SPECIAL CIVIL ACTIONS

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SPECIAL CIVIL ACTIONS

Ordinary Civil ActionsSpecial Civil ActionsSpecial Proceedings

A party sues another for the enforcement or protection of a right or the prevention or redress of a wrong

A civil action subject to specific/special rulesIt is a remedy by which a party seeks to establish a status, a right or a particular fact

Governed by the rules for ordinary civil actions

Ordinary rules apply primarily but subject to specific rulesGoverned by special rules and ordinary rules apply suppletorily

Involves two or more parties

Involves two or more partiesMay involve only one party

Initiated by complaintSome are initiated by complaint some by petition

Initiated by petition

Based on COASome special civil actions have no COANot based on COA (except habeas corpus)

SPECIAL CIVIL ACTIONS INITIATED BY COMPLAINTS (PIE-F2)SPECIAL CIVIL ACTIONS INITIATED BY PETITIONS (DR. CPM. QC)

1. Partition

2. Interpleader

3. Expropriation

4. Foreclosure of REM

5. Forcible Entry and Unlawful Detainer [FEUD]1. Declaratory Relief

2. Review of Adjudication of COMELEC/COA

3. Certiorari

4. Prohibition

5. Mandamus

6. Quo Warranto

7. Contempt

SPECIAL CIVIL ACTION

VENUEJURISDICTION

1. PartitionLocation of Real Property or a portion thereof;

If Personal Property- Plaintiffs or Defendants residence

RTC- incapable of pecuniary estimation

2. InterpleaderPlaintiffs or Defendants residenceMTC- value of claim or personal property does NOT exceed P300K or P400K in Metro Manila

Real Property: does not exceed P20K or P50K in Metro Manila

RTC- if value exceeds the amounts above or if exclusively within RTCs jurisdiction i.e. incapable of pecuniary estimation such as specific performance or recovery of title

3. ExpropriationLocation of Real Property or a portion thereof;

If Personal Property- Plaintiffs or Defendants residence

RTC- incapable of pecuniary estimation

4. Foreclosure of REMLocation of Real Property or a portion thereof;

RTC- incapable of pecuniary estimation

5. FEUDLocation of PropertyMTC

6. Declaratory Relief

Petitioner/Respondents residenceRTC

7. Certiorari, Prohibition, MandamusRTC of the place where RESPONDENT is situated

* If petition is filed with CA, SC or Sandiganbayan- location of respondent is immaterial

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

8. Quo WarrantoRTC of the place where RESPONDENT is situated

If petition is filed with CA, SC or Sandiganbayan- location of respondent is immaterial

IF SolGen commenced the action, should be in RTC-Manila, or CA, or SC

Sandiganbayan has exclusive original jurisdiction on quo warranto in cases filed by PCGG

RTC, CA, SC

9. ContemptWhere court involved is sittingMTC, RTC, CA, SC

I. THE DIFFERENT SPECIAL CIVIL ACTIONSA. Interpleader (Rule 62)

SECTION 1.When interpleader proper. Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no interest whatever in the subject matter, or an interest which in whole or in part is not disputed by the claimants, he may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves. SECTION 2.Order. Upon the filing of the complaint, the court shall issue an order requiring the conflicting claimants to interplead with one another. If the interests of justice so require, the court may direct in such order that the subject matter be paid or delivered to the court.

SECTION 3.Summons. Summons shall be served upon the conflicting claimants, together with a copy of the complaint and order.

SECTION 4.Motion to dismiss. Within the time for filing an answer, each claimant may file a motion to dismiss on the ground of impropriety of the interpleader action or on other appropriate grounds specified in Rule 16. The period to file the answer shall be tolled and if the motion is denied, the movant may file his answer within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of denial.

SECTION 5.Answer and other pleadings. Each claimant shall file his answer setting forth his claim within fifteen (15) days from service of the summons upon him, serving copy thereof upon each of the other conflicting claimants who may file their reply thereto as provided by these Rules. If any claimant fails to plead within the time herein fixed, the court may, on motion, declare him in default and thereafter render judgment barring him from any claim in respect to the subject matter.

The parties in an interpleader action may file counterclaims, cross-claims, third-party complaints and responsive pleadings thereto, as provided by these Rules.

SECTION 6.Determination. After the pleadings of the conflicting claimants have been filed, and pre-trial has been conducted in accordance with the Rules, the court shall proceed to determine their respective rights and adjudicate their several claims.

SECTION 7.Docket and other lawful fees, costs and litigation expenses as liens. The docket and other lawful fees paid by the party who filed a complaint under this Rule, as well as the costs and litigation expenses, shall constitute a lien or charge upon the subject matter of the action, unless the court shall order otherwise.

1. Requisites(1) The plaintiff claims no interest in the subject matter or his claim is not disputed;

(2) There must at least be two (2) or more conflicting claimants;

(3) The parties to be interpleaded must make effective claims; and

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

2. Decisional rulesInterpleader was found to be a proper action in an action of a lessee who does not know to whom to pay rentals due to conflicting claims on the property; (Pagkalinawan v. Rodas, 1948) and in an action by a bank where the purchaser of a cashier's check claims it was lost and another has presented it for payment. (Mesina v. IAC, 1986). It was however found to be improper in an action where defendants have conflicting claims against the plaintiff; (Beltran v. PHHC, 1969) and an action where one of the defendants had earlier sued the plaintiff and secured a judgment against him which has already become final. The action is barred by laches or unreasonable delay. (Wack Wack Golf and Country Club, Inc. v. Won, 1976)3. Procedural peculiarities Upon the filing of the complaint, the court shall issue an order requiring the conflicting claimants to interplead with one another. (Rules of Court, Rule 62, Sec. 2) The court may direct in the same order mentioned in the preceding paragraph that the subject matter of the suit be paid or delivered to the court. (Ibid)

The summons shall be accompanied by copies of the complaint and order mentioned in No. 1. The defendants may file a motion to dismiss on the ground of the impropriety of the interpleader action or on other appropriate grounds specified in Rule 16.

The defendants shall serve a copy of the answer not only to the plaintiff but also to their co-defendants who may file their reply thereto.

The effect of a failure to plead within the prescribed period is that, upon motion, the defendant will be declared in default and thereafter renders judgment barring him from any claim in respect to the subject matter. For example: There is a deposit of goods with a depository(warehouseman) and while in custody, CLAIMANT X appears and claims the goods as his own. Claimant Y also claims the goods. The Warehouse Receipts Law allows the warehouseman if he doesnt want to decide for himself who is the proper claimant, to file a complaint for interpleader.What happens if one of the defendants, say CLAIMANT Y did not file an answer? Claimant Y will be declared in default, and chances are the answering defendant (X), will be awarded the possession or ownership of the property. [This is different in ordinary civil actions, under Rule 9 on partial default, the non-answering defendant will be declared in default, while the answering defendant will go to trial and if judgment is rendered in favor of the answering defendant, it will benefit the non-answering defendant. There is an additional ground for motion to dismiss founded on IMPROPRIETY OF THE FILING OF THE COMPLAINT

Continuing with the example above, what if the warehouseman after denying the claim of X, the latter filed a complaint for replevin against the warehouseman. Can the warehouseman still file a complaint for interpleader against all the complaints? NO. That will be splitting the COA. The complaint for interpleader should be set up as a counterclaim in the answer.

RCBC v. Metro Container Corp, GR No. 127913, Sept. 13, 2001- If a property was mortgaged and right has been consolidated after failure to redeem, interpleader may no longer be filed by the lessee who pretends not to know to whom payment should be made, because the question in the unlawful detainer suit is limited to the question of physical or material possession of the premises. The issue of ownership is immaterial and the outcome of the case cannot in any way affect conflicting claims of ownership the filing of the interpleader suit is founded on the fact that the lessee did not know to whom payment should be made but due to the judgment ordering it to pay to the lessor, the reason for the interpleader action ceased. When the judgment became final and executory, the lessee has no more alternative left but to pay the rentals to the lessor.

