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ATENEO CENTRAL BAR OPERATIONS 2007
Remedial Law
SUMMER REVIEWER

Advisers: Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Lynn C. Miciano, Ma. Cecillia G.
Natividad; Understudies: Neliza Macapayag, Benjamin C. Yan


SPECIAL CIVIL ACTIONS



SPECIAL CIVIL
ACTIONS
INITIATED BY
COMPLAINTS
SPECIAL CIVIL
ACTIONS
INITIATED BY
PETITIONS
Interpleader Declaratory Relief
Expropriation Review of the
Adjudication of the
Comelec/COA
Foreclosure of Real
Estate Mortgage
Certiorari
Partition Prohibition
Forcible Entry and
Unlawful Detainer
Mandamus
Quo Warranto
Contempt

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



RULE 62
INTERPLEADER

NATURE OF INTERPLEADER
This is a remedy whereby a person who has property
(personal or real) in his possession, or an obligation
to render wholly or partially, without claiming any right
to either, comes to court and asks that the persons
who claim the said property or demand compliance
with the obligation, be required to litigate among
themselves in order to determine finally who is
entitled to the same.

PURPOSE OF THE REMEDY
This remedy is afforded to protect a person NOT
against double liability but AGAINST double vexation
in respect of one liability.





DISTINCTION BETWEEN INTERPLEADER AND
INTERVENTION
INTERPLEADER INTERVENTION
An original action Ancillary action
Presupposes that plaintiff
has no interest in the
subject matter of the
action OR has an interest
therein in whole or in part
which is not disputed by
the other parties.
Proper in any of the four
situations: person having
a) legal interest in the
matter in litigation, or b)
success of either of the
parties, or c) an interest
against both; or d) is so
situated as to be
adversely affected by a
distribution or other
disposition of property in
the custody of the court
or of an officer thereof.
(Rule 19 Sec 1)
Defendants are sued
precisely to interplead
them
Defendants are original
parties to the pending
suits

Section 1. When interpleader proper

REQUISITES IN AN INTERPLEADER ACTION
1. Conflicting claims upon the same subject
matter are, or may be made, against the
plaintiff who claims no interest in the subject
matter or an interest (in whole or in part) which
is not disputed by the claimants. OR
2. There are two or more claimants to the fund or
thing in dispute through separate and different
interests. The claims must be adverse before
relief can be granted and the parties sought to
be interpleaded must be in a position to make
effective claims.
3. The subject matter (fund, thing or duty) over
which the parties assert adverse claims must
be one and the same and derived from the
same source.

WHEN TO FILE AN INTERPLEADER
An action in interpleader should be filed within a
reasonable time after a dispute has arisen without
waiting to be sued by either if the contending
claimants. Otherwise he may be barred by laches or
undue delay.

Section 2. Order
Section 3. Summons
Section 4. Motion to dismiss

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GROUNDS FOR MOTION TO DISMISS:
1. on the ground of impropriety of the interpleader
action; or
2. other appropriate grounds specified in rule 16.
(Rule 62, Sec 4)

Section 5. Answer and other pleadings

The court may, on motion, declare him in default and
thereafter render judgment barring him from any
claim in respect to the subject matter

The parties may file counterclaims, cross-claims,
third party complaints and responsive pleadings
thereto.

Wack Wack Golf v. Won 70 SCRA 165 (1976)
A defendant may file a counterclaim for
interpleader against the plaintiff and a third party also
claiming the subject matter of the suit.

Section 6. Determination
Section 7. Docket and other lawful fees, costs of
litigation and expenses as liens



RULE 63
DECLARATORY RELIEF AND SIMILAR
REMEDIES

PURPOSE OF DECLARATORY RELIEF
The purpose is to ask the court to make a proper
interpretation of a written instrument (deed, will,
contract, or any other written instrument) or a statute,
executive order, ordinance, or other governmental
regulation. It also adjudicates the legal rights, duties,
or status of parties.

Purpose is NOT to ask for injunction, execution or
other relief beyond the adjudication of the legal rights
which are the subject of controversy between the
parties. The relief is confined to the actual
controversy within the courts jurisdiction.

A third-party complaint is improper when the main
case is a special civil action for declaratory relief
since the court is confined merely to the interpretation
of the terms of the contract.






DISTINCTIONS BETWEEN ORDINARY ACTION
AND ACTION FOR DECLARATORY RELIEF
ORDINARY ACTION DECLARATORY
RELIEF
Writ of execution is
available
Writ of execution is not
available
There is a breach or
violation of a right
There is no breach or
violation of a right
Grounds for dismissal
Rule 16
Grounds for dismissal
a. rule 16
b. additional ground
where the decision of the
court would not terminate
the uncertainty or
controversy, or where the
declaration is not
necessary or proper
under the circumstances

SIMILAR REMEDIES WHICH MAY BE BROUGHT
UNDER RULE 63
1. Action for Reformation of an Instrument;
2. To quiet title to real property or remove clouds
therefrom;
3. Consolidate ownership under Article 1607.
(Sec 1, 2
nd
paragraph, Rule 63)

A procedural distinction between the two remedies is
that in the actions falling under the 2
nd
paragraph, the
court is bound to render judgment, whereas in
actions falling under the first paragraph, the court
may refuse to exercise the power to declare rights
and construe instruments. (Sec. 5, Rule 63)

Section 1. Who may file petition

WHO MAY FILE THE PETITION
Any person interested under a deed, will, contract or
other written instrument, or whose rights are affected
by a statute, executive order or regulation, ordinance,
or any other governmental regulation.

WHEN TO FILE PETITION
Before breach or violation of a right under a deed,
will, contract or other written instrument, or under a
statute or ordinance.

