12.13.

2013 [232:10 min]

Jan. 14

7:46.3 8:31.4

Does Everybody Know Why Is It Called Special Civil Action? We Are Talking Of Rules 62 To Well This Actions Are Called Special Civil Actions Because They Are Subject To Certain Prescribed Specific Rules. While They Are Also Govern By Ordinary Rules. These Actions Are Called By As I Said Rules 62 To 71. As You Will Recall, A Civil Action Is Defined In Section 3 of Rule 1, is one by which a party seize on another for enforcement or protection of a right for the prevention or interest of a wronged. Then it says, a civil action may either be ordinary or special, remember that. While both are governed by the rules for ordinary civil actions. A special civil action is subject specific rules prescribed for specific civil actions. Of course, note that the civil action in general is one by which a party sues another for enforcement of a right or the prevention or repress of a wronged. Special Civil action on the other hand, is there in brought or filed for the same purpose. So an ordinary civil action must be based on cause of action. This means that the defendant must have performed an act or omitted to do an act in violation of the rights of another. However, these concepts you should know, do not fit the requirements of a cause of actions in certain special civil actions. The diminish of cause of action requiring a violation of a right does not appear relevant in the special civil action of [inaudible, 10:35.8] relief. Which is brought before there is a breach of contract, deed, will, statute, executive order or regulation or ordinance. Before a violation is brought. And that is the time when you can file a special civil action of declaratory relief. In other words, the cause of action is defined a required for an ordinary civil action finds no application for an ordinary civil action defines no application in an action for declaratory relief. Also, in inter [inaudible, 11:10.4] the plaintiff may file a complaint even if he has sustained no actual violation of his rights. For that matter the plaintiff in interfere that has no interest in subject matter of the action. This is not so in ordinary civil action. So rendering [inaudible, 11:33.2] differences, between ordinary civil actions and special civil actions. Now you will also recall of that venue of ordinary civil actions determined by the residences of the party. Where the action is personal or the location of the property where the action is real. This dichotomy or differentiation is not only applicable in special civil actions. For example, the venue in petitions for co-warrantor is where the supreme court or the court of appeals sits. If the petition is commenced by any of this course, and without taking any into considerations to residences with the parties. The venue in petitions for cowarrantor is where the supreme court or court of appeals sits. Here the petition is

Page 1 of 37

12.13.2013 [232:10 min]

Jan. 14

commenced in any of this course. In other words, supreme court or court of appeals and without taking into considerations the residences of the parties. It is only when the petition is filed in the regional trial court or RTC that residences of the parties considered in determining the venue. But then petitions for co-warrantor filed in the RTC only look to the residences of the respondents not of the petitioner. 13:20.7 Then again, when it is a general solicitor who files the action for co- warrantor, the rule is that, the petition may only be filed in a regional trial court in the city of Manila. Let me repeat that. If its only when the petition is filed in the RTC not the Supreme Court or Court of Appeals, that residence of the parties considered in determining the venue. But then petitions for co-warrantor filed in the RTC only look to the residence of the respondent, not that of the petitioner. And then where it is the solicitor general, who files the action for co-warrantor, the rule is that the petition may only be filed in a Regional Trial Court or RTC in the City of Manila. Those are very important distinctions. Ordinary Civil Actions maybe filed initially in either the inferior court or the RTC. Depending on what, depending on the jurisdictional amount or the nature of the action involved. However, there are special civil action which can only be filed in the inferior court. Like actions for bond, forcible entry, and or unlawful detenant, ejectment. On the other hand there are also special civil actions that cannot be commenced in the inferior court. Like what? Like petitions for Sensorary revision and mandamus. So to recap, the general rule is that the provisions of the rules on ordinary civil actions shall be applicable to special civil actions only in so far as they are not consistent with or may serve to supplement of the rules of special civil actions. What are the special civil actions provided under the rules I said, the special civil actions are provided for under Rule 62 to 71. 71, nga ba? Let me be sure. The special civil action under the rules are interfere there, under Rule 62. Declaratory Relief and similar remedies under Rule 63. Review judgment and final orders or institutions of the comelec and the COA under Rule 64. Sensorary Revision and Mandamus under Rule 65. Co-warrantor under Rule 66, Appropriation under Rule 67, Proportion of Real Estate Mortgage under Rule 68, Partition under Rule 69, Forcibel Entry and Unlawful Detainment under Rule 70 and Contempt under Rule 71. Madali lang ma-memorya yan. 62 [inaudible, 16:44.7], 63 Declaratory Relief and Similar Remedies. 64, Review Judgment and Final Orders of the Comelec and OWWA. 65, CEsssionary, Prohibition and Mandamus. 66, Co-warrantor, 67, Ex-appropriation, 68, Foreclosure of Real Estate Mortgage, 69 Partition, 70 Forcible Entry and Unlawful detainment, and 71 Contempt. 17:21.0] Rule 64 is a new special civil action and applies the judgments and final orders or institutions of two constitutional commissions. Comelec and COA.

