LECTURE ON PRE-TRIAL, PROVISIONAL REMEDIES AND

SPECIAL CIVIL ACTIONS

By
Justice Zenaida T. Galapate-Laguilles

PRE-TRIAL

CONCEPT OF PRE-TRIAL

Pre -trial is a mandatory procedural device by which the court is called upon, after the filing of the last pleading,
to compel the parties and their lawyers to appear before it for the purposes enumerated under Section 2, Rule
18.( Cannot be the subject of a waiver)

When conducted? (Sec. 1, Rule 18)

After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte
that the case be set for pre-trial.( After issues have been joined)

The motion is to be filed within 5 days after the last pleading joining the issue has been served and filed
(Admin. Circular No. 3-99, Jan. 15, 1999).

If the plaintiff fails to file said motion within the given period, the Clerk of Court shall issue a notice of pre-trial.
(A.M. No. 03-1-09-SC, Re: Pre-trial guidelines, Effective August 16, 2004)

The plaintiff need not wait until the last pleading has been actually served and filed as the expiration of the
period for filing the last pleading will suffice.(Sarmiento v. Juan, No. 56605 January 28, 1983).

Nature and purpose (Sec. 2, Rule 18)

The pre-trial is mandatory. The court shall consider:

(a) The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution;
(b) The simplification of the issues;
(c) The necessity or desirability of amendments to the pleadings;( Rule 10)
(d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary
proof;
(e) The limitation of the number of witnesses;( court’s discretion)
(f) The advisability of a preliminary reference of issues to a commissioner;( or referee)
(g) The propriety of rendering judgment on the pleadings, or summary judgment( Rules 34 and 35), or of
dismissing the action should a valid ground therefor be found to exist;( Not limited to Rule 16, i.e.,
preliminary hearing on the affirmative defenses)
(h) The advisability or necessity of suspending the proceedings; ( for the possibility of an amicable
settlement , 60 days)and;
(i) Such other matters as may aid in the prompt disposition of the action.( Usually modes of discovery)

Notice of pre-trial

The notice of pre-trial shall be served on counsel, or on the party who has no counsel. The counsel served with
such notice is charged with the duty of notifying the party represented by him. (Sec. 3, Rule 18)

Appearance of parties

It shall be the duty of the parties and their counsel to appear at the pre-trial. The non-appearance of a party
may be excused only if a valid cause is shown therefor or if a representative shall appear in his behalf fully
authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution,
and to enter into stipulations or admissions of facts and of documents. (Sec. 4, Rule 18)

Effect of failure to appear

The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be cause for
dismissal of the action. The dismissal shall be with prejudice, unless other-wise ordered by the court. A similar
failure on the part of the defendant shall be cause to allow the plaintiff to present his evidence ex parte and the
court to render judgment on the basis thereof. (Sec. 5, Rule 18)( Note: no more declaration of default but the
situation is “ as in default”)

Pre-trial brief (Sec. 6, Rule 18)

The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt
thereof at least three (3) days before the date of the pre-trial, their respective pre-trial briefs which shall
contain, among others:

(a) A statement of their willingness to enter into amicable settlement or alternative modes of dispute
resolution, indicating the desired terms thereof;
(b) A summary of admitted facts and proposed stipulation of facts;
(c) The issues to be tried or resolved;
 (d) The documents or exhibits to be presented stating the purpose thereof;
(e) A manifestation of their having availed or their intention to avail themselves of discovery procedures or
referral to commissioners; and
(f) The number and names of the witnesses, and the substance of their respective testimonies.

► Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial.( note the
sheer importance of filing the pre-trial brief)

►Clearly, the said Rules command, in no uncertain terms, the filing of the preliminary conference brief and
compliance with the required contents of the said brief. By the Rules' express language, the failure to comply
therewith shall have the same effect as failure to appear at the preliminary conference which, in turn, shall be a
sufficient cause for the dismissal of the protest. (Cabrera v. COMELEC, G.R. No. 182084, October 8, 2008)

Distinction between pre-trial in civil case and pre-trial in criminal case

CIVIL CASE CRIMINAL CASE

The presence of the defendant is required unless
The presence of the accused is not indispensable
he is duly represented by his counsel with
unless required by the court, he is just required to sign
authority to enter into a compromise agreement,
the written agreement arrived at the pretrial if he is in
failure of which the case would proceed as if the
conformity therewith.
defendant has been declared in default.
The offended party is not required to be present at the
The presence of the plaintiff is required at the pre- pre-trial but must appear at the
trial unless excused or represented by person fully arraignment for the purpose of plea bargaining,
authorized in writing to perform the acts specified determination of civil liability and other matters
in Sec 4, Rule 18. Failure of which the case may be requiring his presence. (If the offended party fails to
dismissed with or without appear, and the accused offer to plea to a lesser
prejudice. offense, the same may be allowed with the
conformity of the prosecutor alone.
Does not require filing of pre-trial brief but attendance
A pre-trial brief is required only in a pre-trial conference to consider the matters
stated in sec 2, rule18 (Regalado)

Effect of failure to set the case for pre-trial

Under Section 1, Rule 18 of the 1997 Rules of Civil Procedure, as amended, it is the duty of the plaintiff, after
the last pleading has been served and filed, to promptly move ex parte that the case be set for pre-trial. On
August 16, 2004, A.M. No. 03-1-09-SC (Re: Proposed Rule on Guidelines to be Observed by Trial Court Judges
and Clerks of Court in the Conduct of Pre- Trial and Use of Deposition-Discovery Measures) took effect, which
provides that:

Within five (5) days from date of filing of the reply, the plaintiff must promptly move ex parte that the
case be set for pre-trial conference. If the plaintiff fails to file said motion within the given period, the
Branch COC shall issue a notice of pre-trial.

In BPI v. Spouses Genuino, (G.R. No. 208792, July 22, 2015) the Supreme Court held:

Nevertheless, nowhere in the text of A.M. No. 03-1-09-SC does it remove the plaintiff's duty under
Rule 18, Section 1 of the Rules of Court to set the case for pre-trial after the last pleading has been served
and filed. Nowhere does it repeal Rule 17, Section 3 of the Rules of Court that allows dismissals due to
plaintiff's fault, including plaintiff's failure to comply with the Rules for no justifiable cause. Nowhere does it
impose a sole burden on the trial court to set the case for pre-trial.

Reading A.M. No. 03-1-09-SC together with Rule 17, Section 3 and Rule 18, Section 1 of the Rules of Court
accommodates the outright dismissal of a complaint upon plaintiff's failure to show justifiable reason for not
setting the case for pre-trial within the period provided by the Rules. Thus, trial courts must consider the
facts of each case.

This court has allowed cases to proceed despite failure by the plaintiff to promptly move for pre-trial when it
finds that "the extreme sanction of dismissal of the complaint might not be warranted":( note the court’s
wide latitude for discretion)

It must be stressed that even if the plaintiff fails to promptly move for pre-trial without any
justifiable cause for such delay, the extreme sanction of dismissal of the complaint might not be
warranted if no substantial prejudice would be caused to the defendant, and there are special and
compelling reasons which would make the strict application of the rule clearly unjustified.
xxxxxxxxx

While "heavy pressures of work" was not considered a persuasive reason to justify the failure to set
the case for pre-trial in Olave v. Mistas, however, unlike the respondents in the said case, herein
respondent never failed to comply with the Rules of Court or any order of the trial court at any other
time. Failing to file a motion to set the case for pre-trial was her first and only technical lapse during
the entire proceedings. Neither has she manifested an evident pattern or a scheme to delay the
 disposition of the case nor a wanton failure to observe the mandatory requirement of the rules.
Accordingly, the ends of justice and fairness would best be served if the parties are given the full
opportunity to litigate their claims and the real issues involved in the case are threshed out in a full-
blown trial. Besides, petitioners would not be prejudiced should the case proceed as they are not
stripped of any affirmative defenses nor deprived of due process of law.

This is not to say that adherence to the Rules could be dispensed with. However, exigencies and
situations might occasionally demand flexibility in their application. Indeed, on several occasions, the
Court relaxed the rigid application of the rules of procedure to afford the parties opportunity to fully
ventilate the merits of their cases. This is in line with the time-honored principle that cases should be
decided only after giving all parties the chance to argue their causes and defenses. Technicality and
procedural imperfection should thus not serve as basis of decisions.

Finally, A.M. No. 03-1-09-SC or the new Guidelines to be Observed by Trial Court Judges and Clerks
of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures, which took effect on
August 16, 2004, aims to abbreviate court proceedings, ensure prompt disposition of cases and
decongest court dockets, and to further implement the pre-trial guidelines laid down in
Administrative Circular No. 3-99 dated January 15, 1999. A.M. No. 03-1-09-SC states that: "Within
five (5) days from date of filing of the reply, the plaintiff must promptly move ex-parte that the case
be set for pre-trial conference. If the plaintiff fails to file said motion within the given period, the
Branch COC shall issue a notice of pre-trial." As such, the clerk of court of Branch 17 of the Regional
Trial Court of Malolos should issue a notice of pre-trial to the parties and set the case for pre-trial.
(Emphasis supplied, citations omitted)

PROVISIONAL REMEDIES
(ANCILLARY WRITS OR AUXILLARY REMEDIES)

KINDS OF PROVISIONAL REMEDIES( APRAD)

1. Preliminary Attachment
2. Preliminary Injunction
3. Receivership
4. Replevin
5. Support Pende Lite
6. Deposit ( Lim vs. Reyes)

► are writs and processes available during the pendency of an action to preserve and protect certain
rights and interests pending the result of the final judgment in the case. They are provisional because they
constitute temporary measures availed of during the pendency of the action, and ancillary because they are
mere incidents in and are dependent upon the result of the main action. (Regalado)

RULE 57. PRELIMINARY ATTACHMENT

NATURE: One issued at the commencement of the action or at any time before judgment as SECURITY for the
satisfaction of any judgment.