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



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REQUISITES OF ACTION FOR DECLARATORY
RELIEF
1. The SUBJ ECT MATTER of the controversy
must be a deed, will, contract or other written
instrument, statute, executive order, regulation
or ordinance
2. the terms of the said documents and the
validity thereof are DOUBTFUL and require
judicial construction
3. there must have been NO BREACH of the
documents in question
4. there must be an actual controversy or the
RIPENING SEEDS between persons whose
interests are adverse
5. the issue must be ripe for J UDICIAL
DETERMINATION
6. ADEQUATE RELIEF is not available

Section 2. Parties

PARTIES
All persons who have a claim or interest which would
be affected by the declaration.

A declaration shall not, except as otherwise provided
in the rules, prejudice the rights of persons not
parties to the action. (Sec. 2, Rule 63)

Section 3. Notice on Solicitor General
Section 4. Local government ordinances
Section 5. Court action discretionary

COURT HAS DISCRETION TO REFUSE TO
GRANT DECLARATORY RELIEF WHEN:
1. the decision will not terminate the uncertainty
or controversy giving right to the action
2. the declaration is not necessary or proper
under the circumstances

Section 6. Conversion into ordinary action

WHEN CONVERSION TO ORDINARY APPEALS IS
PROPER:
If after filing of petition for declaratory relief but before
the rendition of judgment, a breach or violation of the
instrument or statute occurs, then the same may be
converted into an ordinary action. (Sec. 6, Rule 63)

WHEN ACTION FOR DECLARATORY RELIEF
WILL NOT LIE:
a. action to obtain a judicial declaration of
citizenship
b. action to establish illegitimate filiation and
actions to determine hereditary rights
c. the subject of the action is a court decision
d. action is to resolve a political question
e. those determinative of the issues rather than
the construction of definite status, right or
relation
f. where the terms of the assailed ordinance are
not ambiguous or of doubtful meaning
g. where the contract or statute subject of the
case had been breached
h. When the purpose of the action is merely to
seek an advisory opinion from the court on a
moot question (enumerations from Feria, p.
437)



RULE 64
REVIEW OF JUDGMENTS AND FINAL ORDERS
OR RESOLUTIONS OF THE COMELEC AND THE
COA
Section 1. Scope

SUBJECT MATTER
J udgments and final orders or resolutions of the
COMELEC and the COA.

Section 2. Mode of review

The petition may be brought by the aggrieved party to
the Supreme Court on certiorari under Rule 65,
except otherwise provided.

The order to comment under Sec. 6, Rule 64 in case
the Supreme Court finds the petition sufficient in form
and substance, is equivalent to summons in ordinary
civil action.

Section 3. Time to file petition

Thirty (30) days from notice of judgment or final order
or resolution sought to be reviewed. Filing of motion
for new trial or reconsideration shall interrupt the
period. If the motion is denied, petition must be filed
within the remaining period but not less than 5 days
in any event reckoned from notice of denial.

RULE 64 RULE 65
Must be filed within 30
days from notice of
judgment or resolution
Must be filed within 60
days from notice of
judgment or resolution
If MR is denied, the
aggrieved party may file
the petition within the
remaining period, but
which shall not be less
than 5 days
If MR is denied, he
aggrieved party will have
another 60 days within
which to file the petition
counted from the notice
of denial

Section 4. Docket and other lawful fees
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Section 5. Form and contents of petition

a) Petition shall be verified and filed in 18 legible
copies;
b) Petition shall name the aggrieved party as
petitioner and join as respondents the
Commission concerned and the person(s)
interested in sustaining the judgment, final
order, or resolution a quo.
c) Petition shall state the facts with certainty,
present the issues involved clearly, set forth
the grounds and brief arguments relied upon,
and pray for judgment annulling or modifying
the question judgment, order or resolution.
d) Petition shall be accompanied by clearly
legible duplicate original or certified true copy
of the of the questioned judgment, order or
resolution, together with certified true copes of
material portions of the record as are referred
to therein, and other relevant and pertinent
documents.
e) Petition shall state the specific material dates
showing that it was filed within the period fixed.
f) Petition shall contain a sworn certification of
non-forum shopping
g) Petition shall be accompanied by proof of
service of a copy thereon on the Commission
concerned and on the adverse party, and of
the timely payment of docket and other lawful
fees.

Failure of petitioner to comply with any of the above
shall be sufficient ground for dismissal of the petition.

Section 6. Order to comment
Section 7. Comment of respondent

(a) 18 copies
(b) no other pleadings may be filed by any party
unless required or allowed by the court

Section 8. Effect of filing

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

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



RULE 65
CERTIORARI, PROHIBITION, AND MANDAMUS

AN ORIGINAL ACTION FOR CERTIORARI,
PROHIBITION AND MANDAMUS IS AN
INDEPENDENT ACTION. AS SUCH:
a. it does not interrupt the course of the principal
action
b. it does not affect the running of the
reglementary periods involved in the
proceedings
c. it does not stay the execution of the judgment,
unless a TRO or writ of preliminary injunction is
issued

CERTIORARI PROHIBITION MANDAMUS
Directed against
an entity or
person exercising
judicial or quasi-
judicial functions.
Directed
against an
entity or
person
exercising
judicial, quasi-
judicial, or
ministerial
functions
Directed
against an
entity or person
exercising
ministerial
functions
Entity or person
is alleged to have
acted: (1) without
jurisdiction; (2) in
excess of
jurisdiction; or (3)
with grave abuse
of discretion
amounting to lack
or excess of
jurisdiction
Entity or
person is
alleged to
have acted:
(1) without
jurisdiction;
(2) in excess
of jurisdiction;
or (3) with
grave abuse
of discretion
amounting to
lack or excess
of jurisdiction
Entity or person
is alleged to
have acted: (1)
neglected a
ministerial duty;
or (2) excluded
another from a
right or office
Purpose is to
annul or nullify a
proceeding
Purpose is to
have
respondent
desist from
further
proceeding
Purpose is for
respondent to
1. Do the
act
require
d and
2. To pay
damag
es.
Covers
discretionary acts
Covers
discretionary
and ministerial
acts
Covers
ministerial acts
This remedy is
corrective to
correct
This remedy is
preventive
and negative
This remedy is
affirmative or
positive (if the
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TIFF (U
are
usurpation of
jurisdiction
to restrain or
prevent
usurpation or
jurisdiction
performance of
a duty is
ordered) or it is
negative (if a
person is
ordered to
desist from
excluding
another from a
right or office.