B. Declaratory Relief and Similar Remedies (Rule 63)

SECTION 1.Who may file petition. 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 may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties thereunder.

An action for the reformation of an instrument, to quiet title to real property or remove clouds therefrom, or to consolidate ownership under Article 1607 of the Civil Code, may be brought under this Rule.

SECTION 2.Parties. All persons who have or claim any interest which would be affected by the declaration shall be made parties; and no declaration shall, except as otherwise provided in these Rules, prejudice in the rights of persons not parties to the action.

SECTION 3.Notice on Solicitor General. In any action which involves the validity of a statute, executive order or regulation, or any other governmental regulation, the Solicitor General shall be notified by the party assailing the same and shall be entitled to be heard upon such question.

SECTION 4.Local government ordinances. 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. If such ordinance is alleged to be unconstitutional, the Solicitor General shall be notified and entitled to be heard.

SECTION 5.Court action discretionary. Except in actions falling under the second paragraph of section 1 of this Rule, the court, motu proprio or upon motion, may refuse to exercise the power to declare rights and to construe instruments in any case where a decision would not terminate the uncertainty or controversy which gave rise to the action, or in any case where the declaration or construction is not necessary and proper under the circumstances.

If the judge will refuse, the remedy is file a certiorari under Rule 65.

SECTION 6.Conversion into ordinary action. If before the final termination of the case, a breach or violation of an instrument, or a statute, executive order or regulation, ordinance, or any other governmental regulation should take place, the action may thereupon be converted into an ordinary action, and parties allowed to file such pleadings as may be necessary or proper.

1.Requisites(1) There must be a justiciable controversy; (Obiles v. Republic [1953])(2) The controversy must be between persons whose interest is adverse;

(3) The parties must have legal interest in the controversy;

(4) The controversy must be ripe for judicial determination; (Board of Optometry v. Colet, 1996) and

(5) The petition must be filed before there is a breach or violation. (Rules of Court, Rule 63, Sec. 1)

2. Procedural peculiarities The petition must be filed before there is a breach of contract or violation of the statute or ordinance. (ibid)

Third-party complainant is not allowed. (Commissioner of Customs v. Cloribel, 1977) Except in actions for quieting of title, reformation of instrument, and consolidation of ownership in case of sales, the court action on an action for declaratory relief is discretionary. Thus, the court motu proprio or upon motion may refuse to exercise the power to declare rights and to construe instruments in any case where a decision would not terminate the uncertainty or controversy which gave rise to the action or in any case where the declaration or construction is not necessary under the circumstances. (Rules of Court, Rule 63, Sec. 5). [Ordinary procedures apply to these three actions, including jurisdiction] When a statute, executive order or any government regulation or ordinance is alleged to be unconstitutional, the Solicitor-General should be notified by the party assailing the same. (Ibid.,Sec. 3)*this is jurisdictional If the validity of a local government ordinance is in question, the prosecutor or attorney of the local government should be notified. (Ibid.,Sec. 4) No summons is issued upon filing of the petition. The court is given the discretion to dismiss outright the petition. Like interpleader, there is no COA here Rule 39 does not apply because what the court does is only to declare the rights and duties of the parties. There is no award.3. Declaratory relief improper in the following cases(1) to obtain judicial declaration of citizenship; (Singson v. Republic, 1968)(2) to seek relief on moot questions or to resolve hypothetical, abstract or theoretical questions, or to decide claims which are uncertain; (Lim v. Republic, 1971)(3) to resolve political issues or questions; (Dela Llana v. COMELEC, 1977)(4) to test the correctness or validity of a court decision; (Tanda v. Aldaya, 1956)(5) to determine hereditary rights; (Edades v. Edades, 1956))(6) when the petition is based upon the happening of a contingent event;

(7) when the petitioner is not the real party in interest; (Santos v. Aquino, [1953]) and

(8) when administrative remedies have not yet been exhausted. (Ollada v. Central Bank, 1962)Review of Judgments and Final Orders or Resolution of the COMELEC and COA (Rule 64)(1) A judgment or final order or resolution of the Commission on Elections and the Commission on Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65 (Sec. 2). The filing of a petition for certiorari shall not stay the execution of the judgment or final order or resolution sought to be reviewed, unless the SC directs otherwise upon such terms as it may deem just (Sec. 8). To prevent the execution of the judgment, the petitioner should obtain a temporary restraining order or a writ of preliminary injunction because the mere filing of a petition does not interrupt the course of the principal case.

(2) Decisions of the Civil Service Commission shall be appealed to the Court of Appeals which has exclusive appellate jurisdiction over all judgments or final orders of such commission (RA 7902).

(3) The petition shall be filed within thirty (30) days from notice of the judgment or final order or resolution sought to be reviewed. The filing of a motion for new trial or reconsideration of said judgment or final order or resolution, if allowed under the procedural rules of the Commission concerned, shall interrupt the period herein fixed. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of denial (Sec. 3).

(4) Note that petition for review from decisions of quasi-judicial agencies to the CA should be within 15 days and does not stay the decision appealed. Petition for review from decisions of the RTC decided in its appellate jurisdiction filed to the CA should be filed within 15 days and stays execution, unless the case is under the rules of Summary Procedure. Special civil actions of certiorari, prohibition, and mandamus, from Comelec and COA should be filed within 30 days, and does not stay the decision appealed. Bottomline: Decisions of quasi-judicial bodies are not stayed by appeal alone. Decisions of regular courts are stayed on appeal. Although in petition for review on certiorari to the SC via Rule 45, there is no express provision on effect of appeal on execution.

(2) The not less than 5 days provision for filing a pleading applies only to:

(a) filing an answer after a denial of a MtD;

(b) filing an answer after denial or service of a bill of particulars;

(c) filing an special civil action for certiorari from a decision of the Comelec or CoA after denial of a MfR or MNT. It does not apply to filing appeal from decisions of other entities after denial of a MfR or MNT. In such cases, either the parties have a fresh 15 days, or the balance.

Application of Rule 65 under Rule 64(1) Sec. 7, Art. IX-A of the Constitution reads, unless otherwise provided by the Constitution or by law, any decision, order or ruling of each commission may be brought to the Supreme Court on certiorari by the aggrieved party within 30 days from receipt of a copy thereof. The provision was interpreted by the Supreme Court to refer to certiorari under Rule 65 and not appeal by certiorari under Rule 45 (Aratuc vs. COMELEC, 88 SCRA 251; Dario vs. Mison, 176 SCRA 84). To implement the above constitutional provision, the SC promulgated Rule 64.

Distinction in the application of Rule 65 to judgments of the COMELEC and COA and the application of Rule 65 to other tribunals, persons and officersRule 64Rule 65

Directed only to the judgments, final orders or resolutions of the COMELEC and COA;Directed to any tribunal, board or officers exercising judicial or quasi-judicial functions; *broader

Filed within 30 days from notice of the judgment;Filed within 60 days from notice of the judgment;

The filing of a motion for reconsideration or a motion for new trial if allowed, interrupts the period for the filing of the petition for certiorari. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than 5 days reckoned from the notice of denial.The period within which to filed the petition if the motion for reconsideration or new trial is denied, is 60 days from notice of the denial of the motion.

C. Certiorari, Prohibition and Mandamus (Rule 65)

RULE 65RULE 45

Special Civil Action (Original Action)Mode of Appeal

Subject is interlocutory orderSubject is Final Judgment

Question of JurisdictionQuestion of Law

Filed w/in 60 days after notice of judgmentFiled within 15 days after notice of judgment

Motion for reconsideration requiredNo MR is required

Does not stay judgmentStays judgment

Party is the court or tribunal, or officerOriginal parties

May be filed in RTCFiled in SC

SECTION 1.Petition for certiorari. When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.

