought is to determine the rights and duties under the statute

5. there must be no breach or violation of instrument or statute

6. no other available or sufficient remedy

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang (VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna MargaritaEres (VC-Logistics) Jonathan

Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)



Declaratory judgments are to be distinguished from the so-called advisory character, since they are res judicata and binding upon the parties and those in privity with them, and from decisions of abstract or moot questions since they must involve a real controversy. (16 Am. Jur. Declaratory Judgments)

Justiciability - the court must be satisfied that an actual controversy or the ripening of seeds of one, exists between parties, all of whom are sui juris and before the court, and the declaration sought will be a practical help in ending the controversy. (Feria, p.435)

The fact that the plaintiff’s desires are thwarted by its own doubts, or by the fears of others does not confer a cause of action. But the doubt becomes a justifiable controversy when it is translated into a claim of right which is actually contested.

Thus, the petitioner must show “an antagonistic assertion of a legal right on one side and a denial thereof on the other concerning a real, and not mere theoretical question or issue. (Delumen vs. RP, 94 Phil. 287)

To be RIPE FOR JUDICIAL DETERMINATION or to constitute the RIPENING SEEDS of a controversy, it must appear that, under the facts of the case, there is a threatened litigation in the immediate future, which litigation is imminent and inevitable unless prevented by the declaratory relief sought. (Tolentino vs. Board of Accountancy, 90 PHIL 83)

REFUSAL TO GRANT DECLARATORY RELIEF IS JUSTIFIED WHEN

1. the decision will not terminate the controversy or uncertainty giving rise to the action; or

2. the declaration is not necessary and proper under the circumstances (Rule 64, Sec 5)

The concept of a cause of action as “an act or omission by which a person violates the rights of another“ under ordinary civil action does not apply. In declaratory relief there must be NO breach or violation of the instrument or statute involved.

WHEN AN ACTION FOR DECLARATORY RELIEF WILL NOT LIE1. TO OBTAIN JUDUCIAL

DECLARATION OF CITIZENSHIP - because the instruments is not a contract in which another party or person is involved. It is a unilateral act not affecting anyone but himself.

2. TO ESTABLISH ILLEGITIMATE FILIATION AND DETERMINE HEREDITARY RIGHTS – not predicated on justiciable controversy because rights of succession are not transmitted until the death of decedent.

3. THE SUBJECT OF THE ACTION IS A COURT DECISION – since he may still avail of other remedies such as an appeal. Moreover, decision is already final and res judicata applies.

4. ACTION TO RESOLVE A POLITICAL QUESTION OR ISSUE – because determination is outside the periphery of the courts.

5. Those determinative of issues rather than involves a construction of definite status, rights and relations.

6. Terms of assailed ordinaces are not ambiguous or of doubtful meaning.

7. Contract or statute has been breached –action is merely to seek advisory opinion on a moot question.(enumeration from Feria, p.437)

A third-party complaint is supposed to seek contribution, indemnity,



subrogation or other relief from the third party defendant in respect to the claim of the plaintiff against him, and hence it is improper when the main case is for declaratory relief which purpose is mere interpretation and construction. (Commissioner of Customs vs. Cloribel, 77 SCRA 459)

However, when the complaint for declaratory relief alleges other matters, the court may grant such affirmative reliefs as the evidence may warrant. (Adlawan vs, IAC, 170 SCRA 165)

Compulsory counterclaim based on or arising form the same transaction, deed, or contract on which petition is based may be filed and entertained in declaratory proceedings because there is nothing in the nature of DR that proscribes the filing of counterclaim and Rules on OCA apply to SCA suppletorily. (Visayan Packing Corp. vs. Reparations Commission, 155 SCRA 542)

PARTIES1. Person (a) who is interested

under a Deed, will, contract or other written instrument; OR,(b) whose rights will be affected by a statute, executive order or regulation, ordinance or other government regulation

2. all persons who have a claim to be affected by the declaration (Sec.2)

Non-joinder of necessary parties is not a jurisdictional defect but may be ground for dismissal under Section 5.

Notary public, not a party to the contract is not entitled to file declaratory relief. (Tadeo vs. Prov. Fiscal of Pangasinan)

ACTIONS SIMILAR TO DECLARATORY RELIEF

1. reformation2. quieting of title3. removal of clouds4. consolidation (Art 1607, NCC)

In these cases the court has no discretion whether or not to entertain DR. JURISDICTION determined by the VALUE of Property.

CONVERSION TO ORDINARY ACTION (Sec.6)

WHEN IS CONVERSION PROPER? If after filing of petition for declaratory relief but before rendition of judgment, a breach or violation of the instrument or statute occurs, then the same may be converted into an ordinary action.

The law does not require that there shall be an actual pending case. It is sufficient that there is a breach of the law, an actionable violation to bar a complaint for declaratory relief. (Borja vs. Villadolid, 85 PHIL 36)

RULE 64 REVIEW OF JUDGMENTS AND

FINAL ORDERS OR RESOLUTIONS OF THE COMELEC AND THE COA.

TIME FOR FILING OF PETITIONThirty (30) days from notice of judgment, if motion for reconsideration is denied, must file within the remaining period but not less than 5 days in any event reckoned from notice of denial. MODE OF REVIEWThis petition should be filed exclusively to the Supreme Court

This refers to Rule 65 as an independent civil action and not a mode of appeal.

The order to comment under Section 6, Rule 64 in case the Supreme Court finds the petition sufficient in






form and substance is equivalent to summons in ordinary civil action.

EFFECT OF FILINGThe filing of a petition for certiorari shall not stay the execution of judgment, final order or resolution sought to be reviewed, unless the Supreme Court shall direct otherwise upon such terms as it may deem just.

Under this rule, the petitioner may apply for a restraining order and preliminary injunction from the Supreme Court to stay the execution of judgment or final order or resolution sought to be reviewed.

RULE 65CERTIORARI, PROHIBITION AND

MANDAMUS

REQUISITES OF CERTIORARI1. there must be a controversy;2. respondent is exercising

judicial or quasi-judicial functions;

3. respondents acted without or in excess of its jurisdiction or acted with grave abuse of discretion amounting to lack of jurisdiction; and

4. there must be no appeal or other plain, speedy and adequate remedy.

Writ of Certiorari – is a prerogative writ never demandable as a matter of right, never issued except in the exercise of judicial discretion.(Nunal vs. COA, 169 SCRA 356)

Special civil action for certiorari on Rule 65 should not be confused with Appeal by certiorari under Rule 45. SEE RULE 45 FOR DISTINCTIONS.

REQUISITES OF PROHIBITION

1. there must be a controversy;2. respondent is exercising

judicial, quasi-judicial or ministerial functions;

3. respondents acted without or in excess of its jurisdiction or acted with grave abuse of discretion amounting to lack of jurisdiction; and

4. there must be no appeal or other plain, speedy and adequate remedy.