Section 1. Petition for certiorari

CERTIORARI
It is a writ issued by a superior court to an inferior
court, board or officer exercising judicial or quasi-
judicial functions whereby the record of a particular
case is ordered to be elevated for review and
correction in matters of law.

CERTIORARI IS A PREROGATIVE WRIT
Never demandable as a matter or right, never
issued except in the exercise of judicial discretion.

CERTIORARI DISTINGUISHED FROM APPEAL BY
CERTIORARI

CERTIORARI UNDER
RULE 65
APPEAL BY
CERTIORARI UNDER
RULE 45
Only question is whether
or not respondent has
acted without or in
excess of jurisdiction or
with grave abuse of
discretion
Appellate court can only
review questions or
errors of law decided or
committed by the lower
court
Parties: Petitioner is the
aggrieved party;
Respondent is the
tribunal or officer
exercising judicial
function
Parties: appellant as
petitioner; appellee as
respondent
Writ of certiorari issues
for correction of errors of
jurisdiction only or grave
abuse of discretion
amounting to lack or
excess of jurisdiction
Appeal brings up for
review errors of judgment
committed by the court in
the exercise of its
jurisdiction amounting to
nothing more than an
error or judgment.

REQUISITES FOR ISSUANCE OF WRIT OF
CERTIORARI
1. Tribunal, board, or officer exercises judicial or
quasi-judicial functions;
2. Tribunal, board or officer has acted without or
in excess of jurisdiction or with grave abuse of
discretion; and
3. There is no appeal, or any plain, speedy, and
adequate remedy in the ordinary course of law.

GRAVE ABUSE OF DISCRETION
This occurs when an act of a court or tribunal was
performed in a capricious or whimsical exercise of
judgment which is equivalent to lack of jurisdiction.

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

WHEN CERTIORARI MAY BE INVOKED:
a. An appeal does not lie;
b. The right to appeal having been lost with or
without the appellants negligence, the court
has no jurisdiction to issue the order or the
decision which is the subject matter of the
remedy.

MOTION FOR RECONSIDERATION IN COURT OF
ORIGINAL PROCEEDING NECESSARY BEFORE
INVOKING PETITION FOR CERTIORARI
EXCEPTIONS
1. Where a Motion for Reconsideration would be
useless
2. Where the issue raised is one purely of law;
3. Where public interest is involved;
4. In case of urgency;
5. Where question of jurisdiction was squarely
raised, submitted to and met and decided by
the lower court; and
6. Where the order is a patent nullity.
7. Where the petitioner has been deprived of due
process
Section 2. Petition for prohibition
PROHIBITION
Legal remedy available to prevent inferior courts, or
other tribunals, corporations, boards, officers, or
persons, from usurping or exercising a jurisdiction
with which they have not been vested by law, to
prevent the unlawful and oppressive exercise of legal
authority and to provide for a fair and orderly
administration of justice.



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DISTINCTION BETWEEN PROHIBITION AND
INJUNCTION
INJUNCTION PROHIBITION
Directed only to the party
litigants, without in any
manner interfering with
the court
Directed to court itself,
commanding it to cease
from the exercise of a
jurisdiction to which it has
no legal claim

REQUISITES OF PROHIBITION
1. There must be a controversy
2. Respondent is exercising judicial, quasi-
judicial or ministerial functions
3. Respondents acted without or in excess of its
jurisdiction, or acted with grave abuse of
discretion;
4. There must be no appeal or other plain,
speedy and adequate remedy.
Section 3. Petition for mandamus
MANDAMUS- Command issuing from a court of law
of competent jurisdiction, in the name of the state or
sovereign, directed to some inferior court, tribunal, or
board, or to some corporation or person, requiring the
performance of a particular duty therein specified,
which duty results from the official station of the party
to whom the writ is directed, or from operation of law.
Purpose of Mandamus
Mandamus is employed to compel the performance,
when refused, of a ministerial duty, and NOT a
discretionary duty. It is available to compel action,
when refused, in matters involving judgment and
discretion, but NOT to direction action in one way or
another. It does not lie to require anyone to fulfill a
contractual obligation or to compel a course of
conduct, nor to control or review the exercise of
discretion.

GROUNDS FOR MANDAMUS
1. When any tribunal, corporation, board, officer
or person unlawfully neglects the
performance of an act which the law
specifically enjoins as a duty resulting from
office, trust, or station.
2. When any tribunal, corporation, board,
officer, or person unlawfully excludes another
from the use and enjoyment of a right or
office to which the other is entitled.

REQUISITES OF MANDAMUS:
1. There must be a clear legal right or duty
2. Act to be performed must be within the
powers of the respondent to perform such
that if the writ of mandamus was issued, he
can comply with it, or else the essence will
be defeated.
3. Respondent must be exercising a ministerial
duty a duty which is absolute and
imperative, and involves merely its execution.
4. Duty or act to be performed must be existing
a correlative right will be denied if not
performed by the respondents
5. No appeal or other plain, speedy and
adequate remedy in the ordinary course of
law.
Discretionary Act and Ministerial Act
Distinguished
DISCRETIONARY ACT MINISTERIAL ACT
The power or right
conferred upon them by
law acting officially
under certain
circumstances,
according to the
dictates of their own
judgment or conscience
and not controlled by
the judgment or
conscience of others.
One which an officer or
tribunal performs in a
given state of facts, in a
prescribed manner, in
obedience to the mandate
of legal authority, without
regard to or the exercise of
his own judgment upon the
propriety or impropriety of
the act done. Nothing is
left to the discretion of the
person who must perform.
GENERAL RULE: Mandamus will not issue when
administrative remedies are still available
EXCEPTIONS:
1) If party is in estoppel If he has led the other
party to believe that immediate judicial recourse is
available and acceptable.
2) Where pure questions of law are raised.