Ex. In an acquittal case

The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the paragraph of section 3, Rule 46.

SECTION 2.Petition for prohibition. When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require.

The petition shall likewise be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46.

SECTION 3.Petition for mandamus. When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there in no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent.

The petition shall also contain a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46.

Sec. 4. When and where to file the petition. The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the petition shall be filed not later than sixty (60) days counted from the notice of the denial of the motion.FRESH PERIOD RULE ANG MANDAMUS UG CERTIORARI SA ORDINARY TRIBUNALIf the petition relates to an act or an omission of a municipal trial court or of a corporation, a board, an officer or a person, it shall be filed with the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed with the Court of Appeals or with the Sandiganbayan, whether or not the same is in aid of the courts appellate jurisdiction. If the petition involves an act or an omission of a quasi-judicial agency, unless otherwise provided by law or these rules, the petition shall be filed with and be cognizable only by the Court of Appeals.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 Commission on Elections, in aid of its appellate jurisdiction.SECTION 5.Respondents and costs in certain cases. When the petition filed relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person, the petitioner shall join, as private respondent or respondents with such public respondent or respondents, the person or persons interested in sustaining the proceedings in the court; and it shall be the duty of such private respondents to appear and defend, both in his or their own behalf and in behalf of the public respondent or respondents affected by the proceedings, and the costs awarded in such proceedings in favor of the petitioner shall be against the private respondents only, and not against the judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person impleaded as public respondent or respondents.

Unless otherwise specifically directed by the court where the petition is pending, the public respondents shall not appear in or file an answer or comment to the petition or any pleading therein. If the case is elevated to a higher court by either party, the public respondents shall be included therein as nominal parties. However, unless otherwise specifically directed by the court, they shall not appear or participate in the proceedings therein.

SECTION 6.Order to comment. If the petition is sufficient in form and substance to justify such process, the court shall issue an order requiring the respondent or respondents to comment on the petition within ten (10) days from the receipt of a copy thereof. Such order shall be served on the respondents in such manner as the court may direct, together with a copy of the petition and any annexes thereto.

In petitions for certiorari before the Supreme Court and the Court of Appeals, the provisions if section 2, Rule 56, shall be observed. Before giving due course thereto, the court may require the respondents to file their comment to, and not a motion to dismiss, the petition. Thereafter, the court may require the filing of a reply and such other responsive or other pleadings as it may deem necessary and proper.

Sec. 7. Expediting proceedings; injunctive relief. The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the course of the principal case, unless a temporary restraining order or a writ of preliminary injunction has been issued, enjoining the public respondent from further proceeding with the case.

The public respondent shall proceed with the principal case within ten (10) days from the filing of a petition for certiorari with a higher court or tribunal, absent a temporary restraining order or a preliminary injunction, or upon its expiration. Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge.

Sec. 8. Proceedings after comment is filed. After the comment or other pleadings required by the court are filed, or the time for the filing thereof has expired, the court may hear the case or require the parties to submit memoranda. If, after such hearing or filing of memoranda or upon the expiration of the period for filing, the court finds that the allegations of the petition are true, it shall render judgment for such relief to which the petitioner is entitled.

However, the court may dismiss the petition if it finds the same patently without merit or prosecuted manifestly for delay, or if the questions raised therein are too unsubstantial to require consideration. In such event, the court may award in favor of the respondent treble costs solidarily against the petitioner and counsel, in addition to subjecting counsel to administrative sanctions under Rules 139 and 139-B of the Rules of Court.

The Court may impose motu proprio, based on res ipsa loquitur, other disciplinary sanctions or measures on erring lawyers for patently dilatory and unmeritorious Petitions for Certiorari.

SECTION 9.Service and enforcement of order or judgment. A certified copy of the judgment rendered in accordance with the last preceding section shall be served upon the court, quasi-judicial agency, tribunal, corporation, board, officer or person concerned in such manner as the court may direct, and disobedience thereto shall be punished as contempt. An execution may issue for any damages or costs awarded in accordance with section 1 of Rule 39.

CERTIORARI

RequisitesA tribunal, board or officer exercises judicial or quasi-judicial function;

a. It or s/he acts without or in excess of jurisdiction or with grave abuse of discretion; and

b. There is no appeal nor plain, speedy and adequate remedy in the ordinary cause of law.

1. Without jurisdiction absence of a legal power to determine a case.

2. Excess of jurisdiction the court has jurisdiction but fails to comply with the conditions prescribed for its exercise. (Leung Ben v. OBrien, [1918]; Tengco v. Jocson, [1922]3. Grave abuse of discretion judicial power is exercised capriciously, arbitrarily or despotically due to passion or personal hostility. (Filinvest Credit Corporation v. IAC, 1988)When not properCertiorari is not a proper remedy if appeal is available or it is lost through the fault of the petitioner, (Dillena v. CA, 1988; Velasco Vda. De Caldito v. Segundo, 1982) except:

(1) appeal is not a speedy and adequate remedy; (Saludes v. Pajarillo, [1947])(2) order is issued without or in excess of jurisdiction; (PNB v. Florendo, 1992)(3) in consideration of public welfare and for the advancement of public policy; (Jose v. Zulueta, 1961)(4) order is a patent nullity; (Marcelo v. De Guzman, 1982)(5) to avoid future litigation; (St. Peter Memorial Park, Inc. v. Campos, Jr., 1975)(6) to avoid a miscarriage of justice;(Escudero v. Dulay, 1988)(7) in furtherance of the broader interest of justice and equities. (Marahay v. Melicor, 1990)Exceptions to requirements before certiorari can be availed ofBefore certiorari can be availed of, petitioner should first file a motion for reconsideration of the challenged order, resolution or decision, (Butuan Bay Wood Export Corporation v. CA, 1980) except in the following cases:

(1) in the interest of justice and public welfare and advancement of public policy; (Jose v. Zulueta)(2) order was issued without or in excess of jurisdiction; (Philippine Consumers Foundation, Inc. v. National Telecommunications Commission, 1983)(3) order is a patent nullity (Aquino v. NLRC, 1993) as when petitioner's right to due process was denied in the lower court (Bache and Co. (Phil.), Inc. v. Ruiz, 1971) or petitioner has been unlawfully deprived of his right to appeal; (NEA v. CA 1983)(4) when relief is extremely urgent, there is no more need to wait for the resolution of a motion for reconsideration; (Vda. de Sayman v. CA, 1983)(5) when the questions raised and passed upon in the lower court are the same as those to be passed upon in the certiorari case; (Peroxide Philippines Corporation v. CA, 1991) and

(6) question is purely of law. (Central Bank v. Cloribel, 1972)Requirements regarding the extrinsic sufficiency of the petition(1) it must be verified; (Rules of Court, Rule 65, Sec. 1)(2) accompanied by a certificate of non-forum shopping; (Ibid.)(3) accompanied with certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto; (Ibid)(4) proof of service pursuant to Rule 13, Section 1; and

(5) if not filed and served personally, then, it should be accompanied by a written explanation why personal service was not resorted to. (Rules of Court, Rule 13, Sec. 11)DecisionsAs a general rule, certiorari is not a proper remedy to assail the order of the trial court denying a demurrer to evidence in a civil case (if granted: acquittal of the accused, if denied: proceedings will go on). (Asian Trading Corporation v. CA, 1999) Motion for reconsideration and, in case of denial, appeal, are the proper remedy.

Prohibition

Requisites1. There is a controversy2. respondent is exercising judicial, quasi-judicial or ministerial functions

3. respondent acted without or in excess of jurisdiction or acted with grave abuse of discretion amounting to lack of jurisdiction

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

Mandamus

Requisites(1) a tribunal, corporation, board, officers or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty arising from an office, trust, or station or unlawfully excludes another from the use or enjoyment of a right or office to which the plaintiff is entitled; and

(2) there is no other plain, speedy and adequate remedy in the ordinary course of law.