Prohibiton must not be confused with Injunction SEE DISTINCTION ON THE TOPIC ON PROVISIONAL REMEDIES UNDER CIVIL PROCEDURE

Mandamus – a writ issued in the name of the State, to an inferior tribunal, corporation, board or person, commanding the performance of an act which the law enjoins as a duty resulting from an office, trust or station.

PURPOSE OF MANDAMUS: Mandamus is employed to compel the performance, when refused, of a ministerial duty, this being its main objective. It does not lie to require anyone to fulfill a contractual obligation or to compel a course of conduct, nor to control or review the exercise of discretion.

EXHAUSTION OF ADMINISTRATIVE REMEDY

GENERAL RULE: Mandamus will not issue when administrative remedies are still available.EXCEPTIONS:

1. If party is in estoppel; and2. Pure questions of law are

raised.

May mandamus be used to compel a discretionary duty?NO. It is only applicable to a ministerial duty. HOWEVER, it can be used to the extent of requiring the performance of a discretionary duty to act but not to require



performance of such duty in a particular manner.

MANDAMUS INJUNCTIONRemedial Preventive To set in

motion and to compel action

(ACTIVE)

To restrain motion or to

enforce inaction(CONSERVATIVE)

motion to dismiss - Rule

16 and 17

Additional ground for Motion to

Dismiss -Rule 63 Sec. 4

REQUISITES OF MANDAMUS1. there must be a clear legal

right or duty;2. act to be performed must be

practical - within the powers of the respondent to perform such that if the writ of mandamus was issued, he can comply with it, or else the essence will be defeated;

3. respondent must be exercising a ministerial duty - a duty which is absolute and imperative and involves merely its execution;

4. duty or act to be performed must be existing - a correlative right will be denied if not performed by the respondents; and

5. no appeal or other plain, speedy and adequate remedy in the ordinary course of law. Preliminary injunction must be sought.

MANDAMUS vs. QUO WARRANTO (2ND ground)Mandamus is the proper remedy when the respondent unlawfully excludes the petitioner from an office to which he is entitled without usurping, intruding into or unlawfully holding the office. On the other hand, if the respondent claims any right to the office and usurps, intrudes into or unlawfully holds against the petitioner, Quo Warranto is the proper remedy.

Mandamus may be combined with quo

warrantoThe complaint for mandamus is against the persons who exclude the plaintiff from the office in question, while the petition for quo warranto is directed against the person who actually holds the said office. (Burguete vs, Mayor, 94 PHIL 930)

RESPONDENTSJoinder as parties defendant/respondent with the court or judge or the persons interested in sustaining the proceedings is mandatory. (Semira vs. Enriquez, 84 PHIL 776)

The non-inclusion of the person interested in sustaining the proceedings renders the petition defective. (RP vs. Zurbano, 105 PHIL 409)

The principal defendant/respondent is

the judge as a person, not the court as an entity.

CERTIORARI

PROHIBITION

MANDAMUS

Directed against an entity or person exercising judicial or quasi-judicial function.

Directed against an entity or person exercising judicial, quasi-judicial or ministerial function.

Directed against an entity or person exercising ministerial function.

Entity or person is alleged to have acted:1. Without

jurisdiction;

2. In excess of jurisdiction;or

3. With grave

Entity or person is alleged to have acted:1. Without

jurisdic-tion;

2. In excess of jurisdic-tion; or

3. With

Entity or person is alleged to have unlawfully:1. Neglecte

d a ministerial duty; or

2. Excluded another






abuse of discretion amounting to lack or excess of jurisdiction

grave abuse of discretion amounting to lack or excess of jurisdic-tion.

from a right or office.

Purpose is to annul or nullify a proceeding.

Purpose is to have respondent desist from further proceeding.

Purpose is for respondent to:1. Do the

act required and

2. To pay damages.

This remedy is corrective—to correct usurpation of jurisdiction.

This remedy is preventive and negative—to restrain or prevent usurpation of jurisdiction.

This remedy is affirmative or positive (if the performance of a duty is ordered) or it is negative (if a person is ordered to desist from excluding another from a right or office).

HOW JURISDICTION ACQUIREDThe court acquires jurisdiction over the respondents with the service on them of its orders indicating its initial action on the petitioner or by their voluntary submission to such jurisdiction.

It is the allegations, not title of the petition determines the nature of special civil action.

Nature of Judicial or Quasi-judicial actsIt is the nature of the act to be performed rather than of the office, board, or body which performs it, that determines whether or nor it is the discharge of a judicial or quasi judicial function. It is enough if the

officers act judicially in making their decision whatever may be their public character. (Mun. Council of Lemery vs. Prov. Board of Batangas, 56 PHIL 260). An original action for certiorari, prohibition, mandamus, is an independent action and as such:

1. does not interrupt the course of the principal action;

2. does not affect the running of the reglementary periods involved in the proceedings;

3. does not stay the execution of judgment, unless a temporary restraining order or writ of preliminary injunction has been issued.

Jurisdictional Questions are questions having to do with an indifferent disregard of law, arbitrariness, and caprice or omission to weigh pertinent considerations, a decision arrived at without rational deliberation, as distinguished from questions that require digging into the merits and unearthing errors of judgment which is the office on the other hand of review under Rule 45 of the Rules (Dario vs. Mison, 176 SCRA 89).

GRAVE ABUSE OF DISCRETION An act of a court or tribunal may

only be considered as committed in grave abuse of discretion when the same was performed in capricious or whimsical exercise of judgment which is equivalent to lack of jurisdiction.

The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility.

Can the Court of Appeals award damages in mandamus proceedings?



YES. In conferring to the Court of Appeals original jurisdiction over the special civil action of mandamus, among others, as well as over the issuance of auxiliary writs of processes, it is clearly intended that said Court should exercise all the powers then possessed by it under the Rules of Court in relation to said action of mandamus and auxiliary writs, including the adjudication of damages to petitioners in the action in appropriate cases. (Vital-Gozon vs. CA 212 SCRA 235)

How executed? (Sections 1 and 9 of Rule 39)A writ of certiorari cannot be issued by an RTC against an administrative agency exercising quasi-judicial functions since the latter is of the same rank as the RTC.

A writ of prohibition may be issued by the RTC against administrative agencies only when what is sought to be prohibited is a ministerial function but not quasi- judicial function.

Sandiganbayan may likewise issue writs of certiorari prohibition and mandamus only in aid of its appellate jurisdiction.