Mandamus and Quo Warranto Distinguished
MANDAMUS QUO WARRANTO
When the respondent
unlawfully excludes the
petitioner from an office
to which the latter is
entitled without usurping,
intruding into, or
unlawfully holding the
office.
When respondent claims
any right to the office and
usurps, intrudes into, or
unlawfully holds it against
the petitioner.
Both remedies may be combined with one another.
Mandamus and Injunction Distinguished
MANDAMUS INJUNCTION
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Remedial Preventive
To set in motion and to
compel action (active)
To restrain motion or to
enforce inaction
(conservative)
Motion to Dismiss Rules
16 and 17
Additional ground for
Motion to Dismiss Rule
58 Section 6
Section 4. Where and when petition filed
FOR CERTIORARI, PROHIBITION, AND
MANDAMUS
1. When petition filed:
Not later than sixty (60) days from notice of judgment,
order, or resolution. In case a motion for
reconsideration or new trial is timely filed, the 60 days
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 15 days.
2. Where petition filed:
Supreme Court; or
Regional Trial Court exercising jurisdiction over the
territorial area if it relates to the acts or omissions of
a lower court or of a corporation, board, officer or
person; or
Court of Appeals whether or not in the aid of its
appellate jurisdiction, and unless otherwise provided,
in its exclusive jurisdiction when it involves the acts or
omissions of a quasi-judicial agency; or
Sandiganbayan if it is in aid of its appellate
jurisdiction
3. Respondents:
Public Respondents the judge, court, quasi-
judicial agency, tribunal, corporation, board, officer or
persons whose acts or omissions are questioned
Private Respondents person(s) interested in
sustaining the proceedings in the court.
4. Duty of Respondents:
Private Respondent To appear and defend, both
in his behalf and in behalf of the public respondent(s)
affected by the proceedings.
Public Respondent Shall NOT appear in or file an
answer or comment to the petition or any pleading
therein, unless otherwise specifically directed by the
court. They are included in the petition only as
nominal parties.
JURISDICTIONAL QUESTIONS - questions having
to do with an indifferent disregard of law,
arbitrariness, and caprice or omission to weight
pertinent consideration, a decision arrived at without
rational deliberation, as distinguished from questions
that require digging into the merits and unearthing
errors of judgment which is the office on the hand of
review under Rule 45 of the Rules.
Section 5. Respondents and costs in certain
cases
Section 6. Order to comment
Section 7. Expediting proceedings; injunctive
relief
Section 8. Proceedings after comment is filed
If the petition is not sufficient in form and in
substance, the court may dismiss it outright
The court may dismiss the petition after the filing and
consideration of the comment without holding a
hearing or requiring the admission of memoranda
It is not mandatory on the court to receive evidence
and hear the petition
Section 9. Service and enforcement of order or
judgment


RULE 66
QUO WARRANTO

Quo Warranto under Rule 66 Distinguished from
Quo Warranto under Omnibus Election Code
RULE 66 OMNIBUS ELECTION
CODE
Basis is that occupant is
disqualified from holding
office by reason of
ineligibility or disloyalty
Challenge rights of a
person to hold office on
the ground of
irregularities in the
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conduct of the election
If successful, respondent
is ousted but petitioner
shall not automatically
assume the office
vacated