Decisional rules Mandamus is an appropriate remedy to compel a corporation to grant its monthly salaried employees holiday pay. (Mantrade/FMMC Division Employees and Workers Union v. Bacungan, 1986) Mandamus is not proper to compel a school to enroll a student for academic deficiencies because this involves the exercise by the school of discretion under academic freedom. (UP v. Ayson, 1989) Mandamus will not lie against the President or Congress because of the principle that the judiciary is a co-equal department of the latter. (Suanes v. Chief Accountant of the Senate, 1948, Resolution on the MR) Failure to exhaust administrative remedies is generally fatal to an action for mandamus. (Aquino v. Mariano, 1984) The exception is when the question is purely of law. (One Heart Sporting Club, Inc. v. CA, 1981) Although the rules say that its only in mandamus that there could be an award of damages, there can also be an award in prohibition and certiorariPeculiarity in Procedure (CPM)

Court can dismiss outright if not sufficient in form and substance No summons is issued to respondents, instead the receipt of order to comment by the respondent is the time when the court acquires jurisdiction over his/her/its person. The respondent must comment within the period fixed in the order, unlike in ordinary rules where it is provided, (15 days to answer). There is no such thing as default when respondent failed to comment. The court will continue to hear the petition and render judgment thereon despite the absence of comment. This is possible because usually there are no factual issues involved. The issues delve only on jurisdiction. CPM is not limited to interlocutory orders, under Rule 41, there are instances when an order even if final is not subject to appeal, hence the remedy is Rule 65.RULE 41. Section 1. xxx No appeal may be taken from:1. An order denying a petition for relief or any similar motion seeking relief from judgment;2. An interlocutory order;3. An order disallowing or dismissing an appeal;4. 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 consent5. An order of execution6. 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; and7. An order dismissing an action without prejudice.In any of the foregoing circumstances, the aggrieved party may file an appropriate special civil action as provided in Rule 65.

There is always a public and private respondent. i.e. when the issue is the award of damages. Public respondent is not allowed to defend himself openly. So if the public respondent is the court, the judge could not file separately his own pleadings, he could not even appeal before the court to defend the validity of the order/judgment. Everything is left to the private respondent and it is the duty of the private respondent to defend the validity, propriety of the order or judgment that has been assailed.CERTIORARI

PROHIBITIONMANDAMUS

Directed vs. an entity or person exercising JUDICIAL/QUASI-JUDICIAL function

Directed vs. an entity or person exercising JUDICIAL/QUASI-JUDICIAL/MINISTERIAL functionDirected vs. an entity or person exercising MINISTERIAL function

Allegation that respondent acted W/O or in excess of jurisdiction OR GRAVE ABUSE of discretion amounting to lack or excess of jurisdiction

Allegation that respondent acted W/O or in excess of jurisdiction OR GRAVE ABUSE of discretion amounting to lack or excess of jurisdictionAllegation that respondent unlawfully neglected a ministerial duty OR excluded another from a right or office

Purpose: Annul a proceedingFor respondent to desist from further proceeding *to prevent

For respondent to DO the act required and Pay damages *to compel

Corrective remedy

Preventive and negative remedyAffirmative or Positive remedy

Discretionary actsDiscretionary and ministerial actsMinisterial acts

E. Quo Warranto (Rule 66)SECTION 1.Action by Government against individuals. An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against:

(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise;

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

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

SECTION 2.When Solicitor General or public prosecutor must commence action. The Solicitor General or a public prosecutor, when directed by the President of the Philippines, or when upon complaint or otherwise he has good reason to believe that any case specified in the preceding sections can be established by proof, must commence such action.

SECTION 3.When Solicitor General or public prosecutor may commence action with permission of court. The Solicitor General or a public prosecutor may, with the permission of the court in which the action is to be commenced, bring such an action at the request and upon the relation of another person; but in such case the officer bringing it may first require an indemnity for the expenses and cost of the action in an amount approved by and to be deposited in the court by the person at whose request and upon whose relation the same is brought.

SECTION 4.When hearing had on application for permission to commence action. Upon application for permission to commence such action in accordance with the next preceding section, the court shall direct that notice be given to the respondent so that he may be heard in opposition thereto; and if permission is granted, the court shall issue an order to that effect, copies of which shall be served on all interested parties, and the petition shall then be filed within the period ordered by the court.

SECTION 5.When an individual may commence such an action. A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by the another may bring an action therefor in his own name.

SECTION 6.Parties and contents of petition against usurpation. When the action is against a person for usurping a public office, position or franchise, the petition shall set forth the name of the person who claims to be entitled thereto, if any, with an averment of his right to the same and that the respondent is unlawfully in possession thereof. All persons who claim to be entitled to the public office, position or franchise may be made parties, and their respective rights to such public office, position or franchise determined, in the same action.

SECTION 7.Venue An action under the preceding six sections can be brought only in the Supreme Court, the Court of Appeals, or in the Regional Trial Court exercising jurisdiction over the territorial area where the respondent or any of the respondents resides, but when the Solicitor General commences the action, it may be brought in a Regional Trial Court in the City of Manila, in the Court of Appeals, or in the Supreme Court.

SECTION 8.Period for pleadings and proceedings may be reduced; action given precedence. The court may reduce the period provided by these Rules for filing pleadings and for all other proceedings in the action in order to secure the most expeditious determination of the matters involved therein consistent with the rights of the parties. Such action may be given precedence over any other civil matter pending in the court.

SECTION 9.Judgment where usurpation found. When the respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a public office, position or franchise, judgment shall be rendered that such respondent be ousted and altogether excluded therefrom, and that the petitioner or relator, as the case may be, recover his costs. Such further judgment may be rendered determining the respective rights in and to the public office, position or franchise of all the parties to the action as justice requires.

SECTION 10.Rights of persons adjudged entitled to public office; delivery of books and papers; damages. If judgment be rendered in favor of the person averred in the complaint to be entitled to the office he may, after taking the oath of office and executing any official bond required by law, take upon himself the execution of the office, and may immediately thereafter demand of the respondent all the books and papers in the respondent's custody or control appertaining to the office to which the judgment relates. If the respondent refuses or neglects to deliver any book or paper pursuant to such demand, he may be punished for contempt as having disobeyed a lawful order of the court. The person adjudged entitled to the office may also bring action against the respondent to recover the damages sustained by such person by reason of the usurpation.

SECTION 11.Limitations. Nothing contained in this Rule shall be construed to authorize an action against a public officer or employee for his ouster from office unless the same be commenced within one (1) year after the cause of such ouster, or the right of the petitioner to hold such office or position, arose; nor to authorize an action for damages in accordance with the provisions of the next preceding section unless the same be commenced within one (1) year after the entry of the judgment establishing the petitioner's right to the office in question.

SECTION 12.Judgment for costs. In an action brought in accordance with the provisions of this Rule, the court may render judgment for costs against either the petitioner, the relator, or the respondent, or the person or persons claiming to be a corporation, or may apportion the costs, as justice requires.

DefinitionA quo warranto is a prerogative writ by which the Government can call upon any person to show by what warrant he holds a public office or exercises a public franchise. (3 Moran 208 [1970])Quo Warranto as distinguished from election contestIf the dispute is as to the counting of votes or on matters connected with the conduct of the election, quo warranto is not the proper remedy but an election protest. (Caesar v. Garrido, [1929]) When the dispute is on the ineligibility of a person sought to be ousted, quo warranto is the proper action. (Fortuno v. Palma, 1987)Peculiarities of proceedings When the Solicitor General or a public prosecutor commences the action at the instance of another person, leave of court must first be secured.