”In aid of its appellate jurisdiction” - there exists a right to appeal the judgment on the merits to the Sandiganbayan

MOTION FOR RECONSIDERATION AS PRE-REQUISITEGENERAL RULE: a motion for reconsideration is an essential precondition for the filing of a petition for certiorari, prohibition, mandamus. It is a form of a plain, speedy, and adequate remedy. Its purpose is to give the court a quo the opportunity to correct itself.

EXCEPTION:1. if the assailed

judgment/order is a patent nullity

2. when there is extreme urgency

3. if the issue has been raised and promptly passed upon by the court

4. if the issue is purely a question of law

5. if for public purpose6. if suggested by the court a

quo

EFFECT OF FILING OF MOTION FOR RECONSIDERATIONIf a motion for reconsideration is filed, the period shall not only be interrupted but another 60 days shall be given to the petitioner within which to file the appropriate petition for certiorari or prohibition with the superior court. (SC Administrative Circular 002-03)

Are the remedies of APPEAL AND CERTIORARI EXCLUSIVE?GENERAL RULE: If after judgment the petition for certiorari is availed of when appeal is a plain, speedy and adequate remedy then the petition must fail for certiorari may not be resorted to as a substitute for appeal, in such a case, appeal is deemed abandoned.

EXCEPTIONS: Even when appeal is available, a writ of certiorari may be allowed:

1. when appeal does not constitute a speedy and adequate remedy;

2. when orders were issued either in excess of or without jurisdiction;

3. for certain special considerations as for public policy or public welfare;

4. when the order is a patent nullity;

5. when decision in the certiorari case will avoid future litigation.






Adequate Remedy - A remedy which is equally beneficial, speedy and sufficient, not merely a remedy which at sometime in the future will bring about a revival of judgment of the lower court complained of in the Certiorari proceeding, but a remedy which will promptly relieve the petitioner from the injurious effects of that judgment and the acts of the inferior court or tribunal (Pioneer Insurance Surety Corp. vs. Hontanosas, 78 SCRA 466).

Unlike in Rule 45, finding of fact of Court of Appeals is not conclusive or SC because this is original SCA.

Important Requirements:1. verified2. accompanied by certified

true copy of judgement or duplicate original (not xerox)

3. certification of non-forum shopping

If the petition is not sufficient in form and substance, the court may dismiss it outright.

The court may dismiss the petition after the filing and consideration of the comment without holding a hearing or requiring the submission of memoranda.It is not mandatory on court to receive evidence and hear petition.

RULE 66QUO WARRANTO

Section 1. Action by Government against Individuals

Quo Warranto - a proceeding or writ issued by the court to determine the right to use an office, position or franchise and to oust the person holding or exercising such office, position or franchise if his right is unfounded or if a person performed acts considered as grounds for forfeiture of said

exercise of position, office or franchise.

Actions of quo warranto against corporations with regard to franchises and rights granted to them, as well as their dissolution, covered under the former Rule 66 now fall under the jurisdiction of Securities and Exchange Commission and are governed by its rules. However, cases involving intra-corporate disputes and elections of directors and officers likewise covered under the former Rule 66, have now been transferred to the jurisdiction of the RTC. (Securities Regulation Code, Sec. 5.2).

QUO WARRANTO

MANDAMUS

Designed to try the right or title to the office, the right to the office itself is

disputed

Applicable only in cases where the right to the office is NOT in

dispute

GROUNDS( Sec 1 )1. A person who usurps,

intrudes into, or unlawfully holds or exercises a public office, position or franchise;

2. A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office;

3. An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act.

WHO MAY COMMENCE1. Government through Solicitor

General (Sec 4); or2. Individual claiming to be

entitled to the office position (Sec 5)

Determination of Sufficiency of Evidence depends upon the Discretion of the Solicitor



General because the institution of the action is expressly made to depend upon whether he has good reason to believe that he can establish by proof that the case is one of those specified in Section 1. (Amante vs. Hilado, 67 PHIL 338)

CLASSIFICATION OF QUO WARRANTO PROCEEDINGS1. MANDATORY – brought by the

Solicitor General or a public prosecutor, when:a. Directed by the Presidentb. Upon complaint or when he

has reason to believe that the cases for Quo Warranto can be established by proof.

2. DISCRETIONARY – brought by the Solicitor General or a public prosecutor at the request or upon the relation of another person provided there must be:a. Leave of courtb. Indemnity bond

Relator – is the person at whose request and upon whose relation the Sol. Gen. or public prosecutor brings an action for quo warranto with the permission of the court under section 3 & 4.

If plaintiff’s right to file the complaint is not proven, it becomes unnecessary for the Court to pass upon the right of the defendant who has a perfect right to the undisturbed possession of his office.HOWEVER, if complaint is brought by the Sol. Gen. or public prosecutor, the Court may pass upon the defendant’s right to office.

CONTENTS OF PETITION: (Sec 6)1. Name of person who claims

to be entitled thereto, if any

2. Averment of his right to office/position

3. Allegation that respondent is unlawfully in possession thereof

Quo Warranto in Electoral Proceeding vs. Quo Warranto under Rule 66

QUO WARRANTO

IN ELECTORAL

PROCEEDINGS

QUO WARRANTO

UNDER RULE 66

To contest the right of an

elected public officer to hold public office.

Prerogative writ by w/c the govt. can

call upon any person to show by

what title he holds a public office or

exercises a public franchise

An electoral proceeding under the Omnibus

Elections Code for the exclusive

purpose of impugning the election of a

public officer on the ground of ineligibility or

disqualification to hold the office

Three grounds: usurpation,

forfeiture, or illegal association

Petition must be filed w/in 10

days from the proclamation of the candidate

Presupposes that the respondent is already actually

holding office and action must be

commenced within one year from cause of ouster or right of petitioner to hold

office arose

May be filed by any registered

candidate for the same office and, who, even if the

petition prospers, would

not be entitled to that office.

The petitioner must be the government

or the person entitled to the office

and who would assume the same if his action succeeds.

Actual or compensatory damages are recoverable in quo warranto






proceedings under the Omnibus Election Code.

RIGHTS OF PERSONS ADJUDGED ENTITLED TO THE OFFICE (Sec 10)

1. Take upon himself the execution

2. Demand from respondent all the books and papers appertaining to the office Respondent’s neglect or

refusal is punishable by contempt

3. Bring an action for damages against respondent sustained by him by reason of the usurpation Must be commenced

within 1 YEAR after he entry of the judgment establishing the petitioner’s right to the office in question. (Sec 11)

LIMITATIONNo action against a public officer or employee for his ouster from office must be commenced WITHIN 1 YEAR after the cause of such ouster or the right of the petitioner to hold such office or position arose. (Sec 11)

The periods within which the quo warranto action should be brought are condition precedent to the existence of a cause of action.

The one-year period is not interrupted by the prosecution of any administrative remedy as, in quo warranto proceeding, no one is compelled to resort to administrative remedies since public interest requires that the right to public office should be determined as speedily as possible. (Palma-Fernandez vs. Dela Paz, 160 SCRA 751).