A writ of preliminary attachment is a provisional remedy issued upon the order of the court where an action is
pending. Through the writ, the property or properties of the defendant may be levied upon and held thereafter
by the sheriff as security for the satisfaction of whatever judgment might be secured by the attaching creditor
against the defendant. The provisional remedy of attachment is available in order that the defendant may not
dispose of the property attached, and thus prevent the satisfaction of any judgment that may be secured by the
plaintiff from the former. (G.R. No. 219345, Security Bank Corp v. Great Wall Commercial Press Co., Inc.,
January 30, 2017)

The writ of preliminary attachment is only a provisional remedy, which is not a cause of action in itself
but is merely adjunct to a main suit. (Ibid)

PURPOSE:
1. To seize the property of the debtor in advance of the final judgment and to hold it for purposes of
satisfying the said judgment.
2. To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the
property in instances where summons cannot be effected.

GROUNDS:

1) 1. Recovery of a specified amount of money or damages, other than moral or exemplary on a cause of action
arising from law, contact, quasi-contract, delict or quasi-delict.

► (Hence cannot be issued for moral and exemplary damagesand other unspecified or
unliquidated claims (Insular Savings Bank vs. Court of Appeals, 460 SCRA 122)

1) Action for money or property embezzled ( fraudulent misapplication or conversion)

2) Recovery of property unjustly or fraudulently taken, detained or converted (defendant here has concealed,
removed or disposed of the property for the purpose of preventing its being found or taken by the
applicant or authorized person).
3) Fraud in contracting or performing an obligation the fraudulent act itself is the incipient cause of
defraudation, i.e., issuing a bum check in exchange for a merchandise. This will include both dolocausante
anddoloincidente.
4) Fraud is never presumed; it must be averred with particularity in the Affidavit of merit with particularity.
(Watercraft Venture vs. Alfred Raymond Wolfe, G.R.No. 181721, September 9, 2015).
5)
► While fraud cannot be presumed, it need not be proved by direct evidence and can well be inferred from
attendant circumstances. Fraud by its nature is not a thing susceptible of ocular observation or readily
demonstrable physically; it must of necessity be proved in many cases by inferences from circumstances
shown to have been involved in the transaction in question. (G.R. No. 219345, Security Bank Corp v. Great
Wall Commercial Press Co., Inc., January 30, 2017)

1) 5) Removal or disposal of property with intent to defraud ( the plaintiff or the creditor)

6) Where the adverse party does not reside and is not found in the Philippines, or on whom summons may be
served by publicaton.( sufficient to confer jurisdiction over the res)

⁃ ► Grounds under Rule 57 are specific and exclusive; non- reliance thereon may expose the Judge to
charge of abuse of discretion under Rule 65 and may result to the lifting or discharge of the
attachment.

REQUIREMENTS:

a) AFFIDAVIT – which must contain all the allegations required and the circumstances on why it should be
granted.

need not be executed by the applicant. It may be executed by other persons who know the facts.

CONTENTS:
1. that a sufficient cause of action exists;
2. that the case is one of those mentioned in Section 1 17 hereof;
3. that there is no other sufficient security for the claim sought to be enforced by the action; and
4. that the amount due to the applicant, or the value of the property the possession of which he is
entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims. (G.R.
No. 181721, Watercraft Venture Corp. v. Wolfe, September 9, 2015)

The sufficiency or insufficiency of an affidavit depends upon the amount of credit given it by the judge, and its
acceptance or rejection, upon his sound discretion. (Ibid)

b) BOND – answers for all damages incurred by the party against whom the attachment was issued.

Requisites:

1) 1) Note that there is nothing in the Rules which require a specific amount. Practice has always been that the
same should at least be equivalent to the sum total of the obligation.
2)
3) 2) Could be Cash, Surety, Corporate or Property, propriety of which shall always be addressed to the sound
discretion of the Court.

ISSUANCE AND CONTENTS OF THE ORDERS

a) resolved against the applicant in case of doubt; onus of proving the existence of the ground lies with the
applicant

b) while ordinarily applied for at the inception of the case, this is actually available at any time before
judgment

c) may be issued ex- parte ( Section 2, Rule 57) or with notice and hearing at the court’s discretion; ex-parte
in cases of extreme urgency and so as to preempt any possible disposition of the property by the adverse party
to the detriment of the attaching creditor ( Mindanao Savings and Loan Association, Inc. vs. CA ( 172 SCRA
480)

► For the issuance of an ex-parte issuance of the preliminary attachment to be valid, an affidavit of
merit and an applicant's bond must be filed with the court 14 in which the action is pending. (G.R. No.
181721, Watercraft Venture Corp. v. Wolfe, September 9, 2015)

DURATION OF THE ATTACHMENT:

-Addressed to the sound discretion of the court but this could sometimes extend up to judgment, in which
case, the preliminary nature of the attachment could become final.

REMEDIES AGAINST ATTACHMENT:

1) Posting of Counterbond;
2) Lifting or Discharge due to an improvident issuance ; in both instances, a hearing is required.

Contemporaneous Service of the following ( to satisfy requirements of due process for the defendant
and to enable the court to acquire jurisdiction over him)

1) Copy of the Complaint;

2) Summons;
3) Order granting the Writ;
4) Writ itself

Strict Compliance for:

1) Conduct of Summary Hearing;

2) Motion to Discharge not allowed to dwell on the merits or matters of defense; attention solely focused on the
propriety of the Order granting the Writ.

GROUNDS FOR DISCHARGE OR DISSOLUTION OF A WRIT OF ATTACHMENT

(a) the debtor has posted a counter-bond or has made the requisite cash deposit;
(b) the attachment was improperly or irregularly issued as where there is no ground for attachment, or the
affidavit and/or bond filed therefor are defective or insufficient;
(c) the attachment is excessive, but the discharge shall be limited to the excess;
(d) the property attachment is exempt from preliminary attachment; or
(e) the judgment is rendered against the attaching creditor. (G.R. No. 187922, Marphil Export Corp. V.
Allied Bank Corp., September 21, 2016)

TERCERIA in Attachment

► The aggrieved third party may also avail himself of the remedy of "terceria" by executing an affidavit of his
title or right of possession over the property levied on attachment and serving the same to the office making
the levy and the adverse party. Such party may also file an action to nullify the levy with damages resulting
from the unlawful levy and seizure, which should be a totally separate and distinct action from the former case.
The abovementioned remedies are cumulative and any one of them may be resorted to by one third-party
claimant without availing of the other remedies. (G.R. No. 124642, Ching v. Court of Appeals, February 23,
2004)

RULE 58. PRELIMINARY INJUNCTION

NATURE: A judicial writ, process, or proceedings whereby a party is ordered to do or refrain from doing a
particular act.

► The possibility of irreparable damage without proof of an actual existing right is not a ground for a
preliminary injunction. (G.R. No. 182944, DPWH v. City Advertising Ventures Corp., November 9, 2016)

► Preceded most often by a TRO (note that a WPI is not necessarily preceded by a TRO which is intended
merely to preserve the Status Quo)

PURPOSE:
a) to preserve the status quo or to prevent future wrongs in order to preserve, and
b) protect the interests of the petitioners during the pendency of the action. (Novecio v. Lim, G.R. No. 193809,
March 23, 2015)

REQUISITES (Section 3)

The following requisites must be proved before a writ of preliminary injunction will issue:

(1) The applicant must have a clear and unmistakable right to be protected, that is, a right in esse;
(2) There is a material and substantial invasion of such right;
(3) There is an urgent need for the writ to prevent irreparable injury to the applicant; and,
(4) No other ordinary, speedy, and adequate remedy exists to prevent the infliction of irreparable injury.
(G.R. Nos. 205875 & 208916, Liberty Broadcasting Network, Inc. v. Atlocom Wireless System, Inc.,
June 30, 2015)

► “ irreparable injury” means such injury which is not capable of pecuniary or monetary calculation or where
amount is not identified or quantified ( note labor cases).

► In satisfying these requisites, parties applying for a writ of preliminary injunction need not set out their
claims by complete and conclusive evidence. Prima facie evidence suffices:

It is crystal clear that at the hearing for the issuance of a writ of preliminary injunction, mere prima
facie evidence is needed to establish the applicant's rights or interests in the subject matter of the main
action. It is not required that the applicant should conclusively show that there was a violation of his
rights as this issue will still be fully litigated in the main case. Thus, an applicant for a writ is required
only to show that he has an ostensible right to the final relief prayed for in his complaint.

Spouses Nisce v. Equitable PCI Bank (545 Phil. 138 (2007) discussed the requisites, vis-a-vis the proof
required, for issuing a writ of preliminary injunction:

The plaintiff praying for a writ of preliminary injunction must further establish that he or she has a
 present and unmistakable right to be protected; that the facts against which injunction is directed
violate such right; and there is a special and paramount necessity for the writ to prevent serious
damages. In the absence of proof of a legal right and the injury sustained by the plaintiff, an order for
the issuance of a writ of preliminary injunction will be nullified. Thus, where the plaintiff's right is
doubtful or disputed, a preliminary injunction is not proper. The possibility of irreparable damage
without proof of an actual existing right is not a ground for a preliminary injunction.

However, to establish the essential requisites for a preliminary injunction, the evidence to be submitted
by the plaintiff need not be conclusive and complete. The plaintiffs are only required to show that they
have an ostensible right to the final relief prayed for in their complaint. A writ of preliminary injunction
is generally based solely on initial or incomplete evidence. Such evidence need only be a sampling
intended merely to give the court an evidence of justification for a preliminary injunction pending the
decision on the merits of the case, and is not conclusive of the principal action which has yet to be
decided. (G.R. No. 182944, DPWH v. City Advertising Ventures Corp., November 9, 2016)

► Hearing is always required per Section 5 of Rule 58 unlike in Attachment which could be issued ex-parte or
after due notice. However, if on the face of the pleadings, the applicant for WPI is not entitled thereto, courts
may outrightly deny the motion without conducting a hearing for the purpose. Courts are disinclined to impose
a mandatory hearing requirement on applications for injunction that are prima facie palpably without merit or
impossible to grant. To impose the mandatory hearing requirement will be an undue imposition on the overly
burdened trial courts. Otherwise, our trial courts will be forced to hear out the sort of litigation- happy
attention-deprived miscreants who abuse the judicial processes by filing complaints against real or imaginary
persons based on trivial or inexistent slights. ( New Sound Broadcasting Network Inc. and Consolidated
Broadcasting System, inc. v. Hon. Cesar Dy et. al. G.R. Nos. 170270, April 2, 2009.)