Successful protestant will
assume office if he had
obtained plurality of valid
votes
Presupposes that the
respondent is actually
holding office; action
must be commenced
within 1 year from the
cause of ouster or from
the time the right of
petitioner to hold office
arose
Petition must be filed
within 10 days from the
proclamation of the
candidate
The petitioner must be
the government or the
person entitled to the
office and who would
assume the same if his
action is successful
May be filed by any
registered candidate for
the same office and who,
even if the petition
prospers, would not be
entitled to that office
Person adjudged entitled
to the office may also
bring a separate action
against the respondent
to recover damages
Actual or compensatory
damages are recoverable
Section 1. Action by government against
individuals
QUO WARRANTO- Latin phrase meaning by what
authority. It is the remedy or proceeding by which
the sovereign or state determines the legality of a
claim which a party asserts to the use or exercise of
an office or franchise and ousts the holder from its
enjoyment, if the claim is not well founded, or if the
right to enjoy the privilege has been forfeited or lost.
QUO WARRANTO LIES AGAINST:
1. A person who usurps, intrudes into, or
unlawfully holds or exercises a public office,
position, or franchise.
2. A public officer who does or suffers an act
which, by the provision of law, constitutes a
ground for the forfeiture of his office; or
3. An association which acts as a corporation
within the Philippines without being legally
incorporated or without lawful authority so to
act.
Section 2. When Solicitor General or Public
Prosecutor must commence an action
Section 3. When Solicitor General or Public
Prosecutor must commence an action with
permission of the court
Section 4. When hearing had on application for
permission to commence action
Section 5. When an individual may commence
action
WHO COMMENCES THE ACTION
1. The Solicitor General or a public prosecutor,
when directed by the President of the
Philippines, or when upon complaint or
otherwise he has good reason to believe that
any case specified in the preceding section
can be established by proof. (mandatory quo
warranto)
2. The Solicitor General or a public prosecutor
may, with the permission of court, bring an
action at the request and upon the relation of
another person. (discretionary quo warranto)
3. A person claiming to be entitled to a public
office or position usurped or unlawfully held
or exercised by another may also bring an
action, in his own name.
Section 6. Parties and Contents of Petition
PETITIONER Name of the person who claims to be
entitled thereto, with an averment of his right to the
same and that the respondent is unlawfully in
possession thereof.
Petitioner must show that he is entitled to office held
by respondent, not merely that he has a preferential
right to be appointed.
Section 7. Venue:
(c) Supreme Court
(d) Court of Appeals
(e) Regional Trial Court exercising jurisdiction
over the territorial are where the respondent
or any of the respondents resides
(f) Regional Trial Court in the City of Manila,
CA, or SC When Solgen commences the
action
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Section 8. Period for pleadings and proceedings
may be reduced; action given precedence
Section 9. Judgment Where Usurpation Found
That Respondent be ousted and altogether excluded
therefrom, and that the petitioner or relator, as the
case may, recover his costs.
Such further judgment may be rendered determining
the respective rights in the public office, position or
franchise of all the parties to the action, as justice
requires.
Section 10. Rights of Persons Adjudged Entitled
to Office; delivery of books and papers; damages
If judgment be rendered in favor of the person
averred in the complaint to be entitled to the public
office, he may, after taking the oath of office and
executing any official bond required by law:
1. take upon himself the execution of the office;
2. may immediately thereafter demand all the
books and papers in the respondents
custody or control appertaining to the office
to which the judgment relates; and
3. May bring an action against the respondent
to recover damages sustained by such
persons by reason of usurpation.
Section 11. Limitations
Action must be commenced within 1 year after the
cause of such ouster, or the right of the petitioner to
hold such office or position, arose.
An action for damages in accordance with Sec. 10
should be commenced within 1 year after the entry of
the judgment establishing petitioners right to the
office in question.
Section 12. Judgment for costs
RULE 67
EXPROPRIATION
EMINENT DOMAIN the right of the State to acquire
private property for public use upon payment of just
compensation
EXPROPRIATION the procedure to be followed in
the exercise of the right of eminent domain
Section 1. The complaint
CONTENTS OF VERIFIED COMPLAINT
1. right and purpose of expropriation
2. description of the real and personal property
sought to be expropriated
3. all persons owning or claiming to own or
occupying any part or interest
4. if the property to be expropriated is in the
name of the Republic of the Philippines, an
averment to that effect shall be made
GENERAL RULE: All properties can be expropriated
EXCEPTIONS:
1. Money
2. Choses in action
Section 2. Entry of plaintiff upon depositing value
with authorized government depositary
PURPOSE OF DEPOSIT:
1. provide damages if the court finds that
plaintiff has no right to expropriate
2. advance payment for just compensation
Section 3. Defenses and objections
If the defendant has no objection:
1. file and serve a notice of appearance and
manifestation to that effect
2. thereafter, he shall be entitled to notice of all
proceedings
If defendant has an objection: he must file his
answer within the time provided for in the summons
No counterclaim, cross-claim or third party complaint
shall be alleged or allowed in the answer or
subsequent pleading
Section 5. Ascertainment of compensation
commissioners
Section 6. Proceedings by commissioners
Section 7. Report by commissioners and
judgment thereupon
Section 8. Action upon commissioners report
2 STAGES OF EXPROPRIATION:
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a. Determination of plaintiffs authority to
exercise the power of eminent domain
and the propriety of its exercise
- A final order sustaining the right to
expropriate is appealable, but the appeal
does not prevent the court from determining
the just compensation to be paid
b. Determination of the just compensation
for the property sought to be taken.
Formula for the determination of just
compensation:
J C=FMV+CD-CB
If CB is less than CD, then J C=FMV
Where:
J C=J ust compensation
FMV=Fair market value
CD=consequential damages
CB=consequential benefits
When plaintiff can take possession of property
pending litigation
Plaintiff can enter or take possession of the real
property upon DEPOSIT with the authorized
government depositary an amount equal to
ASSESSED VALUE of property.
If personal property, its value will be
PROVISIONALLY ASCERTAINED and amount to be
deposited fixed by the court.
Defendant, if he objects, must file his ANSWER
within time stated in the summons. No counterclaim,
cross-claim or third party complaint is allowed.
Section 10. Rights of plaintiff after judgment and
payment
When title is vested in expropriation:
1. If personal property, upon payment of just
compensation
2. If real property, upon payment of just
compensation and registration
Section 11. Entry not delayed by appeal; effect of
reversal
Section 12. Costs, by whom paid
Section 13. Recording judgment and its effect
Section 14. Power of guardian in such
proceedings
Benguet Consolidated Inc. v. Republic 143 SCRA
466 (1986)
For the determination of just compensation, three
(3) commissioners are appointed. They shall assess
the consequential damages to the property not taken
and deduct the consequential benefits to be derived
from the public use of the property taken. Legal
interest is demandable from the time the government
took the petitioners mining claims until payment is
made by the government.