The motion for leave must be set for hearing with notice to the respondent so that he may be heard; and

The court issues the order allowing the filing of the action within the period fixed therein. (So the court here is given the prerogative to reduce the filing of pleading)

This is one proceeding which violates the rule on splitting the COA. The petition for quo warranto is designed for the purpose of determining who between the contestants is entitled to hold an office, either a corporate office or a public office. Once the court has decide this issue, the law authorizes the winning party to file a subsequent complaint for recovery of damages arising from the usurpation of office.

Although no made mention regarding observation of hierarchy of courts unlike in Rule 65, this has to be applied, according to SC decisions.

FERDINAND TOPACIO vs. ASSOCIATE JUSTICE GREGORY ONG and OFFICE OF SOLICITOR GENERAL Gr. No. 179895 December 18, 2008

Facts: Ong filed a petititon for correction of an entry in his certificate of birth before the RTC in compliance with the SC decision in Kilosbayan Foundation v. Ermita on July 3, 2007 enjoining him from accepting appointment to the position of Associate Justice of Supreme Court until have shown through adversarial proceedings that he is a natural born citizen.

In the present case, Petitioner Topacio filed a petition for certiorari and prohibition to prevent Ong from exercising powers, duties and responsibilities as a Sandiganbayan Associate Justice.

On September 5, Topacio filed a letter-complaint praying that the Solicitor General to bring in a quo warranto proceeding against Ong in the latters capacity as an incumbent Sandiganbayan member. Petitioner invoked par. 1, Sec. 7, Art. VIII of the Constitution and the decision in Kilosbayan Foundation v. Ermita. Ongs birth certificate and bar records evidenced his Chinese citizenship. Petitioner avers that Ong should immediately vacate his post bearing out his status as a naturalized Filipino citizen.

The Solicitor General informed the petitioner that it cannot act favorably on the latters request for filing the quo warranto suit until the resolution of the RTC case is decided by final judgment.

In his answer, Ong contends that in Kilosbayan Foundation v. Ermita, he voluntarily refused to accept the appointment in the Supreme Court and said decision does not annul his appointment but merely enjoined him from accepting the post, there being no definite pronouncement that he is not a natural born citizen.

Ong then filed his manifestation and motion to dismiss before the RTC alleging that he was already recognized as a natural born citizen by a court decision. He attached the said decision in his birth certificate.

Ong further claims that the present petition is devoid of merit, or at the very least, it must await the final disposition of the RTC case which to him involves a prejudicial issue.

Meanwhile, the solicitor general alleges that the present petition is defectively verified.

Issues:1) WON the SolGen committed grave abuse of discretion in refusing the filing of quo warranto suit

2) WON the initiation by the petition for certiorari and prohibition is proper to challenge the title to public office of Justice Ong

Held: 1) No. There was no grave abuse of discretion in deferring an action on the filing of a quo warranto suit until after the RTC case has been decided with finality. Rule 66 provides that an action for usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of Republic of the Philippines against a public officer who does or suffers an act which by the provision of law, constitutes a ground for forfeiture of his office. The Solgen when upon complaint or otherwise he has good reason to believe that any case specified in the preceding section can be established by proof must commence such action.

However, the Solgen may suspend or struck down the institution of action for quo warranto where there are just and valid reasons. He may start the prosecution of the case by filing the appropriate action in court or he may opt not to file the suit at all. He may do everything within his legal authority but always conformably with the national interest and the policy of the government on the matter at hand.

The Solgen noticed the folly of re-litigation on the issue of Ongs citizenship in the quo warranto case simultaneously with the RTC case. The Solgen merely advised the petitioner to await the outcome of the RTC case.

2) No. SC declared that the proper petition is a quo warranto proceeding, not petition for certiorari and prohibition for the former action seeks to declare null and void. Petitioner claims that Ongs appointment as an Associate Justice of Sandiganbayan is being unconstitutional. The petition professes to be for certiorari and prohibition but it shows a quo warranto aspect of the petition.

As a collateral attack on a public officers title, the present petition for certiorari and prohibition must be dismissed. The title of a public office may be contested directly by no less a quo warranto suit. It cannot be invoked collaterally even by mandamus or motion to annul the order.

A quo warranto proceeding is the proper legal remedy to determine the title to a contested public office. It is brought against the person who is alleged to have usurped, intruded into or unlawfully held or exercised the public office and may be commenced by the Solicitor General as the case may be, or by any person claiming to be entitled to public office or position usurped or unlawfully held or exercised by another. There must be a clear right to the contested office.

There was no sufficient proof of a clear franchise to the Office of Associate Justice of Sandiganbayan. The petitioner conceded to that he was neither entitled to the contested office which warrants the termination of the suit.

It is the same with rightful authority of a judge in the full exercise of his public function which can not be questioned by merely private suitor or by any other except in the form especially provided by law. To uphold such action would encourage every disgruntled citizen to resort to courts causing inculpable mischief and hindrance to the efficient operation of the governmental machine.

The Court declares that Ong may either be a dejure officer who is deemed legally appointed and whose term of office has not expired or a de facto officer who enjoys certain rights among which is his title to said office may not be contested except directly by a quo warranto.

Expropriation (Rule 67)

SECTION 1.The complaint. The right of eminent domain shall be exercised by the filing of a verified complaint which shall state with certainty the right and purpose of expropriation, describe the real or personal property sought to be expropriated, and join as defendants all persons owning or claiming to own, or occupying, any part thereof or interest therein, showing, so far as practicable, the separate interest of each defendant. If the title to any property sought to be expropriated appears to be in the Republic of the Philippines, although occupied by private individuals, or if the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners, averment to that effect may be made in the complaint.

SECTION 2.Entry of plaintiff upon depositing value with authorized government depositary. Upon the filing of the complaint or at any time thereafter and after due notice to the defendant, the plaintiff shall have the right to take or enter upon the possession of the real property involved if he deposits with the authorized government depositary an amount equivalent to the assessed value of the property for purposes of taxation to be held by such bank subject to the orders of the court. Such deposit shall be in money, unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a government bank of the Republic of the Philippines payable on demand to the authorized government depositary.

If personal property is involved, its value shall be provisionally ascertained and the amount to be deposited shall be promptly fixed by the court.

After such deposit is made the court shall order the sheriff or other proper officer to forthwith place the plaintiff in possession of the property involved and promptly submit a report thereof to the court with service of copies to the parties.

SECTION 3.Defenses and objections. If a defendant has no objection or defense to the action or the taking of his property, he may file and serve a notice of appearance and a manifestation to that effect, especially designating or identifying the property in which he claims to be interested, within the time stated in the summons. Thereafter, he shall be entitled to notice of all proceedings affecting the same.

If a defendant has any objection to the filing of or the allegations in the complaint, or any objection or defense to the taking of his property, he shall serve his answer within the time stated in the summons. The answer shall specifically designate or identify the property in which he claims to have an interest, state the nature and extent of the interest claimed, and adduce all his objections and defenses to the taking of his property. No counterclaim; cross-claim or third-party complaint shall be alleged or allowed in the answer or any subsequent pleading.

A defendant waives all defenses and objections not so alleged but the court, in the interest of justice, may permit amendments to the answer to be made not later than ten (10) days from the filing thereof. However, at the trial of the issue of just compensation, whether or not a defendant has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award.

SECTION 4.Order of expropriation. If the objections to and the defenses against the right of the plaintiff to expropriate the property are overruled, or when no party appears to defend as required by this Rule, the court may issue an order of expropriation declaring that the plaintiff has a lawful right to take the property sought to be expropriated, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint, whichever came first.

A final order sustaining the right to expropriate the property may be appealed by any party aggrieved thereby. Such appeal, however, shall not prevent the court from determining the just compensation to be paid.

After the rendition of such an order, the plaintiff shall not be permitted to dismiss or discontinue the proceeding except on such terms as the court deems just and equitable.

SECTION 5.Ascertainment of compensation. Upon the rendition of the order of expropriation, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. The order of appointment shall designate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report shall be submitted to the court.