RULE 67EXPROPRIATION

EMINENT DOMAIN is the right of the State to acquire private property for public use upon the payment of just compensation.

EXPROPRIATION is the procedure to be observed in the exercise of the right of eminent domain.

WHEN IS EXPROPRIATION PROPER?

1. When owner refuses to sell2. When he agrees to sell but

an agreement as to price cannot be reached

CONTENTS OF COMPLAINT (Sec 1)

1. Right and purpose of expropriation

2. Description of the real or personal property sought to be expropriated

3. All persons owning or claiming to own or occupying any part or interest therein must be named as defendants, showing, so far as practicable, the separate interest of each defendant.

4. If the title of the property to be expropriated is in the name of the Republic of the Philippines or if the title is obscure or doubtful, averment to that effect shall be made in the complaint.

All properties can be expropriated except

1. Money2. Choses in action

Upon filing of the complaint or at anytime thereafter and after due notice to the defendant, the plaintiff shall have the right to take or enter upon the possession of the real property involved if he makes a Preliminary Deposit.

PURPOSE OF PRELIMINARY DEPOSIT UNDER SEC. 2



1. Provide damages if court finds plaintiff has no right to expropriate

2. Advance payment for just compensation

VALUE OF PRELIMINARY DEPOSITPersonal Property - provisionally ascertained and fixed by the courtReal Property - assessed value in tax return

DEFENSES AND OBJECTIONS (Sec. 3)OBJECTIONS If defendants has no objection:

File and serve a NOTICE OF APPEARANCE and MANIFESTATION to that effect;

Thereafter he shall be entitled to notice of all proceedings.

If defendants has objection, he must serve his answer.

No counterclaim, cross-claim or third-party complaint shall be alleged or allowed in the answer or any subsequent pleading.REASON: Expediency

A defendant waives all defenses and objections not so alleged but the court, in the interest of justice, may permit amendments to the answer to be made not later than 10 DAYS from the filing thereof.

Can the defendant be declared in default?NO. Failure to file an answer would result to the court’s judgment on the right to expropriate without prejudice to the right to present evidence on just compensation.

ORDER OF EXPROPRIATION Order declaring that the plaintiff

has lawful right to take the property

Issued when:1. Objections or defenses

against the right of plaintiff to expropriate are overruled, OR

2. No party appears to defend the case.

Ascertainment of compensation. (Section 5)COMMISSIONERS - at least 3 competent and disinterested persons to ascertain and report to the court the just compensation Objections to the ORDER OF

APPOINTMENT must be filed within 10 DAYS from service of the order and shall be resolved within 30 DAYS after ALL commissioners received the copies of the objections.

REPORT OF COMMISSIONERS (Sec. 7) must be filed with the court

within 60 DAYS from notice of their appointment.

shall not be effectual until the court shall have accepted from their report and rendered judgment in accordance with their recommendations.

Interested parties may file their objections to the report within 10 DAYS from notice thereof.

The appointment of commissioners is mandatory and cannot be dispensed with. (Meralco vs. Pineda)

Fees of commissioners shall be taxed as part of the costs of proceedings. (Sec.12)

JUST COMPENSATION is equivalent to the value of the property at the time of its taking or filing of complaint whichever comes first. It is the fair and full equivalent for the loss sustained by the defendant.






FORMULA for determination of just compensation

JS = Just CompensationFMV = Fair Market ValueCD = Consequential DamagesCB = Consequential Benefits

JS = FMV + CD – CBIf CB > CD then, JS= FMV

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. (Sec.6)

Section 9. Uncertain ownership; conflicting claims.

If there are conflicting claims on the property or uncertainty with respect to its ownership, the ownership shall be determined by the court to order any sum awarded to be deposited with. The court shall award any sum representing just compensation to be deposited with the Clerk of Court for the benefit of the person to be later adjudged in the case. There is no need for an independent action since the person entitled thereto will be adjudged in the same proceeding.

Section 10. Rights of plaintiff after judgment and payment.

WHEN IS TITLE VESTED IN EXPROPRIATION:

1. If personal property, upon payment of just compensation. (Sec. 10)

2. If real property, upon payment of just compensation and registration. (Sec. 13)

STAGES IN EXPROPRIATION1. Determination of the

authority of the plaintiff to exercise the power of eminent domain and the propriety of the exercise in the context of the facts involved; and

2. Determination of JUST COMPENSATION.

MULTIPLE APPEALSOrder of expropriation may be appealed by the defendant by record on appeal. This is an instance when multiple appeals are allowed because they have separate and/or several judgments on different issues. Examples:

a. issue on the right to expropriate

b. issue of just compensation

A final order sustaining the right to expropriate the property may be appealed by any party aggrieved thereby. (Sec.4 par.2)

An appeal does not delay the right of the plaintiff to enter upon the property of the defendant and appropriate the same for public use.

What is the effect if the order of condemnation was reversed?The owner shall repossess the property with the right to be indemnified for all damages sustained due to the taking.

WHEN MAY PLAINTIFF ENTER INTO POSSESSION OF PROPERTY?

1. Upon filing of complaint, serving notice to defendant and after depositing of assessed value of property for taxation purposes with authorized government depositary (Section 2)

2. Upon payment or tender of compensation fixed by the judgment and payment of the costs by plaintiff (Sec.10)

COST All costs shall be paid by the

plaintiff. EXCEPT:1. Cost of rival claimants

litigating their claims or;



2. Appeal is taken by the owner by property and the judgment is affirmed, in which case costs will be paid by owner.

RULE 68FORECLOSURE OF REAL ESTATE

MORTGAGE

JUDICIAL FORECLOSUR

E

EXTRAJUDICIAL FORECLOSURE

Requires court intervention

No court intervention necessary

There is only an equity of

redemption

Right of redemption exists

RULE 68 ACT 3135

PARTIES TO A JUDICIAL FORECLOSURE

1. debtor and creditor 2. mortgagee and mortgagor3. successors in interest4. junior encumberancer/s

CONTENTS OF THE COMPLAINT: (Sec. 2)

1. the date and due execution of the mortgage; its assignments, if any;

2. the names and residences of the mortgagor and the mortgagee;

3. a description of the mortgaged property;

4. 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

5. 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.

NATURE and PURPOSE

The remedy used for the satisfaction of any monetary obligation, which a person owes to another, by proceeding against a property used to secure said obligation.Its purpose is to cut off the rights of the owner of the property mortgaged used to secure the obligation and all rights acquired subsequent to said right.