RULE 68
FORECLOSURE OF REAL ESTATE MORTGAGE

JUDICIAL
FORECLOSURE
EXTRAJUDICIAL
FORECLOSURE
- requires court
intervention
- does not require court
intervention
- There is only an equity
of redemption
- Right of redemption
exists
- Governed by Rule 68 - Governed by Act 3135
Section 1. Complaint in action for foreclosure
Foreclosure is initiated by a COMPLAINT.
CONTENTS OF THE COMPLAINT
1. the date and due execution of the mortgage
2. its assignments, if any
3. names and residences of the mortgagor and
the mortgagee
4. description of the mortgage property
5. statement of the date of the note or other
documentary evidence of the obligation
secured by the mortgage
6. amount claimed to be unpaid thereon
7. names and residences of all persons having
or claiming interest in the property
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subordinate to the holder of the mortgage all
of whom shall be made defendants in the
action
Section 2. Judgment on foreclosure
If upon trial, the court finds the facts set forth in
the complaint to be true, it shall:
1. Ascertain the amount due to the plaintiff upon
the mortgage debt or obligation, including
interest and other charges as approved by
the court, and costs AND
2. Render judgment for the sum so found due
and order that the same be paid to the court
or to judgment obligee
i. within a period of not less than 90
days nor more than 120 days from
entry of judgment
ii. in default of such payment: such
property shall be sold at public
auction to satisfy the judgment.
If defendant fails to pay the amount of the
judgment within the period specified
1. Court, upon motion, shall order the property
to be sold in the manner and under the
provisions of Rule 39 and other regulations
governing sales of real estate under
execution.
2. Sale shall not affect the rights of persons
holding prior encumbrances upon the
property or a part there
3. When confirmed by an order of the court,
upon motion, sale shall operate to:
i. divest the rights in the property of all
the parties to the action and to
ii. vest their rights in the purchaser,
subject to such rights of redemption
as may be allowed by law.
Section 3. sale or mortgage of property; effect
RULE 39 RULE 38
No need to confirm sale Need to confirm sale
Section 4. Disposition of proceeds of sale
a. amount realized from foreclosure sale less
the costs of sale is paid to the person
foreclosing
b. when there is balance or residue, after
paying the mortgage debt, the same shall be
paid to junior encumbrancers in the order of
priority as ascertained by the court
c. if no junior encumbrancers, the residue goes
to mortgagor/duly authorized agent or person
entitled to it
Section 5. How sale to proceed in case the debt is
not all due
If debt not all due, as soon as sufficient portion of
property has been sold to pay amount due and costs,
the sale shall terminate.
Otherwise, court may, on motion, order more to be
sold as often as more becomes due.
BUT if property cannot be sold in portions, one single
sale and the entire debt and costs shall be paid, and
where rebate is proper, rebate must be made.
Section 5. How sale to proceed in case the debt is
not all due

If debt not all due, as soon as sufficient portion of
property has been sold to pay amount due and costs,
the sale shall terminate.
Otherwise, court may, on motion, order more to be
sold as often as more becomes due.
BUT if property cannot be sold in portions, one single
sale and the entire debt and costs shall be paid, and
where rebate is proper, rebate must be made.
Section 6. Deficiency judgment
Court, upon motion, shall render judgment against
the defendant for any balance for which, by the
record of the case, he may be personally liable to the
plaintiff.
If balance is all due at the time of the rendition of the
judgment: execution may issue immediately.
Otherwise: plaintiff shall be entitled to execution at
such time as the balance remaining becomes due
under the terms of the original contract, which time
shall be stated in the judgment.

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JUDGMENT OF
FORECLOSURE
DEFICIENCY
JUDGMENT
Action quasi in rem Action in personam
Section 7. Registration
Registration
a) If no right of redemption, certificate of title of
mortgagor is cancelled, new one issued to
purchaser
b) If with right of redemption, certificate of title of
mortgagor is not cancelled, but certificate of
sale and order confirming the sale is
registered with brief memorandum made by
RD upon the certificate of title.
c) If property redeemed, deed of redemption is
registered with RD and brief memorandum
on certificate of title is made.
d) If not redeemed, final deed of sale registered
with RD, certificate of title of mortgagor is
cancelled and new one issued to purchaser

EQUITY OF
REDEMPTION
RIGHT OF
REDEMPTION
Right of the defendant
mortgagor to extinguish
the mortgage and retain
ownership of the property
by paying the debt within
90-120 days after the
entry of judgment or even
after the foreclosure sale
but prior to confirmation
Right of the debtor, his
successor in interest or
any judicial creditor or
judgment creditor of said
debtor or any person
having a lien on the
property subsequent to
the mortgage or deed of
trust under which the
property is sold to
redeem the property
within 1 year from the
registration of the
Sheriffs certificate of
foreclosure title
Governed by Rule 68 Governed by Rule 39,
Sections 29-31
Period is 90-120 days
after entry of or even
after the foreclosure sale
but prior to confirmation
Period is within 1 year
from the registration of
the Sheriffs certificate of
foreclosure title

GSIS V. CFI of Iloilo 185 SCRA 19 (1990)
There is no right of redemption in judicial
foreclosure sale after the confirmation of sale except
if the mortgagee is a bank.




Right of Redemption
GENERAL RULE
In judicial foreclosure, there is NO RIGHT OF
REDEMPTION.

EXCEPTION
In case of judicial (as well as extrajudicial)
foreclosure of any mortgage on real estate in favor of
a BANK, QUASI BANK or TRUST ENTITY,
mortgagor is granted right of redemption to be
exercised WITHIN ONE YEAR after sale of real
estate.

Provisional Remedies Available to Mortgagee in
Case of Foreclosure
1. Preliminary attachment of properties of the
debtor not covered by the mortgage;
2. receivership of mortgaged property
Section 8. Applicability of other provisions


RULE 69
PARTITION

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

KINDS OF PARTITION
1. J udicial-procedure governed by Rule 69
2. Extrajudicial-no court intervention is required

Section 1. Complaint in action for partition of real
estate

Initiated Through a Complaint
a) by a person having the RIGHT to COMPEL
PARTITION;
b) setting forth the NATURE and EXTENT of his
TITLE;
c) and an adequate description of the real
estate;
d) joining as defendants all other persons
interested in the property.

PARTIES
a) All co-owners are indispensable parties
b) Creditors or assignees of co-owners may
intervene and object to a partition effected
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without their concurrence. But they cannot
impugn a partition already executed, unless:
1. there has been fraud, or
2. in case it was made notwithstanding a
formal opposition presented to prevent it.

Two Stages of Partition
a) Determination of whether or not a CO-
OWNERSHIP EXISTS, and partition is
proper
Ends in either a) declaration that plaintiff
is not entitled to partition because no co-
ownership exists or partition is legally
prohibited; or b) a judgment that co-
ownership exists and partition is proper
b) Second stage commences when the parties
are unable to agree upon the partition directed
by the court. In that case, 3 commissioners
are called.