Prior Notice is indispensable for the issuance of a writ of Preliminary Injunction and a Temporary Restraining
Order.

Exception:
If the matter is of extreme urgency and the applicant may suffer injustice and injury, the court may
issue an ex parte TRO effective for only seventy-two (72) hours from issuance, renewable after summary
hearing for a period not exceeding twenty (20) hours which includes the original 72 hours if previously granted.
(Sec. 5, Rule 58)

Note on 72-hour TRO

- This is to be issued by the Executive Judge alone in multiple sala station courts. The regular Judge is
not mandated to extend the said 72- hours TRO which in the first place must have been justified by an
extreme urgency as determined by the Judge.

► Note that under the current Supreme Court Circular, the duration of the WPI shall not exceed 6 months
from its issuance. In which case, the trial court is thus expected to dispose or decide the main case within the
same period, otherwise, this may subject the Judge to administrative sanctions.

⁃ Preliminary Mandatory Injunction in cases cognizable by the MTC

⁃ ( to restore the status quo in ejectment cases and to preserve that status quo which has been restored)
⁃ Preliminary Injunction in a Petition for Relief from Judgment under Rule 38.

Prohibitions of TRO or WPI in government projects ( under RA 8975, an Act to Ensure the expeditious
implementation and completion of government projects) under the following cases:

1) Acquisition, clearance and development of the right-of-way and or site/ location of any national government
project;
2) Bidding or awarding of contracts of the national government;
3) Commencement, execution of any such contract or project;
4) Termination or rescission of such contract/ project/ undertaking or authorization of any other lawful activity
necessary for such contract or project.

Important note:

Trial courts are enjoined from issuing orders releasing imported articles impounded by the Bureau of Customs.
It is settled in jurisprudence that the Collector of Customs has exclusive jurisdiction over seizure and forfeiture
proceedings and regular courts cannot interfere therewith or stifle and put it to naught. ( Zuno vs. Cabredo, 402
SCRA 75.)

RULE 59. RECEIVERSHIP

Who is a receiver?

► A person appointed by the court in behalf of all the parties to an action for the purpose of preserving the
property involved in the suit and to protect the rights of all the parties under the direction of the court.

► The general rule is that neither party to a litigation should be appointed as receiver without the consent of
the other because a receiver should be a person indifferent to the parties and should be impartial and
disinterested. The receiver is not the representative of any of the parties but of all of them to the end that their
interests may be equally protected with the least possible inconvenience and expense. (Commodities Storage &
Ice Plant Corporation v. Court of Appeals, 340 Phil. 551 (1997)
► Receiver must be someone who is totally disinterested or detached to the case, he is not the agent or is
acting for and in behalf of any of the litigants.

PURPOSE:

Primarily intended to prevent dissipation or wastage of assets; object is the property subject of the
proceedings; can be applied for at the commencement of the action, pendency of the action, appeal or
execution proceedings.

► Cannot be granted in a mere suit for collection of a sum of money, there must be an allegation of dissipation
or wastage of assets

Appointment of Receiver

► Receiver must up a Bond (before and after) in light of the numerous tasks that he is expected to discharge.
(Sec. 2)

► Receiver shall be sworn to perform all his duties faithfully. (Sec. 4)

GENERAL POWERS OF RECEIVER (Sec. 6)

a) to bring and defend, in such capacity, action in his own name;
b) to take and keep possession of the property in controversy;
c) to receive rents;
i) to collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he
is the receiver;
ii) e) to compound for and compromise the same;
f) to make transfer;
g) to pay outstanding debts;
h) to divide the money and other property that shall remain among the persons legally entitled to
receive the same;
i) and generally to do such acts respecting the property as the court may authorize.

However, funds in the hands of a receiver may be invested only by order of the court upon the written consent
of all the parties to the action.

No action may be filed by or against a receiver without leave of the court which appointed him.

ACTION AGAINST THE RECEIVER

The rule which requires leave of the appointing court before an action may be maintained against a receiver, is
true only when the receivership is still pending. (National City Bank of New York v. New York Tong Lin & Marine
Insurance Co. 067 Phil 544 (1939)

RULE 60. REPLEVIN

Replevin is an action whereby the owner or person entitled to repossession of goods or chattels may recover
those goods or chattels from one who has wrongfully distrained or taken, or who wrongfully detains such goods
or chattels. (Malayan Insurance Company, Inc. v. Alibudbud, G.R. No. 209011, April 20, 2016)

PURPOSE

It is designed to permit one having right to possession to recover property in specie from one who has
wrongfully taken or detained the property. The term may refer either to the action itself, for the recovery of
personalty, or to the provisional remedy traditionally associated with it, by which possession of the property
may be obtained by the plaintiff and retained during the pendency of the action." (Ibid)

Can be availed of at any time at the commencement of the action or at any time before answer

Requirements:

1. Affidavit of Merit- Which must set forth the circumstances relied upon;
2. Bond – Which must be twice the value of the property sought to be replevied.)

The applicant need not be the owner; it is enough that he is entitled to its possession ( Yang vs. Valdez, 177
SCRA 141)

TERCERIA in Replevin

► It is similar to third-party claims in Attachment and Execution under Rule 39. This is the instance where the
implementation of the writ shall not push through if the third-party claimant presents or executes an Affidavit of
Title. Court action; need for an indemnity bond.

► No implementation of the writ of replevin in properties under custodialegis as distinguished from attachment.
Reason for this, if it would be otherwise, there would be interference with the possession of the property before
the function of the law had been performed as to the process under which the property was taken ( Chua vs.
Court of Appeals, 222 SCRA 85).

► Judgment could be in the alternative: delivery of the property itself or judgment for a sum of money; note
that the plaintiff may refuse to receive the property replevied under certain conditions.

► The Court ruled in Navarro v. Escobido (G.R. No. 153788, November 27, 2009) that prior demand is not a
condition precedent to an action for a writ of replevin, since there is nothing in Section 2, Rule 60 of the Rules
of Court that requires the applicant to make a demand on the possessor of the property before an action for a
writ of replevin could be filed. (G.R. No. 182963, June 3, 2013)

RULE 61. SUPPORT PENDENTE LITE (ALIMONY)

PURPOSE:
1) To compel adverse party to provide support while action is pending in court;
2) No bond is required from the applicant;
3) The application must be verified and shall be set for hearing not more than three (3) days from filing of the
petition.

In Lim-Lua v. Lua, (G.R. No. 175279-80, June 5, 2013) the Supreme Court held:

Judicial determination of support pendente lite in cases of legal separation and petitions for declaration
of nullity or annulment of marriage are guided by the following provisions of the Rule on Provisional Orders.

Sec. 2. Spousal Support. — In determining support for the spouses, the court may be guided by
the following rules:

(a) In the absence of adequate provisions in a written agreement between the spouses, the
spouses may be supported from the properties of the absolute community or the conjugal
partnership.

(b) The court may award support to either spouse in such amount and for such period of
time as the court may deem just and reasonable based on their standard of living during the
marriage.

(c) The court may likewise consider the following factors: (1) whether the spouse seeking
support is the custodian of a child whose circumstances make it appropriate for that spouse not
to seek outside employment; (2) the time necessary to acquire sufficient education and training
to enable the spouse seeking support to find appropriate employment, and that spouse's future
earning capacity; (3) the duration of the marriage; (4) the comparative financial resources of
the spouses, including their comparative earning abilities in the labor market; (5) the needs and
obligations of each spouse; (6) the contribution of each spouse to the marriage, including
services rendered in home-making, child care, education, and career building of the other
spouse; (7) the age and health of the spouses; (8) the physical and emotional conditions of the
spouses; (9) the ability of the supporting spouse to give support, taking into account that
spouse's earning capacity, earned and unearned income, assets, and standard of living; and
(10) any other factor the court may deem just and equitable.

(d) The Family Court may direct the deduction of the provisional support from the salary of
the spouse.

Sec. 3. Child Support. — The common children of the spouses shall be supported from the
properties of the absolute community or the conjugal partnership.

Subject to the sound discretion of the court, either parent or both may be ordered to give an
amount necessary for the support, maintenance, and education of the child. It shall be in
proportion to the resources or means of the giver and to the necessities of the recipient.

In determining the amount of provisional support, the court may likewise consider the following
factors: (1) the financial resources of the custodial and non-custodial parent and those of the
child; (2) the physical and emotional health of the child and his or her special needs and
aptitudes; (3) the standard of living the child has been accustomed to; (4) the non-monetary
contributions that the parents will make toward the care and well-being of the child.

The Family Court may direct the deduction of the provisional support from the salary of the
parent.

The support granted may be in money or other forms in accordance with Article 194 of the Family Code, which
provides as follows, (all in keeping with the financial capacity of the family):

a. Everything indispensable for sustenance;

b. Dwelling;
c. Clothing;
d. Medical attendance;
e. Education; and,
f. Transportation
► Note the variable nature of an Order granting Support Pendente Lite to the changing capacity of the giver
and the equally changing needs of the recipient.

Who may ask for support?

By express provision of Section 1 of Rule 61, any party , not only the plaintiff, may apply for such as long as
there are legal grounds to support such application.

When is it filed?

Can be applied for at the commencement of the action or at any time before judgment.

PROCEDURE:

1) a verified application shall be filed, stating the grounds and the financial conditions of the parties;
2) must be supported by affidavits, depositions or other authentic documents in support thereof.

NOTES:

► If the right to support is put in issue in the pleadings or the fact from which the right to support arises has
not been established, the Court cannot grant support pendent lite. (Francisco vs. Zulueta, 61 Phil. 752)

► Support Pendente Lite in a criminal case which resulted to the birth of an offspring. It is important that what
is pending is a criminal case and the civil aspect thereof is likewise instituted therein and has not been the
subject of reservation or waiver .