EFFECT IF THE JUNIOR ENCUMBRANCER IS NOT IMPLEADEDa. His equity or right of redemption

is NOT affected or barred by the judgment of the court because he is merely a necessary party not an indispensable party (Sunlife Insurance vs. Diez).

b. The remedy of the senior encumbrancer is to file an INDEPENDENT proceeding to foreclose the right to redeem by requiring the junior encumbrancer to pay the amount stated in the order of execution or to redeem the property in a specified time.

There is no provision prohibiting the joinder of a first mortgagee in a complaint filed by the second mortgagee for the same purpose. In such a situation, the second mortgagee has to wait until after the debtor’s obligation to the first mortgagee has been fully settled and the excess of the proceeds of the sale, if any, will be given to the second mortgagee. (Alpha Insurance vs. Reyes, 106 SCRA 274)

If the first mortgagee is not joined as party, he may file a complaint in intervention. Moreover, even without this intervention, his rights are protected inasmuch as the mortgaged property remains subject to lien. (see BPI vs. De Coster, 47 PHIL 594)

JUDGMENT ON FORECLOSURE (Sec. 2)






judgment of the court ordering debtor to pay within 90-120 DAYS from the entry of judgment after ascertaining the amount due to the plaintiff.

Section 3. Sale of property; effect.

RULE 39 RULE 68

No need to confirm sale

Need to confirm sale

FORECLOSURE SALE (Section 3) Sale of the mortgaged

property ordered by the court after failure of the debtor to pay within 90-120 day period. [EQUITY OF REDEMPTION]

Rule 39 on sale of real estate will be followed

After confirmation of the sale, it shall divest the rights in the property of all the parties to the action.

Order of confirmationBefore the order of confirmation, even after the expiration of period of equity, the debtor can still pay his debt.

Mortgagor does not have the right to a notice of sale after failure to pay debt (Sec. 3) because:

a. said notice is not litigableb. issuance is ministerial

However, the mortgagor is entitled to a notice of hearing of the confirmation of the sale, OTHERWISE, THE ORDER IS VOID.

Due process requires that said notice be given so that the mortgagor:

a. can resist the motion; and b. be informed that his right to

redeem be cut-off. (Tiglao vs. Botones)

The Order of Confirmation is APPEALABLE.

REMEDY if mortgagor refuses to vacate the property- writ of possession

The issuance of a writ of possession in a foreclosure proceeding is not an execution of judgment within the purview of Section 6 of Rule 39 of the Rules of Court but is merely a ministerial and complementary duty of the court to put an end to the litigation which the court can undertake even after the lapse of five years, provided the statute of limitations and the rights of third person have not intervened in the meantime.

WHEN TITLE ACQUIREDThe buyer acquires title upon finality of the confirmation of sale.

The certificate of sale cannot be registered without the final order confirming the sale.

DEFICIENCY JUDGMENT - judgment rendered by the court holding defendant liable for any unpaid balance due to the mortgagee if the proceeds from the foreclosure sale does not satisfy entire debt.

JUDGMENT OF FORECLOSUR

E

DEFICIENCY JUDGMENT

Action Quasi in Rem

Action in Personam

INSTANCES WHERE COURT CANNOT RENDER DEFICIENCY JUDGMENT

1. Recto Law (Art. 1484 of the NCC)

2. Non-resident mortgagor unless there is attachment.

3. Sec. 7 Rule 86 when mortgagor dies, the mortgagee may file his claim with the probate court.

4. Mortgagee is a third person but not solidarily liable with the debtor.



Deficiency not executed before the death of mortgage debtor may be filed as a claim against the estate of the deceased. (Reyes vs. Rosenstock, 47 PHIL 784)

EQUITY OF REDEMPTION

RIGHT OF REDEMPTION

Right of the defendant

mortgagor to extinguish the mortgage and

retain ownership of the property by paying the

debt w/in 90-120 days after the

entry of judgment or

even after the foreclosure sale

but prior to confirmation

Right of the debtor, his

successor in interest or any

judicial creditor or judgment creditor of said debtor or

any person having a lien on the

property subsequent to the mortgage or deed of trust under w/c

the property is sold to redeem the property w/in 1 year from the

registration of the Sheriff’s certificate of foreclosure sale

Governed by Rule 68

Governed by Secs. 29-31 of Rule 39

There is no right of redemption in judicial foreclosure sale after the confirmation of sale except those granted by banks or banking institutions in favor of non-judicial persons as provided by the General Banking Act. (Government Insurance System vs. The CFI of Iloilo, 185 SCRA 19).

In extrajudicial foreclosure, the mortgagor has the right to redeem the property within one year from the registration of the deed of sale. HOWEVER, Sec. 47 of the General Banking Act provides that in case of extrajudicial foreclosure, notwithstanding Act 3135, juridical person shall have the right to redeem the property until, but not after, the registration of the certificate of foreclosure sale with the applicable Register of Deeds

which in no case shall be more than three months after foreclosure, whichever is earlier.

Where, after extrajudicial foreclosure of a real estate mortgage, the mortgagee purchased the same at the foreclosure sale, he shall be entitled to a writ of possession despite the fact that the premises are in the possession of a lessee whose lease has not yet terminated, unless the lease has been previously registered in the Registry of Property or the mortgagee had prior actual knowledge of the existence of the lease. Under Sec. 7 of Act 3135, as amended, the petition for such writ of possession shall be made under oath and filed as an ex parte motion in the registration or cadastral proceedings of the property. (Ibasco vs. Caguioa, G.R. No. 62619, August 19, 1986).

PROVISIONAL REMEDIES AVAILABLE TO MORTGAGEE IN CASE OF FORECLOSURE

1. Preliminary attachment of properties of the debtor not covered by the mortgage; and

2. Receivership of mortgaged property.

RULE 69PARTITION

PARTITION - is the process of dividing and assigning property owned in common among the various co-owners thereof in proportion to their respective interests in said property.

PARTITION MAY BE1. Judicial - procedure is under

Rule 69.2. Extrajudicial - no court

intervention required.

CONTENTS OF A COMPLAINT (Sec.1)






1. nature and extent of his title; 2. adequate description of the

real estate of which partition is demanded; and

3. join as defendants all other persons interested in the property.

PARTIESAll co-owners are indispensable parties.Creditors or assignees of co-owners may intervene and object to a partition effected without their concurrence. But they cannot impugn a partition already executed, UNLESS:

1. there has been fraud; OR2. in case it was made

notwithstanding a formal opposition presented to prevent it.