Copies of the order shall be served on the parties. Objections to the appointment of any of the commissioners shall be filed with the court within ten (10) days from service, and shall be resolved within thirty (30) days after all the commissioners shall have received copies of the objections.

SECTION 6.Proceedings by commissioners. Before entering upon the performance of their duties, the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case. Evidence may be introduced by either party before the commissioners who are authorized to administer oaths on hearings before them, and the commissioners shall, unless the parties consent to the contrary, after due notice to the parties to attend, view and examine the property sought to be expropriated and its surroundings, and may measure the same, after which either party may, by himself or counsel, argue the case. The commissioners shall 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. But in no case shall the consequential benefits assessed exceed the consequential damages assessed, or the owner be deprived of the actual value of his property so taken.

SECTION 7.Report by commissioners and judgment thereupon. The court may order the commissioners to report when any particular portion of the real estate shall have been passed upon by them, and may render judgment upon such partial report, and direct the commissioners to proceed with their work as to subsequent portions of the property sought to be expropriated, and may from time to time so deal with such property. The commissioners shall make a full and accurate report to the court of all their proceedings, and such proceedings shall not be effectual until the court shall have accepted their report and rendered judgment in accordance with their recommendations. Except as otherwise expressly ordered by the court, such report shall be filed within sixty (60) days from the date the commissioners were notified of their appointment, which time may be extended in the discretion of the court. Upon the filing of such report, the clerk of the court shall serve copies thereof on all interested parties, with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire. (7a)

SECTION 8.Action upon commissioners' report. Upon the expiration of the period of ten (10) days referred to in the preceding section, or even before the expiration of such period but after all the interested parties have filed their objections to the report or their statement of agreement therewith, the court may, after hearing, accept the report and render judgment in accordance therewith; or, for cause shown, it may recommit the same to the commissioners for further report of facts; or it may set aside the report and appoint new commissioners, or it may accept the report in part and reject it in part; and it may make such order or render such judgment as shall secure to the plaintiff of the property essential to the exercise of his right of expropriation, and to the defendant just compensation for the property so taken.

SECTION 9.Uncertain ownership; conflicting claims. If the ownership of the property taken is uncertain, or there are conflicting claims to any part thereof, the court may order any sum or sums awarded as compensation for the property to be paid to the court for the benefit of the person adjudged in the same proceeding to be entitled thereto. But the judgment shall require the payment of the sum or sums awarded to either the defendant or the court before the plaintiff can enter upon the property, or retain it for the public use or purpose if entry has already been made.

SECTION 10.Rights of plaintiff after judgment and payment. Upon payment by the plaintiff to the defendant of compensation fixed by the judgment, with legal interest thereon from the taking of the possession of the property, or after tender to him of the amount so fixed and payment of the costs, the plaintiff shall have the right to enter upon the property expropriated and to appropriate it for the public use or purpose defined in the judgment, or to retain it should he have taken immediate possession thereof under the provisions of section 2 hereof. If the defendant and his counsel absent themselves from the court, or decline to receive the amount tendered, the same shall be ordered to be deposited in court and such deposit shall have the same effect as actual payment thereof to the defendant or the person ultimately adjudged entitled thereto.

SECTION 11.Entry not delayed by appeal; effect of reversal. The right of the plaintiff to enter upon the property of the defendant and appropriate the same for public use or purpose shall not be delayed by an appeal from the judgment. But if the appellate court determines that plaintiff has no right of expropriation, judgment shall be rendered ordering the Regional Trial Court to forthwith enforce the restoration to the defendant of the possession of the property, and to determine the damages which the defendant sustained and may recover by reason of the possession taken by the plaintiff.

SECTION 12.Costs, by whom paid. The fees of the commissioners shall be taxed as a part of the costs of the proceedings. All costs, except those of rival claimants litigating their claims, shall be paid by the plaintiff, unless an appeal is taken by the owner of the property and the judgment is affirmed, in which event the costs of the appeal shall be paid by the owner.

SECTION 13.Recording judgment, and its effect. The judgment entered in expropriation proceedings shall state definitely, by an adequate description, the particular property or interest therein expropriated, and the nature of the public use or purpose for which it is expropriated. When real estate is expropriated, a certified copy of such judgment shall be recorded in the registry of deeds of the place in which the property is situated, and its effect shall be to vest in the plaintiff the title to the real estate so described for such public use or purpose.

SECTION 14.Power of guardian in such proceedings. The guardian or guardian ad litem of a minor or person judicially declared to be incompetent may, with the approval of the court first had, do and perform on behalf of his ward any act, matter, or thing respecting the expropriation for public use or purpose of property belonging to such minor or person judicially declared to be incompetent, which such minor or person judicially declared to be incompetent could do in such proceedings if he were of age or competent.

Expropriation is a special civil action which implements the right of eminent domainRequisites for exercise of right(1) due process of law compliance with the rules set down (Rule 67);

(2) payment of just compensation; and

(3) taking must be for public use. (JM Tuazon and Co., Inc. v. Land Tenure Administration, 1970)Two stages in expropriation proceedings Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts. This stage is terminated by either an order of dismissal of the action or order of the condemnation declaring that expropriation is proper and legal. These orders are final and therefore appealable. (Municipality of Bian v. Garcia, 1989)*deposit is also determined either based on Rule 67 or RA 8964 Determination of just compensation (just compensation is discretionary on the court). This is done with the assistance of not more than three (3) commissioners. The order fixing just compensation is also final and appealable. (Ibid). Just compensation is to be determined as of the date of the taking of the propriety or the filing of the complaint, whichever comes first.Is the court bound to follow the recommendation of the commissioner(s)?

NO! but the recommendation will help in determining the just compensation.Peculiarity in Proceedings

Multiple appeals and the period to appeal is 30 days unlike in ordinary civil actions (15 days). Furthermore, no record on appeal is required.

Although the procedure is not summary there are prohibited pleadings. (counter-claim, cross-claim and third party complaint)

Even if defendant here is declared in default he can still participate in proceedings

Trial by commissioner is mandatory unlike in ordinary civil actions where it is discretionary

Even if the defendant accepts money as just compensation from plaintiff, he can still assail the judgment of court on the propriety of the expropriation.

Moday v. CA, 268 SCRA 586, Inherently possessed by the national legislature the power of eminent domain may be validly delegated to local governments, other public utilities and public entities

Foreclosure of Real Estate Mortgage (Rule 68)

SECTION 1.Complaint in action for foreclosure. In an action for the foreclosure of a mortgage or other encumbrance upon real estate, the complaint shall set forth the date and due execution of the mortgage; its assignments, if any; the names and residences of the mortgagor and the mortgagee; a description of the mortgaged property; a statement of the date of the note or other documentary evidence of the obligation secured by the mortgage, the amount claimed to be unpaid thereon; and the names and residences of all persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage, all of whom shall be made defendants in the action.

SECTION 2.Judgment on foreclosure for payment or sale. If upon the trial in such action the court shall find the facts set forth in the complaint to be true, it shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as approved by the court, and costs, and shall render judgment for the sum so found due and order that the same be paid to the court or to the judgment obligee within a period of not less than ninety (90) days nor more than one hundred twenty (120) days from the entry of judgment, and that in default of such payment the property shall be sold at public auction to satisfy the judgment.

SECTION 3.Sale of mortgage property; effect. When the defendant, after being directed to do so as provided in the next preceding section, fails to pay the amount of the judgment within the period specified therein, the court, upon motion, shall order the property to be sold in the manner and under the provisions of Rule 39 and other regulations governing sales of real estate under execution. Such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof, and when confirmed by an order of the court, also upon motion, it shall operate to divest the rights in the property of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law.

Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property unless a third party is actually holding the same adversely to the judgment obligor. The said purchaser or last redemptioner may secure a writ of possession, upon motion, from the court which ordered the foreclosure.