► Note very well that here, the movant for Support pendente lite is available notwithstanding the fact that
there is no conviction yet. Also, the remedies of restitution and reimbursement under Rule 39 become available
once it is determined that there is no right to support ( i.e., accused is acquitted).

► Order of execution: upon motion or motuproprio; could also result to contempt citation.

► Execution upon motion of a third person ( Section 5, Rule 61).

DEPOSIT or Escrow( by virtue of jurisprudence, Reyes vs. Lim, 408 SCRA 560).

⁃ allowed as a provisional remedy in the exercise of the court’s equity jurisdiction: In an action for Specific
Performance and Nullification of Sale and title plus damages, the buyer moved that the seller be
ordered to deposit with the cashier of the trial court the P10Miliondownpayment on the land by the
buyer to prevent the dissipation of the amount pending the resolution of the case.

OTHER PROVISIONAL REMEDIES:

1) Under the Rule on the Writ of Amparo ( TPO, WPO, IO, PO);
2) Special Provisional Remedies under RA 8369 or Family Court Cases
3) Seizure and Sequestration Orders under the Human Security Act preventing terrorism;
4) Protection Order and Barangay Protection Order in VAWC cases ( RA 9262);
5) Freezing of Monetary Instrument or Property, or Authority to Inquire into Bank Deposits under AMLA Cases;
6) Stay Order in Corporate Rehabilitation
7) TEPO in Environmental Cases.

SPECIAL CIVIL ACTION

What is a Special Civil action?

It is one which also governed by the rules for ordinary civil actions, but subject to the specific rules prescribed
for a special civil action.

Special civil actions initiated by filing of a Petition:

1. Declaratory relief other than similar remedies;

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

Special civil actions initiated by filing of a Complaint:

1. Interpleader;
2. Expropriation;
3. Foreclosure of real estate mortgage;
4. Partition; and
5. Forcible entry and unlawful detainer.
INTERPLEADER (RULE 62)

Interpleader is a special civil action filed by a person against whom two conflicting claims are made upon the
same subject matter and over which he claims no interest, to compel the claimants to interplead and to litigate
their conflicting claims among themselves (Sec. 1).

Interpleader is a person who has property in his possession or an obligation to render, wholly or partially
without claiming any right therein, or an interest in which in whole or in part is not disputed by the claimants,
comes to court and asks that the persons who consider themselves entitled to demand compliance with the
obligation be required to litigate among themselves in order to determine finally who is entitled to the same.

► An interpleader complaint may be filed by a lessee against those who have conflicting claims over the rent
due for the property leased. This remedy is for the lessee to protect him or her from "double vexation in respect
of one liability." He or she may file the interpleader case to extinguish his or her obligation to pay rent, remove
him or her from the adverse claimants' dispute, and compel the parties with conflicting claims to litigate among
themselves. (Lui Enterprise, Inc. v. ZuelligPharma Corp., G.R. No. 193494, March 12, 2014)

An action of interpleader is afforded to protect a person not against double liability but against double vexation
in respect of one liability. (RCBC v. Metro Container Corp., G.R. No. 127913, September 13, 2001)

Requisites for interpleader

(1) There must be two or more claimants with adverse or conflicting interests to a property in the custody or
possession of the plaintiff;

(2) The plaintiff in an action for interpleader has no claim upon the subject matter of the adverse claims or if he
has an interest at all, such interest is not disputed by the claimants;

(3) The subject matter of the adverse claims must be one and the same; and

(4) The parties impleaded must make effective claims.

When to file

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 (Sec. 1).

RULE 63. DECLARATORY RELIEFS AND SIMILAR REMEDIES

► An action for declaratory relief is brought to secure an authoritative statement of the rights and obligations of
the parties under a contract or a statute for their guidance in the enforcement or compliance with the same
(Meralco vs. Philippine Consumers Foundation, 374 SCRA 262).

PURPOSE:

► [T]he purpose of an action for declaratory relief is to secure an authoritative statement of the rights and
obligations of the parties under a statute, deed, or contract for their guidance in the enforcement thereof, or
compliance therewith, and not to settle issues arising from an alleged breach thereof. (Aquino v. Municipality of
Malay Aklan, G.R. No. 211356, September 29, 2014)

► A petition for declaratory relief gives a practical remedy for ending controversies that have not reached the
state where another relief is immediately available; and supplies the need for a form of action that will set
controversies at rest before they lead to a repudiation of obligations, an invasion of rights, and a commission of
wrongs. (Ibid)

WHO MAY FILE?

By one "whose rights are affected by a statute, executive order or regulation, ordinance, or any other
governmental regulation. (Sec. 1)

SUBJECT MATTER IN A PETITION FOR DECLARATORY RELIEF:

(a) Deed;
(b) Will;
(c) Contract or other written instrument;
(d) Statute;
(e) Executive order or regulation;
(f) Ordinance; or
(g) Any other governmental regulation (Sec. 1).
WHEN FILED?

The petition for declaratory relief is filed before there occurs any breach or violation of the deed, contract,
statute, ordinance or executive order or regulation. (Sec. 1) The trial court has no jurisdiction over the petition
for declaratory relief if the statute, deed, contract, etc, has already been breached. When a court assumed
jurisdiction over a Petition for declaratory relief when there was already a breach of the subject instrument or
government regulation, the orders made by that court would be null and void for want of jurisdiction.
(Department of Finance v. Dela Cruz, Jr., G.R. No. 209331, August 24, 2015 citing Tambunting, Jr. v. Spouses
Sumabat (507 Phil. 94 (2005))

ESSENTIAL REQUISITES

(a) there must be a justiciable controversy;

(b) the controversy must be between persons whose interests are adverse; and

(c) the party seeking declaratory relief must have a legal interest in the controversy. (Macasiano v. NHA, G.R.
No. 107921, July 1, 1993)

(d) The issue is ripe for judicial determination (Republic vs. Orbecido III, 472 SCRA 114, 2005).

WHEN COURT MAY REFUSE TO MAKE JUDICIAL DECLARATION

Except in actions falling under the second paragraph of section 1 of this Rule, the court, motuproprio 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. (Sec. 5)

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 the parties shall be allowed to file such pleadings as may be necessary or
proper. (Sec. 6)

REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMMISSION ON ELECTIONS

AND THE COMMISSION ON AUDIT (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).

(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).

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 officers

Rule 64 Rule 65
Directed only to the judgments, final orders or Directed to any tribunal, board or officers
resolutions of the COMELEC and COA; exercising judicial or quasi-judicial functions;
Filed within 60 days from notice of the
Filed within 30 days from notice of the judgment;
judgment;
The filing of a motion for reconsideration or a motion
for new trial if allowed, interrupts the period for the The period within which to filed the petition if the
filing of the petition for certiorari. If the motion is motion for reconsideration or new trial is denied,
denied, the aggrieved party may file the petition within is 60 days from notice of the denial of the
the remaining period, but which shall not be less than motion.
5 days reckoned from the notice of denial.

RULE 65. CERTIORARI, PROHIBITION AND MANDAMUS

► A petition for certiorari under Rule 65 is proper to correct errors of jurisdiction committed by the lower court,
or grave abuse of discretion which is tantamount to lack of jurisdiction. This remedy can be availed of when
there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law. (Cunanan v. Court
of Appeals, G.R. No. 205573, August 17, 2016)

► It is a limited form of review confined to errors of jurisdiction. An error of jurisdiction is one where the officer
or tribunal acted without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction. On the other hand, an error of judgment is one which the court may commit in the
exercise of its jurisdiction. They only involve errors in the court or tribunal's appreciation of the facts and of the
law. Errors of jurisdiction are reviewable on certiorari; errors of judgment, only by appeal. (Tan Po Chu v. CA,
G.R. No. 184348, April 4, 2016)

► If appeal is available, an appeal must be taken even if the ground relied upon is grave abuse of discretion.
(Yellow Bus Line Employees Union v. Yellow Bus Line, Inc., G.R. No. 190876, June 15, 2016 citing Philippine
Electric Corporation v. Court of Appeals, et al., G.R. No. 168612, December 10, 2014)

► Exception to the rule, the Court has allowed petitions for certiorari to be filed in lieu of an appeal "(a) when
the public welfare and the advancement of public policy dictate; (b) when the broader interests of justice so
require; (c) when the writs issued are null; and (d) when the questioned order amounts to an oppressive
exercise of judicial authority." (Yellow Bus Line Employees Union v. Yellow Bus Line, Inc., Ibid)

DISTINCTIONS

CERTIORARI PROHIBITION MANDAMUS

Mandamus is an extraordinary writ

commanding a tribunal,
Certiorari is an extraordinary writ corporation, board or person, to do
Prohibition is an extraordinary
annulling or modifying the an act required to be done:
writ commanding a tribunal,
proceedings of a tribunal, board
corporation, board or person,
or officer exercising judicial or
whether exercising judicial, quasi- (a) When he unlawfully neglects
quasi-judicial functions when such
judicial or ministerial functions, to the performance of an act which
tribunal, board or officer has
desist from further proceedings the law specifically enjoins as a
acted without or in excess of its or
when said proceedings are duty, and there is no other plain,
his jurisdiction, or with grave
without or in excess of its speedy and adequate remedy in
abuse of discretion amounting to
jurisdiction, or with abuse of its the ordinary course of law; or
lack or excess of jurisdiction,
discretion, there being no appeal
there being no appeal or any
or any other plain, speedy and (b) When one unlawfully excludes
other plain, speedy and adequate
adequate remedy in the ordinary another from the use and
remedy in the ordinary course of
course of law (Sec. 2, Rule 65). enjoyment of a right or office to
law (Sec. 1, Rule 65).
which the other is entitled (Sec. 3,
Rule 65).
Directed against a person
Directed against a person
exercising judicial or quasi- Directed against a person
exercising to judicial or quasi-
judicial functions, or ministerial exercising ministerial duties
judicial functions
functions
Object is to correct Object is to prevent Object is to compel
Purpose is to compel performance
Purpose is to annul or modify the Purpose is to stop the
of the act required and to collect
proceedings proceedings
damages
Person or entity must have acted Person or entity must have acted
Person must have neglected a
without or in excess of without or in excess of
ministerial duty or excluded
jurisdiction, or with grave abuse jurisdiction, or with grave abuse
another from a right or office
of discretion. of discretion