However, this right to intervene is not absolute and intervenor must show a legitimate and proper interest in the subject property. (De Borja vs. Jugo, 64 PHIL 464)

NON-INCLUSION OF A CO-OWNER

1. BEFORE JUDGMENT – not a ground for motion to dismiss; remedy is to file a motion to include the party

2. AFTER JUDGMENT – judgment is void because co-owners are indispensable parties.

Even though a complaint is defective for failure to make allegations necessary to constitute a cause of action but during the trial evidence offered establishes a cause action intended to be alleged, the defect is cured and cannot be made a ground of subsequent objection. This is in accordance with Section 5 of Rule 10. (Del Val vs. Del Val)

WHEN CAN PARTITION BE MADE?GENERAL RULE: It can be made anytime and the right to demand partition is IMPRESCRIPTIBLE. EXCEPTION: if a co-owner asserts adverse title to the property in which

case the period of prescription runs from such time of assertion of the adverse title.

NATURE OF PARTITIONThe partition of property may be made voluntarily (by agreement) or compulsorily under the Rules. Even if the parties had resorted to judicial partition, they may still make an amicable partition of the property.

There can be a judicial partition of personal property.

An action for partition and accounting under Rule 69, is in the nature of an action quasi in rem. Such an action is essentially for the purpose of affecting the defendant’s interest in a specific property and not to render a judgment against him. (Valmonte vs. CA, 252 SCRA 102).

TWO (2) ASPECTS OF PARTITION1. EXISTENCE of co-ownership2. ACCOUNTING (how to

actually partition the property)

Mode of Appeal: Record on Appeal

Judgement directing an accounting is appealable regardless of whether the accounting is the principal relief sought or a mere incident, and becomes final and executory within the reglementary period. (Miranda vs. CA, 71 SCRA 295)

JUDGMENT

CONTENTS OF

JUDGMENT

EFFECT OF

JUDGMENT

If actual PARTITION of property

is made

The judgment shall state definitely, by metes

and bounds and

adequate description,

the

To vest in each party to the act,

in severalty the portion

of the estate

assigned to him.



particular portion of the estate assigned to each party

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 the

assignment of the real estate to the party

making the payment

To vest in the party

making the payment the whole of the real estate free from any

interest on the part of the other parties to the action

If the property is sold and

the SALE 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

To vest the real estate

in the purchaser

or purchasers making the payment/s, free from the claims of any of

the parties to the action

ASSIGNMENT OF REAL PROPERTY if the real estate or a portion

thereof cannot be divided without prejudice to the interests of the parties

Requisites Of Assignment1. assignment is in favor of one

the parties not to 3rd

persons;2. payment to the other parties;

and3. other interested parties does

not ask the court that the property be sold instead.

The public sale of the property is MANDATORY if one of the parties interested asks that the property be sold instead of assigned to one of the parties. (Feria, p.601)

Report of commissioners interested parties may object to

the report within 10 days from notice;

not binding until the court has accepted it and rendered judgement thereon.

The appointment of Commissioners is mandatory unless there is an extrajudicial partition between the parties. They have the power to effect the partition BUT NOT to inquire into question of ownership or possession.

RULE 70FORCIBLE ENTRY AND UNLAWFUL DETAINER

Nature of Proceedings in accion interdictalEjectment cases are summary proceedings intended to provide an expeditious means of protecting actual possession or right to possession of property.

The Rule on Summary Procedure applies only in cases filed before the MTC. When the decision of the MTC is appealed to the RTC, the applicable rules are those of the latter court. (Refugia vs. CA, 258 SCRA 347)

Section 1. Who may institute proceedings.

A. Forcible entry: A person deprived of possession of any land or building by force, intimidation, threat, strategy or stealth.

B. Unlawful detainer:1. lessor, vendor, vendee or

other person against whom possession of any land or building is unlawfully withheld;

2. legal representatives or assigns of any such lessor,






vendor, vendee, or other person against whom possession of any land or building is unlawfully withheld.

Against whom may action be maintained?

1. The action of forcible entry and detainer may be maintained only against one in possession at the commencement of the action.

2. Tenant with right of possession may bring action against another tenant

3. Vendor may bring action for ejectment against vendee

upon failure to pay the installments.

4. Forcible entry and unlawful detainer lie even against the very owner of property.

THREE KINDS OF ACTION FOR RECOVERY OF POSSESSION

Amount of rents and damages claimed doe not affect jurisdiction of municipal court because they are only incidental or accessory to the main action (Lao Seng Hian vs. Lopez, 83 PHIL 617)

But if only rents or damages are claimed in an ordinary action, the action is personal and the amount claimed determines whether it falls within the jurisdiction of RTC or MTC.

From what date is the one-year period is counted? FORCIBLE ENTRY - from the date of entry or taking of possession by force, intimidation, etc.

UNLAWFUL DETAINER – a) from the date of the last

demand to vacate in case of non-payment of rent or non-compliance with the conditions of the lease.

b) from the date of the notice to quit, in case of a tacit renewal of the lease (tacita reconduccion), as when with the acquiescence of the lessor, the lessee continues enjoying the thing leased for fifteen days, as provided in Article 1670, NCC)

c) from the date of the revocation of the permit in case of occupancy on mere tolerance or under a temporary permit.

While it is true that the only issue in forcible entry or unlawful detainer action is the physical possession of the leased property, that is, possession de facto—not possession de jure, yet the court may go beyond that if only to prove the


ACCION INTERDIC-

TAL

ACCION PUBLICIA

NA

ACCION REINVIDICA

-TORIASummary action for

the recovery of

physical possession where the dispossession has not lasted for more than one year.

Ejectment proceeding under Rule 70; either forcible entry or unlawful detainer

A plenary action for

the recovery of

the real right of

possession when the

dispossession has

lasted for more than one year.

An action for the

recovery of ownership,

w/c necessarily includes the recovery of possession.

All cases of forcible

entry and unlawful detainer

irrespective of the

amount of damages or unpaid

rentals sought to

be recovered should be brought to the MTC.

However, if not

brought within 1

year, RTC has

jurisdiction.

RTC has jurisdiction if the value

of the property exceeds P20,000 outside Metro

Manila; P50,000 within Metro

Manila.MTC has

jurisdiction if the value

of the property does not

exceed the above

amounts.

RTC has jurisdiction if the value

of the property exceeds P20,000 outside Metro

Manila; P50,000

within Metro Manila.

MTC has jurisdiction if the value

of the property does not

exceed the above

amounts.


nature of possession. The court may receive evidence upon the question of title solely for the purpose of determining the character and extent of possession and damages for the detention (Consing vs. Jamandre, 64 SCRA 1).

FORCIBLE ENTRY

(Detentacion)

UNLAWFUL DETAINER

(Desahucio)

Possession of the land by the defendant is

unlawful from the beginning as

he acquires possession by

Force, Intimidation,

Strategy, Threat or Stealth

Possession is inceptively lawful but it becomes

illegal by reason of the termination of

his right to the possession of the property under his

contract w/ the plaintiff

No previous demand for the

defendant to vacate the premises is necessary

Demand is jurisdictional if the

ground is non-payment of rentals or failure to comply with lease contract

The plaintiff must prove that he was in prior

physical possession of the premises until he

was deprived thereof by the

defendant

The plaintiff need not have been in

prior physical possession

The 1 year period is generally

counted from the date of actual

entry on the land

Period is counted from the date of

last demand or last letter of demand

LESSOR MAY PROCEED AGAINST LESSEE ONLY AFTER DEMAND (Sec.2)

DEMAND contemplated under this section is jurisdictional. It is a two-fold demand

a. to pay AND vacate; OR

b. to comply with the conditions of the lease AND vacate.