SECTION 4.Disposition of proceeds of sale. The amount realized from the foreclosure sale of the mortgaged property shall, after deducting the costs of the sale, be paid to the person foreclosing the mortgage, and when there shall be any balance or residue, after paying off the mortgage debt due, the same shall be paid to junior encumbrancers in the order of their priority, to be ascertained by the court, or if there be no such encumbrancers or there be a balance or residue after payment to them, then to the mortgagor or his duly authorized agent, or to person entitled to it.

SECTION 5.How sale to proceed in case the debt is not all due. If the debt for which the mortgage or encumbrance was held is not all due as provided in the judgment, as soon as a sufficient portion of the property has been sold to pay the total amount and the costs due, the sale shall terminate; and afterwards, as often as more becomes due for principal or interest and other valid charges, the court may, on motion, order more to be sold. But if the property cannot be sold in portions without prejudice to the parties, the whole shall be ordered to be sold in the first instance, and the entire debt and costs shall be paid, if the proceeds of the sale be sufficient therefor, there being a rebate of interest where such rebate is proper.

SECTION 6.Deficiency judgment. If upon the sale of any real property as provided in the next preceding section there be a balance due to the plaintiff after applying the proceeds of the sale, the court, upon motion, shall render judgment against the defendant for any such balance for which, by the record of the case, he may be personally liable to the plaintiff, upon which execution may issue immediately if the balance is all due at the time of the rendition of the judgment; otherwise, the plaintiff shall be entitled to execution at such time as the balance remaining becomes due under the terms of the original contract, which time shall be stated in the judgment.

SECTION 7.Registration. A certified copy of the final order of the court confirming the sale shall be registered in the registry of deeds. If no right of redemption exists, the certificate of title in the name of the mortgagor shall be cancelled, and a new one issued in the name of the purchaser.

Where a right of redemption exists, the certificate of title in the name of the mortgagor shall not be cancelled, but the certificate of sale and the order confirming the sale shall be registered and a brief memorandum thereof made by the registrar of deeds upon the certificate of title. In the event the property is redeemed, the deed of redemption shall be registered with the registry of deeds, and a brief memorandum thereof shall be made by the registrar of deeds on said certificate of title.

If the property is not redeemed, the final deed of sale executed by the sheriff in favor of the purchaser at the foreclosure sale shall be registered with the registry of deeds; whereupon the certificate of title in the name of the mortgagor shall be cancelled and a new one issued in the name of the purchaser.

SECTION 8.Applicability of other provisions. The provisions of sections 31, 32 and 34 of Rule 39 shall be applicable to the judicial foreclosure of real estate mortgages under this Rule insofar as the former are not inconsistent with or may serve to supplement the provisions of the latter.

Judgment in a foreclosure proceedingThe judgment in a judicial foreclosure proceeding should:

(1) make a finding of the amount due the plaintiff including interest, cost and other charges approved by the court;

(2) order defendant to pay said amount within a period of not less than ninety (90) days nor more than one hundred twenty (120) days from entry of judgment; and

(3) if the defendant defaults, the court should order the sale at public auction of the mortgaged property.

Judicial Foreclosure vs. Extra-Judicial Foreclosure

First has court intervention and there is only equity of redemption and is governed by the Rules of Court, while second is that there is no court intervention, right of redemption exists and is governed by Act 3135.

Note: Even if there is no court intervention in extra-judicial foreclosure at the outset, the court will intervene when it comes to recovery of the possession of property foreclosed, i.e. when he purchased it in public auction, he needs to file a motion for the issuance of writ of possession.Distinction between right of redemption and equity of redemptionEquity of Redemption is the right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the amount fixed in the decision of the court within ninety (90) to one hundred twenty (120) days after entry of judgment or even after the foreclosure sale but prior to its confirmation. (Rules of Court, Rule 68, Sec. 52; Limpin v. Intermediate Appellate Court, No. L-70987, September 29, 1988) On the other hand, right of redemption is the right granted to the debtor-mortgagor, his successor-in-interest or any judicial creditor of said debtor-mortgagor or any person having a lien in the property subsequent to its mortgage or deed of trust under which the property is sold to redeem the property within one (1) year from the registration of the sheriffs certificate of foreclosure sale. (Rules of Court, Rule 39, Sec. 29; De Castro v. Intermediate Appellate Court, No. L-73859, September 26, 1988)Writ of possession in judicial foreclosureAfter the foreclosure sale is confirmed, the court, upon motion, may issue a writ of possession to install the buyer at auction into possession of the property sold.

Deficiency judgmentSome rules on deficiency judgment are:

(1) A motion for deficiency judgment may be made only after the sale and after it becomes known that a deficiency exists. (Governor of the Philippine Islands v. Torralba Viuda de Santos, [1935])(2) Deficiency judgment cannot be rendered against a non-resident defendant. (El Banco Espaol-Filipino v. Palanca, [1918])(3) No deficiency judgment may be rendered against the owner who is not a mortgagor and has not assumed personal liability for the debt. The remedy is an ordinary action against the debtor. (Philippine Trust Co. v. Echaus Tan Siua, [1929])(4) If the debtor dies, the deficiency may be filed as a claim against his estate. (Rules of Court, Rule 86, Sec. 7.)

(5) No deficiency judgment allowed under Recto Law Article 1484 NCC.

Under Article 1484 of the New Civil Code, in a contract of sale of personal property the price of which is payable in installments, the vendor may exercise any of the following REMEDIES:1. Exact fulfillment of the obligation, should the buyer fail to pay any installment;2. Cancel the sale, should the buyers failure to pay cover two or more installments3. Foreclose the chattel mortgage on the thing sold, if one has been constituted, should the buyers failure to pay cover two or more installments. The remedies have been recognized as alternative, not cumulative, in that the exercise of one would also bar the exercise of the others. They cannot also be pursued simultaneously. If the seller should foreclose on the mortgage constituted on the thing sold, he shall have no further action against the purchaser to recover any unpaid balance of the price. Any agreement to the contrary shall be void.Peculiarity in Proceedings

We do not follow BP 129. Just like expropriation the first issue that the court needs to resolve is whether or not there is a right to foreclose. Hence this is incapable of pecuniary estimation cognizable by RTC.

There are three stages: a) Determination of right to foreclose; b) foreclosure itself; c) Recovery of deficiency.

Having three stages, there may be multiple appeals because there can be three judgments. [It appears that judicial foreclosure is disadvantageous to the mortgagee, because the period of equity of redemption is increased because of the pendency of the appeals, hence he has to wait for the entry of final judgment]

There is a need for a record on appeal here

The rules themselves tell the petitioner who should be sued in court (those who will be impleaded as indispensable parties, i.e. debtor, mortgagor.

In order for the junior encumbrancers or subsequent mortgagees right of redemption be lost they should be impleaded

In judicial foreclosure it is not enough for the court to say that the debtor is directed to pay his unsettled account. In addition, the court must give a period of time within which the debtor has to pay the account. (90-120 days from entry of final judgment)

Unlike in Rule 39, there is a need to confirm the sale

Partition (Rule 69)

SECTION 1.Complaint in action for partition of real estate. A person having the right to compel the partition of real estate may do so as in this Rule, setting forth in his complaint the nature and extent of his title and an adequate description of the real estate of which partition is demanded and joining as defendants all the other persons interested in the property.

SECTION 2.Order for partition, and partition by agreement thereunder. If after the trial the court finds that the plaintiff has the right thereto, it shall order the partition of the real estate among all the parties in interest. Thereupon the parties may, if they are able to agree, make the partition among themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed upon by all the parties, and such partition, together with the order of the court confirming the same, shall be recorded in the registry of deeds of the place in which the property is situated.

A final order decreeing petition and accounting may be appealed by any party aggrieved thereby.