REQUISITES

CERTIORARI PROHIBITION MANDAMUS

That the petition is directed The petition is directed against a
against a tribunal, board or officer tribunal, corporation, board or The plaintiff has a clear legal right
exercising judicial or quasi-judicial person exercising judicial, quasi- to the act demanded;
functions; judicial, or ministerial functions;
The tribunal, board or officer has The tribunal, corporation, board It must be the duty of the
acted without, or in excess of or person must have acted defendant to perform the act,
jurisdiction or with abuse of without or in excess of jurisdiction which is ministerial and not
discretion amounting to lack or or with grave abuse of discretion discretionary, because the same is
excess or jurisdiction amounting to lack of jurisdiction; mandated by law;
There is no appeal or any plain, There is no appeal or any plain, The defendant unlawfully neglects
speedy and adequate remedy in speedy and adequate remedy in the performance of the duty
the ordinary course of law. the ordinary course of law. enjoined by law;
Accompanied by a certified true Accompanied by a certified true
copy of the judgment or order copy of the judgment or order
subject of the petition, copies of subject of the petition, copies of There is no appeal or any plain,
all pleadings and documents all pleadings and documents speedy and adequate remedy in
relevant and pertinent thereto, relevant and pertinent thereto, the ordinary course of law.
and sworn certification of non- and sworn certification of non-
forum shopping under Rule 46. forum shopping under Rule 46.

► The remedies of appeal and certiorari are mutually exclusive and not alternative or successive. A party cannot
substitute the special civil action of certiorari under Rule 65 of the Rules of Court for the remedy of appeal. The
existence and availability of the right of appeal are antithetical to the availability of the special civil action for
certiorari. (HGL Development Corp. v. Penuela, G.R. No. 181353, June 6, 2016)

CONDITION SINE QUA NON

The general rule is that a motion for reconsideration is a condition sine qua non before a petition for certiorari
may lie, its purpose being to grant an opportunity for the court a quo to correct any error attributed to it by a
re-examination of the legal and factual circumstances of the case. (People v. Valdez, G.R. Nos. 216007-09,
December 8, 2015)

Exceptions:

(a) where the order is a patent nullity, as where the court a quo has no jurisdiction;
(b) where the questions raised in the certiorari proceedings have been duly raised and passed upon by
the lower court, or are the same as those raised and passed upon in the lower court;
(c) where there is an urgent necessity for the resolution of the question and any further delay would
prejudice the interests of the Government or of the petitioner or the subject matter of the petition is
perishable;
(d) where, under the circumstances, a motion for reconsideration would be useless;
(e) where petitioner was deprived of due process and there is extreme urgency for relief;
(f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by
the trial court is improbable;
(g) where the proceedings in the lower court are a nullity for lack of due process;
(h) where the proceeding was ex parte or in which the petitioner had no opportunity to object; and,
(i) where the issue raised is one purely of law or public interest is involved. (Ibid)

WHEN FILED. (Sec. 4)

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 sixty
(60) day period shall be counted from notice of the denial of said motion.

No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding
fifteen (15) days. (4a) (Bar Matter No. 803, 21 July 1998; A.M. No. 00-2-03-SC)

WHERE FILED (As amended by AM No. 07-7-12-SC, Dec. 12, 2007)

If the petition relates to an act or an omission of an MTC,

Regional Trial Court
corporation, board, officer or person
In election cases involving an act or an omission of an
Commission on Elections
MTC or RTC
Court of Appeals or the Sandiganbayan Whether or not in aid of appellate jurisdiction
Subject to the doctrine of hierarchy of courts and only
Supreme Court when compelling reasons exist for not filing the same with
the lower courts

RULE 66. QUO WARRANTO

It is a special civil action commenced by a verified petition against (a) a person who usurps a public office,
position or franchise; (b) a public officer who performs an act constituting forfeiture of a public office; or (c) an
association which acts as a corporation within the Philippines without being legally incorporated or without
lawful authority to do so (Sec. 1).

► Quo warranto is a remedy to try disputes with respect to the title to a public office. Generally, quo warranto
proceedings are commenced by the Government as the proper party-plaintiff. However, under Section 5, Rule
66 of the Rules of Court, an individual may commence such action if he claims to be entitled to the public office
allegedly usurped by another. We stress that the person instituting the quo warranto proceedings in his own
behalf must show that he is entitled to the office in dispute; otherwise, the action may be dismissed at any
stage. Emphatically, Section 6, Rule 66 of the same Rules requires the petitioner to state in the petition his
right to the public office and the respondent's unlawful possession of the disputed position.

As early as 1905, the Court already held that for a petition for quo warranto to be successful, the suing
private individual must show a clear right to the contested office. His failure to establish this right warrants the
dismissal of the suit for lack of cause of action; it is not even necessary to pass upon the right of the defendant
who, by virtue of his appointment, continues in the undisturbed possession of his office. (General v. Urro, G.R.
No. 191560, March 29, 2011)

DISTINCTIONS: QUO WARRANTO UNDER RULE 66 vs. QUO WARRANTO UNDER THE ELECTION CODE

QUO WARRANTO (RULE 66) QUO WARRANTO (ELECTION CODE)

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

JUDGMENT IN QUO WARRANTO ACTION

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
the parties to the action as justice requires (Sec. 9).

RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC OFFICE

If the petitioner is adjudged to be entitled to the office, he may sue for damages against the alleged usurper
within one (1) year from the entry of judgment establishing his right to the office in question (Sec. 11).

RULE 67. EXPROPRIATION

(1) Expropriation or the exercise of the power of eminent domain is the inherent right of the state and of those
entities to which the power has been lawfully delegated to condemn private property to public use upon
payment of just compensation. (Republic v. Legaspi, Sr., G.R. No. 177611, April 18, 2012)

MATTERS TO ALLEGE IN COMPLAINT FOR EXPROPRIATION

An expropriation proceeding is commenced by the filing of a verified complaint which shall:

(a) State with certainty the right of the plaintiff to expropriation and the purpose thereof;
(b) Describe the real or personal property sought to be expropriated; and
(c) Join as defendants all persons owning or claiming to own, or occupying, any part of the property or
interest therein showing as far as practicable the interest of each defendant. If the plaintiff cannot
with accuracy identify the real owners, averment to that effect must be made in the complaint (Sec.
1).

TWO STAGES IN EVERY ACTION FOR EXPROPRIATION

(a) the condemnation of the property after it is determined that its acquisition will be for a public purpose or
public use; and,
(b) the determination of just compensation to be paid for the taking of private property to be made by the court
with the assistance of not more than three commissioners. (Republic v. Legaspi, Sr., G.R. No. 177611, April
18, 2012)

The nature of these two stages was discussed in the following wise in the case of Municipality of Biñan vs.
Judge Garcia, (259 Phil. 1058, 1068-69 (1989) to wit:

1. There are two (2) stages in every action for expropriation. The first is concerned with the
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 involved in the suit. It ends with an order, if not of
dismissal of the action, "of condemnation declaring that the plaintiff has a lawful right to take the
property sought to be condemned, for the public use or purpose described in the complaint, upon the
 payment of just compensation to be determined as of the date of the filing of the complaint." An order
of dismissal, if this be ordained, would be a final one, of course, since it finally disposes of the action
and leaves nothing more to be done by the Court on the merits. So, too, would an order of
condemnation be a final one, for thereafter, as the Rules expressly state, in the proceedings before the
Trial Court, "no objection to the exercise of the right of condemnation (or the propriety thereof) shall
be filed or heard.
2.
The second phase of the eminent domain action is concerned with the determination by the Court of "the
just compensation for the property sought to be taken." This is done by the Court with the assistance
of not more than three (3) commissioners. The order fixing the just compensation on the basis of the
evidence before, and findings of, the commissioners would be final, too. It would finally dispose of the
second stage of the suit, and leave nothing more to be done by the Court regarding the issue.
Obviously, one or another of the parties may believe the order to be erroneous in its appreciation of the
evidence or findings of fact or otherwise. Obviously, too, such a dissatisfied party may seek a reversal
of the order by taking an appeal therefrom.

WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO POSSESSION OF THE REAL PROPERTY, IN
RELATION TO RA 8974

Except for the acquisition of right-of-way, site or location for any national government infrastructure project
through expropriation, the expropriator shall have the right to take or enter upon the possession of the real
property involved if he deposits with the authorized government depositary an amount equivalent to the
assessed value of the property for purposes of taxation to be held by such bank subject to the orders of the
court. such deposit shall be in money, unless in lieu thereof the court authorizes the deposit of a certificate of
deposit of a government bank of the Philippines payable on demand to the authorized government depositary
(Sec. 2, Rule 67).

NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST COMPENSATION

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

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 (Sec. 4).

ASCERTAINMENT OF JUST COMPENSATION

The order of expropriation merely declares that the plaintiff has the lawful to expropriate the property but
contains no ascertainment of the compensation to be paid to the owner of the property. So upon the rendition
of the order of expropriation, the court shall appoint not more than three (3) commissioners to ascertain the
just compensation for the property. Objections to the appointment may be made within 10 days from service of
the order of appointment (Sec. 5). The commissioners are entitled to fees and their fees shall be taxed as part
of the costs of the proceedings, and all costs shall be paid by the plaintiff except those costs of rival claimants
litigating their claims (Sec. 12).

Where the principal issue is the determination of just compensation, a hearing before the commissioners is
indispensable to allow the parties to present evidence on the issue of just compensation. Although the findings
of the commissioners may be disregarded and the trial court may substitute its own estimate of the value, the
latter may do so only for valid reasons, that is where the commissioners have applied illegal principles to the
evidence submitted to them, where they have disregarded a clear preponderance of evidence, or where the
amount allowed is either grossly inadequate or excessive.