A demand is a pre-requisite to an action for unlawful detainer when the action is “for failure to pay rent due or to comply with the conditions of his lease”, and not where the action is to terminate the lease because of the expiration of its term (Co Tiamco vs. Diaz, 75 PHIL 672).

The acceptance of rentals in arrears does not constitute WAIVER of default in payment of rentals (Clutario vs CA).

The term VACATE need not be stated if there are other terms definitively implying that the tenant should vacate. (Golden Gate Realty Corp. vs. CA)

HOWEVER, in La Campana vs CA, the court ruled that the rule in Golden Gate will not apply IF the term of the demand is ambiguous in nature.

HOW IS DEMAND MADE?1. personally2. posting it at the premises if

no person is found thereon (Viray vs CA)

3. substituted service4. registered mail (Co Keng Kian

vs CA)

GENERAL RULE:JUDGMENT of the MTC against the defendant in ejectment proceedings is IMMEDIATELY EXECUTORY. EXCEPTION: when the following concurs:

1. the defendant perfects his appeal,

2. he files sufficient supersedeas bond to pay the rents, damages and costs accruing down to the time of judgment appealed from; and

3. he deposits with the appellate court the amount of rent due from time to time under the contract or in the






absence of a contract, the reasonable value of the use and occupation of the premises on or before the 10th day of each succeeding month or period.

NOTE: SUPERSEDEAS BOND is required only if arrearages in rentals are awarded in the judgment by the court. (Once vs. Gonzales, 76 SCRA 258)

Preliminary prohibitory and mandatory injunction may be granted in forcible entry and unlawful detainer cases (Secs. 15 and 20 of Rule 70).

Is formal contract a prerequisite in unlawful detainer?The existence of a formal contract is NOT necessary in unlawful detainer. Even if there is no formal contract between the parties there can still be an unlawful detainer because implied contracts are covered by ejectment proceedings. Possession by tolerance creates an implied promise to vacate the premises upon the demand of the owner. (Peran vs. CFI of Sorsogon)

Questions to be resolved in an action for forcible entry are:First, who had actual possession over the piece of real property?Second, was the possessor ousted therefrom within one year from the filing of the complaint by force, threat, strategy or stealth?Third, does the plaintiff ask for restoration of possession? (Dizon vs.Concina)

Are third persons bound by a judgment in an ejectment case?

GENERAL RULE: YES provided his possession can be traced from the title of the defendant e.g. sublesseeEXCEPTIONS: 1. if the property was acquired

before the action;2. if the property is covered by a

Torrens Title and the certificate

does not state that the property is subject to a pending action and he bought the same in good faith.

The judgment binds and may be executed against sub-lessees who have not been impleaded since their right to stay is only subsidiary to that of the lessees. Once the right of the latter disappears, they have nothing to stand on, unless they claim an understanding or relation with the owner.

Judgment for ejectment cannot be enforced against a co-owner who was not made a party to the action. (Cruzcosa vs. Concepcion, 101 PHIL 147)

JUDGMENT (Sec. 17)The court can award DAMAGES in ejectment cases PROVIDED the damages refer only to:

a. the fair and reasonable value of the use and enjoyment of the property or the rent arising from the loss of possession;

b. arrears;c. liquidated damages since

they are already part of the contract

Atty’s fees cannot be considered damages. (De Laureano vs. Adil, 72 SCRA 148)

Ejectment suits are not suspended or barred by other actions (Wilson Auto Supply Corp. vs. CA, 208 SCRA 108) such as the following:

1. Injunction2. Consignation of rentals3. Accion publiciana4. Writ of possession case5. Quieting of title6. Specific Performance with

damages7. Reformation of instrument8. Reconveyance of property or

accion reinvindicatoria; annulment of sale and reconveyance



9. Annulment of sale, or title, or document; annulment of deed of sale with assumption of mortgage and/or to declare the same an equitable mortgage; annulment of sale with damages. (enumeration from Feria, p.615)

Ejectment case is a real action, which is not extinguished by the death of a party. (Cañiza vs. CA, 268 SCRA 640)

Immediate execution on appeal to Court of Appeals or Supreme Court (Sec.21)

The judgment of the RTC against the defendant shall be immediately executory, without prejudice to a further appeal that may be taken therefrom.

It is mandatory for the RTC to order execution of the appealed judgment upon failure of defendant to make the monthly deposit of curre4nt rentals. (Dehesa vs. Macalalag, 81 SCRA 543)

Prior notice of judgment is required for immediate execution. (Dy vs. CA, 195 SCRA 585)

RULE 71CONTEMPT

CONTEMPT DEFINEDContempt of court is a defiance of the authority, justice or dignity of the court; such conduct as tends to bring the authority and administration of the law into disrespect or to interfere with or prejudice parties litigant or their witnesses during litigation. (Halili vs. CIR, 136 SCRA 112).

PURPOSE AND NATURE OF POWERThe power to punish for contempt is inherent in all courts; its existence is

essential to the preservation of order in judicial proceedings and to the enforcement of judgments, orders, and mandates of the courts, and, consequently, to the due administration of justice.

The exercise of the power to punish for contempt has dual aspect, primarily, the proper punishment of guilty party for his disrespect to the courts, and, secondarily, his compulsory performance of some act or duty required of him by the court and which he refuses to perform.GROUNDS OF DIRECT CONTEMPT

a. misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings.

b. Disrespect towards the court.c. Offensive personalities

towards others. d. Refusal to be sworn or to

answer as witness or to subscribe an affidavit or deposition.

GROUNDS OF INDIRECT CONTEMPT

a. Misbehavior of an officer of a court in the performance of his official duties or in his official transactions.

b. Disobedience of or resistance to a lawful writ, process, order, or judgment. Unauthorized intrusion to any real property after being ejected;

c. Any abuse or any unlawful interference w/ the proceedings not constituting direct contempt.

d. Any improper conduct tending to degrade the administration of justice.

e. Assuming to be an attorney or an officer of the court w/o authority.

f. Failure to obey a subpoena duly served.






g. Rescue, or attempted rescue, of a person or property in the custody of an officer.

In cases of Disobedience of or resistance to lawful writ, process, order or judgments the following must be present:

1. Order must be specific;2. Order must be lawful; and3. Disobedience should be

willful.