May also deal with the rendition of the accounting
and its approval by the court

When Partition Made
GENERAL RULE
It can be made anytime and the right to demand
partition is imprescriptible.

EXCEPTION
If a co-owner asserts adverse title to the property in
which case the period of prescription runs from such
time of assertion of adverse title.

Section 2. Order of partition, and partition by
agreement thereunder

CONTENTS OF
JUDGMENT
EFFECT OF
JUDGMENT
If actual
partition of
property is
made
The judgment
shall state
definitely, by
metes and
bounds and
adequate
description, the
particular portion
of the estate
assigned to each
party
To vest in
each party to
the action, in
severalty the
portion of the
estate
assigned to
him
If the whole
property is
assigned to
one of the
parties upon
paying to the
others the sum
The judgment
shall state the fact
of such payment
and the
assignment of the
real estate to the
party making the
To vest in the
party making
the payment
the whole or
part of the real
estate free
from any
or sums
ordered by the
court
payment interest on the
part of the
other parties to
the action
If the property
is sold and the
sale is
confirmed by
the court
The judgment
shall state the
name of the
purchaser/s and a
definite
description of the
parcels of real
estate sold to
each purchaser
To vest the
real estate in
the
purchaser/s
making the
payment/s,
free from the
claims of any
of the parties
to the action
Section 3. Commissioners to make partition when
all parties fail to agree
Section 4. Oath and duties of commissioners
Section 5. Assignment or sale of real estate by
commissioners

If real estate cannot be divided without prejudice to
parties interest, court may:
1. ASSIGN it to ONE of the parties PROVIDED
he pays to the other parties an amount
deemed equitable by the commissioners; or
2. SELL it if ONE of the parties asks that the
property be sold instead of being so
assigned.

Section 6. Report of commissioners, proceedings
not binding until confirmed

Section 7. Action of the court upon
commissioners report

Section 8. Accounting for rents and profits in
action for partition

Section 9. Power of guardian in such proceedings

Section 10. Costs and expenses to be taxed and
collected

Section 11. The judgment and its effects; copy to
be recorded in the registry of deeds

Section 12. neither paramount rights nor
amicable partition affected by this Rule

Section 13. Partition of personal property

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RULE 70
FORCIBLE ENTRY AND UNLAWFUL DETAINER

FORCIBLE ENTRY UNLAWFUL DETAINER
Possession of land is
unlawful from the
beginning due to force,
intimidation, threat,
strategy or stealth
Possession of defendant
is inceptively lawful but
becomes illegal by
reason of termination of
right of possession
No requirement of
previous demand for
defendant to vacate
premises
Demand is jurisdictional
Plaintiff must prove that
he was in prior physical
possession until he was
deprived thereof by
defendant
Plaintiff need not have
been in prior physical
possession
1-year period counted
from date of actual entry
or when plaintiff learned
thereof.
1-year period from date
of last demand

Section 1. Who may institute proceedings and
when

THREE KINDS OF ACTION FOR RECOVERY OF
POSSESSION
ACCION
INTERDICTAL
ACCION
PUBLICIANA
ACCION
REIVINDICATORIA
Summary
action for the
recovery of
physical
possession
where the
dispossession
has not lasted
for more than
1 year
A plenary
action for the
recovery of
the real right
of possession
when the
dispossession
has lasted for
more than 1
year
An action for the
recovery of
ownership, which
necessarily
includes the
recovery of
possession
MTC only RTC if value
of property
exceeds
P20,000.00,
or P50,000.00
in Metro
Manila

RTC if value of
property exceeds
P20,000.00, or
P50,000.00 in
Metro Manila

Date from Which One Year Period Counted
Forcible entry: from the date of entry or taking of
possession by force, intimidation, threat, strategy or
stealth

Unlawful detainer:
1. from the date of the last demand to vacate in
case of non-payment of rent or non-
compliance with the conditions of the lease;
2. from the date of the notice to quit, in case of
a tacit renewal of the lease;
3. from the date of the revocation of the permit
in case of occupancy on mere tolerance or
under a temporary permit.

Section 2. Lessor to proceed against lessee only
after demand

Demand may either be:
1. to pay and vacate; or
2. to comply with the conditions of the lease
and vacate.

When Prior Demand in Unlawful Detainer Not
Required
1. When purpose of action is to terminate lease
because of expiry of term and not because of
failure to pay rental or to comply with terms
of lease contract;
2. Purpose of suit is not for ejectment but for
enforcement of terms of contract;
3. When defendant is not a tenant but a pure
intruder.

Demand
In all other cases, there must be a demand:
a) To pay or to comply with the conditions of the
lease; AND
b) To vacate by written notice on the person in
the premises or by posting such notice on the
premises if no person is found thereon and
this is a condition precedent to the filing of
the case; ORAL demand is not permitted.
c) If demand is in the alternative (pay OR
vacate), this is NOT the demand
contemplated by the Rules.

How Demand is Made
1. Personally
2. Posting it at the premises if no person is
found thereon
3. Substituted service
4. Registered mail
5.
Section 3. Summary procedure

Section 4. Pleadings allowed
1. Complaint
2. Compulsory counterclaim
3. Cross-claim
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4. Answers thereto

Section 5. Action on complaint

Court may dismiss the case outright if any ground for
dismissal of a civil action is apparent or issue
summons if no ground is apparent.

Section 6. Answer

When Filed
Must be file within 10 days from service of summons.

Answer to counterclaims and cross-claims shall be
served and filed within 10 days from service of the
answer in which they are pleaded

Section 7. Effect of failure to answer


Effect of Failure to Answer
The court will, motu proprio or on motion, render
judgment as may be warranted by the facts alleged in
the complaint and limited to what is prayed therein.

Section 8. Preliminary conference; appearance of
the parties

Preliminary conference held not later than 30 days
after the last answer is filed.

If plaintiff fails to appear, the complaint shall be
dismissed and the counterclaims and cross-claims
dismissed.