► It is settled that the taking of private property for public use, to be compensable, need not be an actual
physical taking or appropriation. Indeed, the expropriator's action may be short of acquisition of title, physical
possession, or occupancy but may still amount to a taking. Compensable taking includes destruction,
restriction, diminution, or interruption of the rights of ownership or of the common and necessary use and
enjoyment of the property in a lawful manner, lessening or destroying its value. It is neither necessary that the
owner be wholly deprived of the use of his property, nor material whether the property is removed from the
possession of the owner, or in any respect changes hands. (National Power Corp. v. Spouses Malijan, G.R. Nos.
211731 & 211818, December 7, 2016)

APPOINTMENT OF COMMISSIONERS; COMMISSIONER’S REPORT; COURT ACTION UPON

COMMISSIONER’S REPORT

APPOINTMENT. 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 (Sec. 5).

PROCEEDINGS. 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 (Sec. 6).

REPORT.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 (Sec. 7).

ACTION UPON THE 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 the property essential to the exercise of his right of expropriation, and to the
defendant just compensation for the property so taken (Sec. 8).

RIGHTS OF PLAINTIFF UPON JUDGMENT AND PAYMENT

After payment of the just compensation as determined in the judgment, the plaintiff shall have the right to
enter upon the property expropriated and to appropriate the same for the public use or purpose defined in the
judgment or to retain possession already previously made in accordance with Sec. 2, Rule 67.
► "[T]he recognized rule is that title to the property expropriated shall pass from the owner to the expropriator
only upon full payment of the just compensation. (Republic v. Mupas, G.R. Nos. 181892, 209917, 209696 &
209731, April 19, 2016)

EFFECT OF RECORDING OF JUDGMENT

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 (Sec. 13).

RULE 68. FORECLOSURE OF REAL ESTATE MORTGAGE

A real estate mortgage is an accessory contract executed by a debtor in favor of a creditor as security for the
principal obligation. This principal obligation is a simple loan or mutuum described in Art. 1953, Civil Code. To
be a real estate mortgage, the contract must be constituted on either immovables (real property) or inalienable
real rights. If constituted on movables, the contract is a chattel mortgage (Art. 2124, CC).

► A mortgage contract may have a provision in which the mortgage is a security for past, present and future
indebtedness. This clause known as a dragnet clause or blanket mortgage clause has its origins in American
jurisprudence. The Supreme Court ruled that mortgages given to secure future advancements are valid and
legal contracts (Prudential Bank vs. Alviar, 464 SCRA 353 reiterated in PNB v. Heirs of Sps. Alonday, G.R. No.
171865, October 12, 2016)
► There is no question, indeed, that all-embracing or dragnet clauses have been recognized as valid means to
secure debts of both future and past origins. Even so, we have likewise emphasized that such clauses were an
exceptional mode of securing obligations, and have held that obligations could only be deemed secured by the
mortgage if they came fairly within the terms of the mortgage contract. For the all-embracing or dragnet
clauses to secure future loans, therefore, such loans must be sufficiently described in the mortgage contract. If
the requirement could be imposed on a future loan that was uncertain to materialize, there is a greater reason
that it should be applicable to a past loan, which is already subsisting and known to the parties. (Ibid)

JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE

(1) If after the trial, the court finds that the matters set forth in the complaint are true, it shall render a
judgment containing the following matters:

(a) An ascertainment of the amount due to the plaintiff upon the mortgage debt or obligation, including
interest and other charges as approved by the court, as well as costs;
(b) A judgment of the sum found due;
(c) An order that the amount found due be paid to the court or to the judgment obligee within the period
of not less than 90 days nor more than 120 days from the entry of judgment; and
(d) An admonition that in default of such payment the property shall be sold at public auction to satisfy
the judgment (Sec. 2).

(2) The judgment of the court on the above matters is considered a final adjudication of the case and hence, is
subject to challenge by the aggrieved party by appeal or by other post-judgment remedies.

(3) The period granted to the mortgagor for the payment of the amount found due by the court is not just a
procedural requirement but s substantive right given by law to the mortgagee as his first chance to save his
property from final disposition at the foreclosure sale (De Leon vs. Ibañez, 95 Phil. 119).

SALE OF MORTGAGED PROPERTY; EFFECT

(1) The confirmation of the sale shall divest the rights in the property of all parties to the action and shall vest
their rights in the purchaser, subject to such rights of redemption as may be allowed by law (Sec. 3). The title
vests in the purchaser upon a valid confirmation of the sale and retroacts to the date of sale (Grimalt vs.
Vasquez, 36 Phil. 396).

(2) The import of Sec. 3 includes one vital effect: The equity of redemption of the mortgagor or redemptioner is
cut-off and there will be no further redemption, unless allowed by law (as in the case of banks as mortgagees).
The equity of redemption starts from the ninety-day period set in the judgment of the court up to the time
before the sale is confirmed by an order of the court. once confirmed, no equity of redemption may further be
exercised.

(3) The order of confirmation is appealable and if not appealed within the period for appeal becomes final. 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
and he may secure a writ of possession, upon, motion, from the court which ordered the foreclosure unless a
third party is actually holding the same adversely to the judgment obligor (Sec. 3).

DISPOSITION OF PROCEEDS OF SALE

(1) The proceeds of the 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. If there be
any further balance after paying them or if there be no junior encumbrancers, the same shall be paid to the
mortgagor or any person entitled thereto (Sec. 4).

DEFICIENCY JUDGMENT

If 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. Execution may issue immediately if the balance is
all due the plaintiff shall be entitled to execution at such time as the remaining balance shall become due and
such due date shall be stated in the judgment (Sec. 6).

INSTANCES WHEN COURT CANNOT RENDER DEFICIENCY JUDGMENT

Where the debtor-mortgagor is a non-resident and who at the time of the filing of the action for foreclosure and
during the pendency of the proceedings was outside the Philippines, it is believed that a deficiency judgment
under Sec. 6 would not be procedurally feasible. A deficiency judgment is by nature in personam and
jurisdiction over the person is mandatory. Having been outside the country, jurisdiction over his person could
not have been acquired.

► In an action for judicial foreclosure of mortgage, the factual issues to be resolved are: whether or not the
debtor-mortgagor was in default, and whether the mortgagee has the right to foreclose the mortgage. (Mortel
v. Brundige, G.R. No. 190263, June 15, 2015)

JUDICIAL FORECLOSURE VERSUS EXTRAJUDICIAL FORECLOSURE

 EXTRA-JUDICIAL FORECLOSURE (ACT 3135) JUDICIAL FORECLOSURE (RULE 68)
No complaint is filed; Complaint is filed with the courts;
No right of redemption except when mortgagee is a
There is a right of redemption. Mortgagor has a
banking institution; equity of redemption only (90 to
right of redemption for 1 year from registration of
120 days, and any time before confirmation of
the sale;
foreclosure sale);
Mortgagee has to file a separate action to recover Mortagagee can move for deficiency judgment in the
any deficiency; same action
Buyer at public auction becomes absolute owner
Buyer at public auction becomes absolute owner only
only after finality of an action for consolidation of
after confirmation of the sale;
ownership;
Mortgagee is given a special power of attorney in
Mortgagee need not be given a special power of
the mortgage contract to foreclose the mortgaged
attorney.
property in case of default.

EQUITY OF REDEMPTION VERSUS RIGHT OF REDEMPTION

EQUITY OF REDEMPTION RIGHT OF REDEMPTION

A right granted to a debtor mortgagor, his successor in
The right of defendant mortgagor to extinguish interest or any judicial creditor or judgment creditor or any
the mortgage and retain ownership of the person having a lien on the property subsequent to the
property by paying the debt within 90 to 120 mortgage or deed of trust under which the property is sold
days after the entry of judgment or even after to repurchase the property within one year even after the
the foreclosure sale but prior to confirmation. confirmation of the sale and even after the registration of
the certificate of foreclosure sale.
There is no right of redemption in a judicial foreclosure of
mortgage under Rule 68. This right of redemption exists
May be exercised even after the foreclosure
only in extrajudicial foreclosures where there is always a
sale provided it is made before the sale is
right of redemption within one year from the date of sale
confirmed by order of the court.
(Sec. 3, Act 3135), but interpreted by the Court to mean
one year from the registration of the sale.
May also exist in favor or other encumbrances.
If subsequent lien holders are not impleaded
as parties in the foreclosure suit, the judgment
General rule: In judicial foreclosures there is only an
in favor of the foreclosing mortgagee does not
equity of redemption which can be exercised prior to the
bind the other lien holders. In this case, their
confirmation of the foreclosure sale. This means that after
equity of redemption remains unforeclosed. A
the foreclosure sale but before its confirmation, the
separate foreclosure proceeding has to be
mortgagor may exercise his right of pay the proceeds of
brought against them to require them to
the sale and prevent the confirmation of the sale.
redeem from the first mortgagee or from the
party acquiring the title to the mortgaged
property.
Exception: there is a right of redemption if the foreclosure
If not by banks, the mortgagors merely have
is in favor of banks as mortgagees, whether the
an equity of redemption, which is simply their
foreclosure be judicial or extrajudicial. This right of
right, as mortgagor, to extinguish the
redemption is explicitly provided in Sec. 47 of the General
mortgage and retain ownership of the property
Banking Law of 2000. While the law mentions the
by paying the secured debt prior to the
redemption period to be one year counted from the date of
confirmation of the foreclosure sale.
registration of the certificate in the Registry of Property

RULE 69. PARTITION

Who may file petition?

A person having the right to compel the partition of real estate may do so as provided 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 other persons interested in the property (Sec. 1) or of an
estate composed of personal property, or both real and personal property (Sec. 13)

► The plaintiff is a person who is supposed to be a co-owner of the property or estate sought to be
partitioned. The defendants are all the co-owners. All the co-owners must be joined. Accordingly, an action will
not lie without the joinder of all co-owners and other persons having interest in the property (Reyes vs.
Cordero, 46 Phil. 658).