SECTION 3.Commissioners to make partition when parties fail to agree. If the parties are unable to agree upon the partition, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to make the partition, commanding them to set off to the plaintiff and to each party in interest such part and proportion of the property as the court shall direct.

SECTION 4.Oath and duties of commissioners. Before making such partition, the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case. In making the partition, the commissioners shall view and examine the real estate, after due notice to the parties to attend at such view and examination, and shall hear the parties as to their preference in the portion of the property to be set apart to them and the comparative value thereof, and shall set apart the same to the parties in lots or parcels as will be most advantageous and equitable, having due regard to the improvements, situation and quality of the different parts thereof.

SECTION 5.Assignment or sale of real estate by commissioners. When it is made to appear to the commissioners that the real estate, or a portion thereof, cannot be divided without prejudice to the interests of the parties, the court may order it assigned to one of the parties willing to take the same, provided he pays to the other parties such amounts of the commissioners deem equitable, unless one of the interested parties asks that the property be sold instead of being so assigned, in which case the court shall order the commissioners to sell the real estate at public sale under such conditions and within such time as the court may determine.

SECTION 6.Report of commissioners; proceedings not binding until confirmed. The commissioners shall make a full and accurate report to the court of all their proceedings as to the partition, or the assignment of real estate to one of the parties, or the sale of the same. Upon the filing of such report, the clerk of court shall serve copies thereof on all the interested parties with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire. No proceeding had before or conducted by the commissioners shall pass the title to the property or bind the parties until the court shall have accepted the report of the commissioners and rendered judgment thereon.

SECTION 7.Action of the court upon commissioners' report. Upon the expiration of the period of ten (10) days referred to in the preceding section, or even before the expiration of such period but after the interested parties have filed their objections to the report or their statement of agreement therewith, the court may, upon hearing, accept the report and render judgment in accordance therewith; or, for cause shown, recommit the same to the commissioners for further report of facts; or set aside the report and appoint new commissioners; or accept the report in part and reject it in part; and may make such order and render such judgment as shall effectuate a fair and just partition of the real estate, or of its value, if assigned or sold as above provided, between the several owners thereof.

SECTION 8.Accounting for rent and profits in action for partition. In an action for partition in accordance with this Rule, a party shall recover from another his just share of rents and profits received by such other party from the real estate in question, and the judgment shall include an allowance for such rents and profits.

SECTION 9.Power of guardian in such proceedings. The guardian or guardian ad litem of a minor or person judicially to be incompetent may, with the approval of the court first had, do and perform on behalf of his ward any act, matter, or thing respecting the partition of real estate, which the minor or person judicially declared to be incompetent could do in partition proceedings if he were of age or competent.

SECTION 10.Costs and expenses to be taxed and collected. The court shall equitably tax and apportion between or among the parties the costs and expenses which accrue in the action, including the compensation of the commissioners, having regard to the interests of the parties and execution may issue therefor as in other cases.

SECTION 11.The judgment and its effect; copy to be recorded in registry of deeds. If actual partition of property is made, the judgment shall state definitely, by metes and bounds and adequate description, the particular portion of the real estate assigned to each party, and the effect of the judgment shall be to vest in each party to the action in severalty the portion of the real estate assigned to him. If the whole property is assigned to one of the parties upon his paying to the others the sum or sums ordered by the court, the judgment shall state the fact of such payment and of the assignment of the real estate to the party making the payment, and the effect of the judgment shall be to vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties to the action. If the property is sold and the sale confirmed by the court, the judgment shall state the name of the purchaser or purchasers and a definite description of the parcels of real estate sold to each purchaser, and the effect of the judgment shall be to vest the real estate in the purchaser or purchasers making the payment or payments, free from the claims of any of the parties to the action. A certified copy of the judgment shall in either case be recorded in the registry of deeds of the place in which the real estate is situated, and the expenses of such recording shall be taxed as part of the costs of the action.

SECTION 12.Neither paramount rights nor amicable partition affected by this Rule. Nothing in this Rule contained shall be construed so as to prejudice, defeat, or destroy the right or title of any person claiming the real estate involved by title under any other person, or by title paramount to the title of the parties among whom the partition may have been made; nor so as to restrict or prevent persons holding real estate jointly or in common from making an amicable partition thereof by agreement and suitable instruments of conveyance without recourse to an action.

SECTION 13.Partition of personal property. The provisions of this Rule shall apply to partitions of estates composed of personal property, or of both real and personal property, in so far as the same may be applicable.

Two stages of the action1. Determination of the propriety of partition. This involves a determination of whether the subject property is owned in common and whether all the co-owners are made parties in the case. The order may also require an accounting of rents and profits recovered by the defendant. This order of partition is appealable. (Miranda v. Court of Appeals, No. L-33007, June 18, 1976) If not appealed, then the parties may partition the common property in the way they want. If they cannot agree, then the case goes into the second stage. However, the order of accounting may in the meantime be executed. (De Mesa v. CA, 1994)2. The actual partitioning of the subject property. This is also a complete proceeding and the order or decision is appealable.Prescription of actionAction for partition is unprescriptible for as long as the co-owners expressly or impliedly recognize the co-ownership. (Civil Code, Art. 494) However, if a co-owner repudiates the co-ownership and makes known such repudiation to the other co-owners, then partition is no longer a proper remedy of the aggrieved co-owner. S/he should file an accion reivindicatoria which is prescriptible. (Roque v. IAC, 1988)Some decisions When there was a prior partition, the fact that the share of each co-heir has not been technically described and the title over the whole lot remains uncancelled does not negate such partition. There can be no partition again because there is no more common property. (Noceda v. CA, 1999) Oral partition of land when the same is fully consummated is valid and binding upon the parties thereto. (Crucillo v. IAC, 1999)Peculiarity in Proceedings

All co-owners must be impleaded, they are indispensable parties, hence when one is left out the judgment of the court will not become final. Once left out, a co-owner may intervene whether or not there is a judgment rendered. (Unlike in ordinary civil actions where intervention is allowed only when there is no judgment yet)

Admits multiple appeals

Appointment of commissioners is mandatory

Forcible Entry and Unlawful Detainer (Rule 70)

SECTION 1.Who may institute proceedings, and when. Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person, may, at any time within one (1) year after such unlawful deprivation or withholding of possession, bring an action in the proper Municipal Trial Court against the person or person unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs.

SECTION 2.Lessor to proceed against lessee only after demand. Unless otherwise stipulated, such action by the lessor shall be commenced only after demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee, or by serving written notice of such demand upon the person found on the premises, or by posting such notice on the premises if no person be found thereon, and the lessee fails to comply therewith after fifteen (15) days in the case of land or five (5) days in the case of buildings.

SECTION 3.Summary procedure. Except in cases covered by the agricultural tenancy laws or when the law otherwise expressly provides, all actions for forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered, shall be governed by the summary procedure hereunder provided.

SECTION 4.Pleadings allowed. The only pleadings allowed to be filed are the complaint, compulsory counterclaim and cross-claim pleaded in the answer, and the answers thereto. All pleadings shall be verified.

SECTION 5.Action on complaint. The court may, from an examination of the allegations in the complaint and such evidence as may be attached thereto, dismiss the case outright on any of the grounds for the dismissal of a civil action which are apparent therein. If no ground for dismissal is found, it shall forthwith issue summons.

SECTION 6.Answer. Within ten (10) days from service of summons, the defendant shall file his answer to the complaint and serve a copy thereof on the plaintiff. Affirmative and negative defenses not pleaded therein shall be deemed waived, except lack of jurisdiction over the subject matter. Cross-claims and compulsory counterclaims not asserted in the answer shall be considered barred. The answer to counterclaims or cross-claims shall be served and filed within ten (10) days from service of the answer in which they are pleaded.

SECTION 7.Effect of failure on answer. Should the defendant fail to answer the complaint within the period above provided, the court motu proprio or on motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein. The court may in its discretion reduce the amount of damages and atto