If the court has jurisdiction when it rendered judgment, the same cannot be disobeyed however erroneous it may be.

CLASSES OF CONTEMPT

1) As to manner of commissionDIRECT INDIRECT

Summary in nature

Punished after being charged and

hearing

If committed against: a. RTC - fine not exceeding P2, 000 or imprisonment not exceeding (10) days or both. b. MTC - fine not exceeding P200 or imprisonment not exceeding (1) day, or both.

If committed against: a. RTC - fine not exceeding P30,000 or imprisonment not exceeding 6 months or both b. MTC - fine not exceeding P5,000 or imprisonment not exceeding (1) month or both

2) As to naturea. Civil Contempt – consists in

failing to do something ordered to be done by a court or a judge in a civil case for the benefit of the opposing party therein. defendant’s intent in

committing the contempt is immaterial since the purpose of civil contempt proceedings is remedial. Hence, good faith is not a defense.

purpose is primarily compensatory or remedial.

b. Criminal Contempt – is a conduct that is directed against the authority and dignity of a court or of a judge acting judicially, as in unlawfully assailing or discrediting the authority and dignity of the court or judge, or in doing a duly forbidden act. intent is necessary. purpose is primarily punitive. State is the real prosecutor.

Contempt proceedings are criminal in nature, even when the acts complained are incidents of civil actions, hence the mode of procedure and rules in evidence are assimilated as far as practicable to those adapted to criminal prosecutions. (Lee Yick Hon vs. Collector of Customs, 41 Phil. 548)

In special judgments under Rule 39 Section 11, the person required by the judgment to obey the same may be punished for contempt if he disobeys. NO contempt however lies in judgments for money (Section 9) and judgments for specific act (Section 10) under Rule 39.

TWO MODES OF COMMENCING A PROCEEDING FOR INDIRECT CONTEMPT

1. An order or other formal charge by the court requiring the respondent to show cause why he should not be punished for contempt: and

2. A verified petition charging indirect contempt with supporting particulars and certified true copies of the necessary documents and papers.

The first procedure applies only when the indirect contempt is committed against a court or judge possessed and clothed with contempt powers. The second mode applies if the contemptuous act was committed NOT against a court or a judicial officer with authority to punish contemptuous acts. (Nazareno vs Barnes, 136 SCRA 57)



Without charge and hearing, court acquires no jurisdiction to punish for indirect contempt. (Esparagoza vs Tan, 94 Phil 749)

Court may motu proprio institute proceedings for contempt. Such power is necessary for its own protection against an improper interference without the due administration of justice and not dependent upon the complaint of the parties litigant.

Formal information by the prosecuting officer is not necessary to begin contempt proceedings. All that Rule 71 requires is that there be a charge in writing duly filed in court and an opportunity to the person charged to be heard by himself or counsel.

REMEDIES TO CHALLENGE CONTEMPT JUDGMENTS

In Direct Contempt, the person adjudged in direct contempt may avail himself of the remedies of certiorari or prohibition. The execution of the judgment shall be suspended pending resolution of the petition, provided such person files a bond and conditioned that he will abide by and perform the judgment should the petition be decided against him.

In Indirect Contempt, the person adjudged for indirect contempt may appeal such judgment or final order to the proper court as in criminal cases. The execution of the judgment shall NOT be suspended until a bond is filed by the person adjudged in contempt.

The judgment against a person adjudged to be in contempt is immediately executory and can be stopped only by filing a bond.

Imprisonment until order complied (Section 8)

When the contempt consists in REFUSAL or OMISSION to do an act which is yet in the power of the respondent to perform, he may be IMPRISONED by order of the court UNTIL he performs it.

Proceeding when party released on bail fails to answer (Sec. 9)The court may: 1)issue another order of arrest or 2) may order the bond for his appearance to be forfeited and confiscated, or 3) BOTH. If there is no aggrieved party, the bond shall be liable and disposed of as in criminal cases.

When court may release respondent (Sec. 10)The court may discharge respondent when it appears that public interest will not be prejudiced by his release.

Contempt against quasi-judicial entities (Sec. 12)Rule 71 applies suppletorily to contempt committed against persons, entities, bodies or agencies exercising quasi-judicial functions. The RTC of the place wherein the contempt has been committed shall have jurisdiction over such charges as may be filed therefore.







VENUE AND JURISDICTION OF SPECIAL CIVIL ACTIONS

SPECIAL CIVIL ACTION

VENUE JURISDICTION

1. Interpleader Where the plaintiff or any of the principal plaintiff resides or where the defendant or any of the principal defendants resides

Note: The venue of special civil actions is governed by the general rules on venue, except as otherwise indicated in the particular rule for said special civil action.

MTC – where the value of the claim or the personal property does not exceed P200, 000 or P400,000 in Metro Manila or where the value of the real property does not exceed P20,000 or P50,000 in Metro Manila.

RTC – if the value exceeds the above amounts or if the subject matter is exclusively within the jurisdiction of the RTC (e.g. specific performance, recovery of title…)

2. Declaratory Relief

Where the petitioner or the respondent resides

RTC

3. Certiorari, Prohibition, Mandamus

RTC of the place where the respondent court, corporation, officer or person is situated;If petition is filed in the CA, SC or Sandiganbayan, in which case the location of the respondent is immaterial (Sec 4, Rule 65)

RTC, CA, SC, Sandiganbayan in aid of its appellate jurisdiction

4. Quo Warranto If filed with the SC, or CA, the location of respondent is immaterial or: RTC of place where the respondent resides or where any of the respondent resides; However, if the SG commences the action, it may be brought in the RTC in Manila, CA or SC (Sec 7, Rule 66)The Sandiganbayan has exclusive original jurisdiction on quo warranto arising or that may arise in cases file under EO 1,2,14, 14-A but this must be in aid of its appellate jurisdiction and not exclusive of the SC.

RTC, CA, SC

5. Expropriation Where the property is located in case the subject is a land.In cases where the subject of expropriation is personal property, venue is the place where the plaintiff or defendant resides

RTC (incapable of pecuniary estimation—Barangay San Roque vs. Heirs of Pastor, G.R. No. 138896, June 20, 2000)

6. Foreclosure Where the land or any part thereof is located

RTC (incapable of pecuniary estimation—Barangay San Roque vs. Heirs of Pastor, G.R. No. 138896, June 20, 2000)

7. Partition Where the real property or a portion

thereof is located. If the subject matter is personal property (Sec.

RTC(incapable of pecuniary estimation)


Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna MargaritaEres (VC-Logistics). Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

13, Rule 69), in the place where the plaintiff or the defendant resides

8. Forcible Entry/Unlawful Detainer

Where the property is located MTC

9. Contempt Where the Court involved is sitting MTC, RTC, CA, SC


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