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 partition and accounting may be appealed by any party aggrieved thereby.(Sec. 2)

► [T]he provisions on co-ownership under the Civil Code shall apply in the partition of the properties co-
owned. It is stated under Article 1079 of the Civil Code that "partition, in general, is the separation, division and
assignment of a thing held in common among those to whom it may belong. The thing itself may be divided, or
its value." As to how partition may be validly done, Article 496 of the Civil Code is precise that "partition may be
made by agreement between the parties or by judicial proceedings." The law does not impose a judicial
approval for the agreement to be valid. (Diaz-Salgado v. Anson, G.R. No. 2044494, July 27, 2016)

INSTANCES WHEN A CO-OWNER MAY NOT DEMAND PARTITION AT ANY TIME:

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

MATTERS TO ALLEGE IN THE COMPLAINT FOR PARTITION

The plaintiff shall state in his complaint, the nature and extent of his title, an adequate description of the real
estate of which partition is demanded, and shall join as defendants all other persons interested in the property
(Sec. 1). He must also include a demand for the accounting of the rents, profits and other income from the
property which he may be entitled to (Sec. 8).

TWO (2) STAGES IN EVERY ACTION FOR PARTITION

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

ORDER OF PARTITION AND PARTITION BY AGREEMENT

During the trial, the court shall determine whether or not the plaintiff is truly a co-owner of the property, that
there is indeed a co-ownership among the parties, and that a partition is not legally proscribed thus may be
allowed. If the court so finds that the facts are such that a partition would be in order, and that the plaintiff has
a right to demand partition, the court will issue an order of partition.

The court shall order the partition of the property among all the parties in interest, if after trial it finds that the
plaintiff has the right to partition (Sec. 2).

Partition by agreement. The order of partition is one that directs the parties or co-owners to partition the
property and the parties may make the partition among themselves by proper instruments of conveyance, if
they agree among themselves. If they do agree, the court shall then confirm the partition so agreed upon by all
of 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 (Sec. 2).

Partition by commissioners; Appointment of commissioners, Commissioner’s report; Court action

upon commissioner’s report
Sec. 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.

Sec. 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.

Sec. 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 as 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.

Sec. 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.

Sec. 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.

JUDGMENT AND ITS EFFECTS

The judgment shall state definitely, by metes and bounds and adequate description, the particular portion of the
real estate assigned to each party, 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
(Sec. 11).

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 (Sec. 13).

PRESCRIPTION OF ACTION
Prescription of action does not run in favor of a co-owner or co-heir against his co-owner or co-heirs as long as
there is a recognition of the co-ownership expressly or impliedly (Art. 494).

The action for partition cannot be barred by prescription as long as the co-ownership exists (Aguirre vs. CA, 421
SCRA 310).

But while the action to demand partition of a co-owned property does not prescribe, a co-owner may acquire
ownership thereof by prescription where there exists a clear repudiation of the co-ownership and the co-owners
are apprised of the claim of adverse and exclusive ownership.

RULE 70. FORCIBLE ENTRY AND UNLAWFUL DETAINER

DEFINITIONS AND DISTINCTION

FORCIBLE ENTRY UNLAWFUL DETAINER
The possession of the defendant is lawful from the
The possession of the defendant is unlawful from the
beginning becomes illegal by reason of the expiration
beginning; issue is which party has prior de facto
or termination of his right to the possession of the
possession;
property;
The law does not require previous demand for the Plaintiff must first make such demand which is
defendant to vacate; jurisdictional in nature;
The plaintiff must prove that he was in prior physical
The plaintiff need not have been in prior physical
possession of the premises until he was deprived by
possession;
the defendant; and

DISTINGUISHED FROM ACCION PUBLICIANA AND ACCION REINVINDICATORIA

ACCION PUBLICIANA ACCION REINVINDICATORIA
Accionpubliciana is an ordinary civil proceeding to An action for the recovery of the exercise of
determine the better right of possession of realty ownership, particularly recovery of possession as an
independent of title. It refers to an ejectment suit attribute or incident of ownership;
filed after the expiration of one year from the accrual
of the cause of action or from the unlawful
withholding of possession of the realty. (Supapo v.
Spouses De Jesus, G.R. No. 198356, April 20, 2015)
The basis of the recovery of possession is the
plaintiff’s real right of possession or jus possessionis, The basis for the recovery of possession is ownership
which is the right to the possession of the real itself.
property independent of ownership.

WHO MAY INSTITUTE PROCEEDING 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 persons 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. (SEC. 1)

LESSOR TO PROCEED AGAINST LESSEE ONLY AFTER DEMAND.

Unless otherwise stipulated, such action by the lesser 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 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. (Sec. 2)

SUMMARY PROCEDURE.

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. (sec. 3)

WHEN DEMAND IS NECESSARY

Unless there exists a stipulation to the contrary, an unlawful detainer case shall be commenced only after the
demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee (Sec. 2). The
requirement for a demand implies that the mere failure of the occupant to pay rentals or his failure to comply
with the conditions of the lease does not ipso facto render his possession of the premises unlawful. It is the
failure to comply with the demand that vests upon the lessor a cause of action.

The demand may be in the form of a written notice served upon the person found in the premises. The demand
may also be made by posting a written notice on the premises if no person can be found thereon (Sec. 2). It
has been ruled, however, that the demand upon a tenant may be oral (Jakihaca vs. Aquino, 181 SCRA 67).
Sufficient evidence must be adduced to show that there was indeed a demand like testimonies from
disinterested and unbiased witnesses.

PRELIMINARY INJUNCTION AND PRELIMINARY MANDATORY INJUNCTION

The court may grant preliminary injunction, in accordance with the provisions of Rule 58, to prevent the
defendant from committing further acts of dispossession against the plaintiff. A possessor deprived of his
possession through forcible entry or unlawful detainer may, within five (5) days from the filing of the complaint,
present a motion in the action for forcible entry or unlawful detainer for the issuance of a writ of preliminary
mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days
from the filing thereof (Sec. 15)

► It bears emphasizing that in ejectment suits, the only issue for resolution is the physical or material
possession of the property involved, independent of any claim of ownership by any of the party litigants.
However, the issue of ownership may be provisionally ruled upon for the sole purpose of determining who is
entitled to possession de facto. Therefore, the provisional determination of ownership in the ejectment case
cannot be clothed with finality. (Bradford United Church of Christ, Inc. v. Ando, G.R. No. 195669, May 30,
2016)

► We reiterate that our pronouncement in this case on the issue of ownership is merely provisional and only for
the purpose of resolving the issue of who between the parties has the right of possession of the subject
property. The petitioner or the respondents may still question the validity of the documents used by the other
party to support their claim of ownership, and to recover possession and ownership of the subject property in a
proper suit. (Baluyo y Gamora v. Spouses Dela Cruz, G.R. No. 197058, October 14, 2015)

HOW TO STAY THE IMMEDIATE EXECUTION OF JUDGMENT

(1) Defendant must take the following steps to stay the execution of the judgment:
(a) Perfect an appeal;
(b) File a supersedeas bond to pay for the rents, damages and costs accruing down to the time of the
judgment appealed from; and
(i)Deposit periodically with the RTC, during the pendency of the appeal, the adjudged amount of rent due under
the contract or if there be no contract, the reasonable value of the use and occupation of the premises
(Sec. 19).

(2) Exceptions to the rule:

(a)Where delay in the deposit is due to fraud, accident, mistake, or excusable negligence;
 (b) Where supervening events occur subsequent to the judgment bringing about a material change in
the situation of the parties which makes execution inequitable; and
(c)Where there is no compelling urgency for the execution because it is not justified by the
circumstances.

(2) Prohibited pleadings and motions:

(a) Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter,
or failure to comply with section 12;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings, affidavits or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third-party complaints;
(l)Interventions

RULE 71. CONTEMPT

Contempt of court has been defined as a willful disregard or disobedience of a public authority. In its broad
sense, contempt is a disregard of, or disobedience to, the rules or orders of a legislative or judicial body or an
interruption of its proceedings by disorderly behavior or insolent language in its presence or so near thereto as
to disturb its proceedings or to impair the respect due to such a body. In its restricted and more usual sense,
contempt comprehends a despising of the authority, justice, or dignity of a court. The phrase contempt of court
is generic, embracing within its legal signification a variety of different acts.

The power to punish for contempt is inherent in all courts, and need not be specifically granted by statute. It
lies at the core of the administration of a judicial system. Indeed, there ought to be no question that courts
have the power by virtue of their very creation to impose silence, respect, and decorum in their presence,
submission to their lawful mandates, and to preserve themselves and their officers from the approach and
insults of pollution. The power to punish for contempt essentially exists for the preservation of order in judicial
proceedings and for the enforcement of judgments, orders, and mandates of the courts, and, consequently, for
the due administration of justice.The reason behind the power to punish for contempt is that respect of the
courts guarantees the stability of their institution; without such guarantee, the institution of the courts would be
resting on a very shaky foundation. ( G.R. No. 155849, LORENZO SHIPPING CORPORATION VS. DISTRIBUTION
MANAGEMENT ASSOCIATION OF THE PHILIPPINES, August 31, 2011)

The power to punish for contempt is inherent in all courts, and need not be specifically granted by statute.It lies
at the core of the administration of a judicial system.Indeed, there ought to be no question that courts have the
power by virtue of their very creation to impose silence, respect, and decorum in their presence, submission to
their lawful mandates, and to preserve themselves and their officers from the approach and insults of pollution.
The power to punish for contempt essentially exists for the preservation of order in judicial proceedings and for
the enforcement of judgments, orders, and mandates of the courts, and, consequently, for the due
administration of justice. The reason behind the power to punish for contempt is that respect of the courts
guarantees the stability of their institution; without such guarantee, the institution of the courts would be
resting on a very shaky foundation. (Ibid)

KINDS OF CONTEMPT; PURPOSE AND NATURE OF EACH

CIVIL CONTEMPT CRIMINAL CONTEMPT

It is the failure to do something ordered to be done
It is a conduct directed against the authority and
by a court or a judge for the benefit of the opposing
dignity of the court or a judge acting judicially; it is an
party therein and is therefore and offense against
obstructing the administration of justice which tends to
the party in whose behalf the violated order was
bring the court into disrepute or disrespect;
made;
The purpose is to compensate for the benefit of a The purpose is to punish, to vindicate the authority of
party; the court and protect its outraged dignity;
Should be conducted in accordance with the principles
The rules of procedure governing contempt
and rules applicable to criminal cases, insofar as such
proceedings or criminal prosecutions ordinarily are
procedure is consistent with the summary nature of
inapplicable to civil contempt proceedings.
contempt proceedings.