If defendant fails to appear, the plaintiff shall be
entitled to judgment.

Section 9. Record of preliminary conference

Section 10. Submission of affidavits and position
papers

Section 11. Period for rendition of judgment

Section 12. Referral for conciliation

Section 13. Prohibited motions and pleadings

Prohibited Motions and Pleadings
1. Motion to dismiss the complaint except on
the ground of lack of jurisdiction over the
subject matter, or failure to comply with
section 12;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of
a judgment, or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings,
affidavits or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints;
12. Interventions

Section 14. Affidavits

Section 15. Preliminary injunction

Plaintiff may ask for preliminary injunction within 5
days from filing of the complaint

Section 16. Resolving defense of ownership

Involves provisional determination of ownership only.

Section 17. Judgment

Azcuna Jr. v. CA (G.R. No. 116665 March 20,
1996)
The court can award damages provided said
damage refers only to: (1) the fair rental value of the
property; (2) rent in arrears; and (3) liquidated
damages since they are part of the contract.

De Laureano v. Adil 72 SCRA 148 (1976)
Attorneys fees cannot be considered damages.

Section 18. Judgment conclusive only on
possession; not conclusive in actions involving
title or ownership

Section 19. Immediate execution of judgment,
how to stay the same

GENERAL RULE
J udgment against the defendant is immediately
executory.

EXCEPTION
When the following concur:
1. the defendant files an appeal;
2. defendant files a sufficient supersedeas bond
to pay the rents, damages and costs
accruing down to the time of judgment
appealed from; and
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3. defendant deposits with the court the amount
of rent due from time to time under the
contract, or in the absence of a contract, the
reasonable value of the use and occupation
of the premises on or before the 10th day of
each succeeding month or period.

SUPERSEDEAS BOND
To stay execution of judgment against defendant, he
must perfect an appeal and file a supersedeas bond
to pay the rents, damages and costs accruing down
to the time appealed from and DEPOSIT with
appellate court the AMOUNT OF RENT due from
time to time if with contract. If without contract,
deposit with RTC the REASONABLE VALUE for the
use and occupation of the premises.

If defendant fails to make these payments from time
to time during pendency of the appeal, appellate
court, upon plaintiffs motion, shall order the
execution of judgment appealed from with respect to
the restoration of possession.

Ejectment Suit Not Suspended or Barred by the
Following Actions:
1. Injunction
2. Consignation of rentals
3. Accion publiciana
4. Writ of possession case
5. Quieting of title
6. Specific performance with damages
7. Reformation of instrument
8. Reconveyance of property or accion
reivindicatoria
9. annulment of sale, of title, or document
(enumeration from Feria, p. 615)

Section 20. Preliminary mandatory injunction in
case of appeal

Section 21. Immediate execution on appeal to
Court of Appeals or Supreme Court



RULE 71
CONTEMPT

CONTEMPT
A defiance of the authority, justice or dignity of the
court; such conduct as tends to bring the authority
and administration of the law into disrespect or to
interfere with or prejudice parties litigant or their
witnesses during litigation.

DIRECT CONTEMPT INDIRECT CONTEMPT
Committed in the
presence of or so near a
court or judge
Not committed in the
presence of the court

Punished summarily
without hearing
No appeal may be taken
but the party adjudged in
contempt may avail
himself of actions of
certiorari or prohibition
which shall stay the
execution of the
judgment, provided a
bond fixed by the court is
filed
Punished only after
hearing complaint in
writing or motion or party
or order of court requiring
person to appear and
explain, opportunity to
appear and show cause.

Remedy is certiorari or
prohibition
Remedy is appeal
Certiorari/prohibition
suspends execution
provided there is a bond
Immediately executory
unless a bond is filed

CRIMINAL CONTEMPT CIVIL CONTEMPT
Purpose is to vindicate
public security
Purpose is to protect and
enforce the civil rights
and remedies of the
litigants
Conduct is directed
against the dignity or
authority of the court
Failure to do something
ordered by the court for
the benefit of a party
If accused is acquitted,
there can be no appeal
If judgment is for
respondent, there can be
an appeal

Section 1. Direct contempt punished summarily

GROUNDS FOR DIRECT CONTEMPT
1. Misbehavior in the presence of or so near the
court
2. Disrespect towards the court
3. Offensive personalities towards others
4. Refusal to be sworn or to answer as witness
or to subscribe an affidavit or deposition

Section 2. Remedy therefrom

Section 3. Indirect contempt to be punished after
charge and hearing

GROUNDS FOR INDIRECT CONTEMPT
1. Misbehavior of an officer of a court in the
performance of his official duties or in his
official transactions;
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2. Disobedience of or resistance to a lawful writ,
process, order, or judgment of a court
3. Any abuse of or any unlawful interference
with the processes or proceedings of a court
not constituting direct contempt
4. Any improper conduct tending, directly or
indirectly, to impede, obstruct, or degrade the
administration of justice;
5. Assuming to be an attorney or an officer of a
court, and acting as such without authority;
6. Failure to obey a subpoena duly served;
7. 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.

Section 4. How proceedings commenced

How Proceedings Commenced
1. An order or formal charge by the court
requiring the respondent to show cause why
he should not be punished for contempt; or
2. A verified petition charging indirect contempt
with supporting particulars and certified true
copies of the necessary documents and
papers.

Section 5. Where charge to be filed

Section 6. Hearing, release on bail

Section 7. Punishment for indirect contempt

Section 8. Imprisonment until order obeyed

Section 9. proceedings when party released on
bail fails to answer

Section 10. Court may release respondent

Section 11. review of final judgment or final
order; bond for stay

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

Section 12. Contempt against quasi-judicial
entities

Rule 71 applies suppletorily to contempt committed
against persons, entities, bodies or agencies
exercising quasi-judicial functions. The RTC of the
place where the contempt was committed shall have
jurisdiction over such charges.