Proceedings for contempt are sui generis, in nature criminal, but may be resorted to in civil as well as criminal
actions, and independently of any action. They are of two classes, the criminal or punitive, and the civil or
remedial. A criminal contempt consists in 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. A civil contempt consists in the failure to do something ordered to be
done by a court or judge in a civil case for the benefit of the opposing party therein. It is at times difficult to
determine whether the proceedings are civil or criminal. In general, the character of the contempt of whether it
is criminal or civil is determined by the nature of the contempt involved, regardless of the cause in which the
contempt arose, and by the relief sought or dominant purpose. The proceedings are to be regarded as criminal
when the purpose is primarily punishment, and civil when the purpose is primarily compensatory or
remedial.Where the dominant purpose is to enforce compliance with an order of a court for the benefit of a
party in whose favor the order runs, the contempt is civil; where the dominant purpose is to vindicate the
dignity and authority of the court, and to protect the interests of the general public, the contempt is criminal.
Indeed, the criminal proceedings vindicate the dignity of the courts, but the civil proceedings protect, preserve,
and enforce the rights of private parties and compel obedience to orders, judgments and decrees made to
enforce such rights. (Ibid)

DIRECT CONTEMPT INDIRECT CONTEMPT

In general is committed in the presence of or so It is not committed in the presence of the court, but
near the court or judge as to obstruct or interrupt done at a distance which tends to belittle, degrade,
the proceedings before it; obstruct or embarrass the court and justice;
Acts constituting indirect contempt are:
(a) Misbehavior 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,
Acts constituting direct contempt are: process, order, or judgment of a court, including the act
a) Misbehavior in the presence of or so near the of a person who, after being dispossessed or ejected
court as to obstruct or interrupt the proceedings from any real property by the judgment or process of
before it; any court of competent jurisdiction, enters or attempts
b) Disrespect toward the court; or induces another to enter into or upon such real
c) Offensive personalities towards others; property, for the purpose of executing acts of
d) Refusal to be sworn as a witness or to answer as ownership or possession, or in any manner disturbs the
a witness; possession given to the person adjudged to be entitled
e) Refusal to subscribe an affidavit or deposition thereto;
when lawfully required to do so (Sec. 1); (c) Any abuse of or any unlawful interference with the
f) Acts of a party or a counsel which constitute processes or proceedings of a court not constituting
willful and deliberate forum shopping (Sec. 1, Rule direct contempt under section 1 of this Rule;
7); (d) Any improper conduct tending, directly or indirectly,
g) Unfounded accusations or allegations or words in to impede, obstruct, or degrade the administration of
a pleading tending to embarrass the court or to justice;
bring it into disrepute (Re: Letter dated 21 Feb. (e) Assuming to be an attorney or an officer of a court,
2005 of Atty. Noel Sorreda, 464 SCRA 32); and acting as such without authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person or
property in the custody of an officer by virtue of an
order or process of a court held by him (Sec. 3);

Contempt of court is of two kinds, namely: direct contempt, which is committed in the presence of or so near
the judge as to obstruct him in the administration of justice; and constructive or indirect contempt, which
consists of willful disobedience of the lawful process or order of the court.

The punishment for the first is generally summary and immediate, and no process or evidence is necessary
because the act is committed in facie curiae.The inherent power of courts to punish contempt of court
committed in the presence of the courts without further proof of facts and without aid of a trial is not open to
question, considering that this power is essential to preserve their authority and to prevent the administration
of justice from falling into disrepute; such summary conviction and punishment accord with due process of
law.There is authority for the view, however, that an act, to constitute direct contempt punishable by summary
proceeding, need not be committed in the immediate presence of the court, if it tends to obstruct justice or to
interfere with the actions of the court in the courtroom itself.Also, contemptuous acts committed out of the
presence of the court, if admitted by the contemnor in open court, may be punished summarily as a direct
contempt,although it is advisable to proceed by requiring the person charged to appear and show cause why he
should not be punished when the judge is without personal knowledge of the misbehavior and is informed of it
only by a confession of the contemnor or by testimony under oath of other persons.

In contrast, the second usually requires proceedings less summary than the first. The proceedings for the
punishment of the contumacious act committed outside the personal knowledge of the judge generally need the
observance of all the elements of due process of law, that is, notice, written charges, and an opportunity to
deny and to defend such charges before guilt is adjudged and sentence imposed.

Plainly, therefore, the word summary with respect to the punishment for contempt refers not to the timing of
the action with reference to the offense but to the procedure that dispenses with the formality, delay, and
digression that result from the issuance of process, service of complaint and answer, holding hearings, taking
evidence, listening to arguments, awaiting briefs, submission of findings, and all that goes with a conventional
court trial. (Ibid)

REMEDY AGAINST DIRECT CONTEMPT; PENALTY

The penalty for direct contempt depends upon the court which the act was committed;
(a) If the act constituting direct contempt was committed against an RTC or a court of equivalent or
higher rank, the penalty is a fine not exceeding 2,000 pesos or imprisonment not exceeding 10 days, or
both;
(b) If the act constituting direct contempt was committed against a lower court, the penalty is a fine not
 exceeding 200 pesos or imprisonment not exceeding one (1) day, or both (Sec. 1)’;

A person adjudged in direct contempt may not appeal therefrom. His remedy is a petition for certiorari or
prohibition directed against the court which adjudged him in direct contempt (Sec. 2).

REMEDY AGAINST INDIRECT CONTEMPT; PENALTY

(1) The punishment for indirect contempt depends upon the level of the court against which the act was
committed;
(a) Where the act was committed against an RTC or a court of equivalent or higher rank, he may be
punished by a fine not exceeding 30,000 pesos or imprisonment not exceeding 6 months, or both;
(b) Where the act was committed against a lower court, he may be punished by a fine not exceeding 5,000
pesos or imprisonment not exceeding one month, or both. Aside from the applicable penalties, if the
contempt consists in the violation of a writ of injunction, TRO or status quo order, he may also be
ordered to make complete restitution to the party injured by such violation of the property involved or
such amount as may be alleged and proved (Sec. 7);
(c) Where the act was committed against a person or entity exercising quasi-judicial functions, the penalty
imposed shall depend upon the provisions of the law which authorizes a penalty for contempt against
such persons or entities.
(2) The person adjudged in indirect contempt may appeal from the judgment or final order of the court in the
same manner as in criminal cases. The appeal will not however have the effect of suspending the judgment if
the person adjudged in contempt does not file a bond in an amount fixed by the court from which the appeal is
taken. This bond is conditioned upon his performance of the judgment or final order if the appeal is decided
against (Sec. 11).

HOW CONTEMPT PROCEEDINGS ARE COMMENCED

(1) Proceedings for indirect contempt may be initiated motuproprio by the court against which the contempt
was committed by an order or any other formal charge requiring the respondent to show cause why he should
not be punished for contempt.

In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting
particulars and certified true copies of documents or papers involved therein, and upon full compliance with the
requirements for filing initiatory pleadings for civil actions in the court concerned. If the contempt charges arose
out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact
but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the
consolidation of the contempt charge and the principal action for joint hearing and decision (Sec. 4).

ACTS DEEMED PUNISHABLE AS INDIRECT CONTEMPT

(1) After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon
within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of
the following acts may be punished for indirect contempt:

(a) Misbehavior 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 of a court, including the act
of a person who, after being dispossessed or ejected from any real property by the judgment or
process of any court of competent jurisdiction, enters or attempts or induces another to enter into or
upon such real property, for the purpose of executing acts of ownership or possession, or in any
manner disturbs the possession given to the person adjudged to be entitled thereto;
(c) Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting
direct contempt under section 1 of this Rule;
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration
of justice;
(e) Assuming to be an attorney or an officer of a court, and acting as such without authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an
order or process of a court held by him (Sec. 3).

(2) Failure by counsel to inform the court of the death of his client constitutes indirect contempt within the
purview of Sec. 3, Rule 71, since it constitutes an improper conduct tending to impede the administration of
justice.

WHEN IMPRISONMENT SHALL BE IMPOSED

When the contempt consists in the 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 concerned until he performs it (Sec. 8). Indefinite
incarceration may be resorted to where the attendant circumstances are such that the non-compliance with the
court order is an utter disregard of the authority of the court which has then no other recourse but to use its
coercive power. When a person or party is legally and validly required by a court to appear before it for a
certain purpose, and when that requirement is disobeyed, the only remedy left for the court is to use force to
bring the person or party before it.

The punishment is imposed for the benefit of a complainant or a party to a suit who has been injured aside from
the need to compel performance of the orders or decrees of the court, which the contemnor refuses to obey
although able to do so. In effect, it is within the power of the person adjudged guilty of contempt to set himself
free.

CONTEMPT AGAINST QUASI-JUDICIAL BODIES

The rules on contempt apply to contempt committed against persons or entities exercising quasi-judicial
functions or in case there are rules for contempt adopted for such bodies or entities pursuant to law, Rule 71
shall apply suppletorily (Sec. 12).

Quasi-judicial bodies that have the power to cite persons for indirect contempt can only do so by initiating them
in the proper RTC. It is not within their jurisdiction and competence to decide the indirect contempt cases. The
RTC of the place where contempt has been committed shall have jurisdiction over the charges for indirect
contempt that may be filed (Sec. 12).