Page 2 of 37

12.13.2013 [232:10 min]

Jan. 14

The Civil Service Commission is another constitutional provision, but its jusdgement and final orders or resolutions are not omitted in Rules 64. How do you start, or how do you commence a special civil action? There are two separate ways in finding special civil action; one is by complaint, when you do this, when you file for intervener, for appropriation, for closure of real estate, mortage for partition, and forcible entry and unlawful detenant. And then second is by petition, and this would refer to actions for declaratory relief and similar remedies, review judgments and final order of the comelec and COA, Sensorary revision or mandamus, co-warrantor and contempt. While the title or the name of the readings does not go in to the substance of the action, it is advisable to remember those commence with the complaint and those by petition. In which court, a special civil action is filed? Well it depends on the special civil action that you will file or initiate. As I mentioned earlier except as otherwise indicated in the particular rule on special civil action. Actions for Sensorary revision mandamus must be commenced in the proper regional trial court but in proper cases in the supreme court or the court of appeals. Special rule is provided for in co-warrantor proceedings which maybe brought only in the supreme court or the court of appeals or in the RTC exercising jurisdiction over the territorial area where the respondent or any of the respondents resides. Where it is again for a emphasis, it is the solicitor general who files the action. It maybe brought only in the RTC of Manila or Court of Appeals or the Supreme Court. Now, special civil actions that would be filed in the so called inferior court. By the way they are now called, a new name, First Level Courts. As I said, there are Civil Actions, Special civil actions that would file in the first level courts of inferior courts and these are interferer on what instances? When the amount involve is within the jurisdiction of the inferior court. And then content. Note that ejectment of actions, for forcible entry and unlawful detainment the complaint should be filed with the inferior court. Which an exclusive jurisdiction over the action, it is applied regardless of the amount involved. So the unpaid rental may amount to one million peso or ten million pesos. But jurisdiction over the action ejectment which of course includes recovery of the [inaudible, 21:06] will still be the first level courts or the inferior court. Most of the dismissing special civil action, refer to Sectin 3 Rule 1, the provisions of Rule 60, on most dismiss are generally applicable in special civil actions. In intervener, is another ground. Which is that the filing of the complaint in the intervener was improper. As well with the allegations of the complaint will not show conflicting claims between and among the parties of the interfere. Page 3 of 37

12.13.2013 [232:10 min]

Jan. 14

21:48.9

What are the special reasons, how may the supreme court entertain or assume jurisdiction over Sensorary prohibition mandamus and also co-warrantor proceedings? Well, you know, in the absence of special reasons, the law standing rule is that the supreme court will decline original jurisdiction over Sensorary prohibition and mandamus cases. Specially when it is necessary to take evidence and make findings on controverted facts. Why? Because the supreme court is not a trial of facts and that function is better left with the trial courts. Now the same rule applies to actions for co-warrantor with the supreme court as [inaudible,22:33.5] jurisdiction with the Regional Trial Court. Absent sufficient reasons, the action will left for determination by the regional trial court with the supreme court review for the petition. Now why is that? Again, because the Regional Trail Court, being a trial court is better equipped to take testimony and resolve proper questions involve in the case. Again it emphasizes the fact that the Supreme Court is not a trial of fact. Course of action is not required in intervener. Intervener is just like any other civil action. It has plaintiff and defendants. But the feature of an intervener distinguishes from ordinary civil action is that in ordinary civil action it is always responding to the cause of action. That is plaintiff was alleged in the complaint that he has a right and that right is violated by the defendant. Without these allegations the complaint in ordinance civil action will have to be dismissed for failure distinct cause of action under Section1.G of Rule 60. This rule is not followed in intervener. Intervener is one civil action where the plaintiff is given the privilege not to allege the cause of action because of the plaintiff does not have a right that has been violated by the defendants. Or if he has a right that right is not disputed by the defendant. So there is no need for that plaintiff to assert a cause of action pertaining to any violation of his right. You will know, you should know that intervener needs at least two defendants. At least dalawang defendants. And this is another feature of intervener that distinguishes it from ordinary civil action. There should be at least two defendants in order to civil action there must, may just be one defendant one plaintiff, one defendant, why is it so? It is because intervener presupposes such number of defendants as the prefix inter, dib a inter-freeder. Inter means between. So between means more than one. Because it cannot be between me and myself. Di ba? So, intervener is between, more than one defendant so that the reason of where there one defendant there can be no officio for interfeeding claim. The textbook example, in intervener is a the case of a warehouse man. There are occasion where a warehouse man is wastely two or more party suddenly appearing and telling him that the goods in his cutody belong to them.

Page 4 of 37

12.13.2013 [232:10 min]

Jan. 14

Claimant A says the rule are these. Claimant B this is the claim insisting in term that the goods belong to him. As to who issue the warehouse receipt as the one issue the warehouse receipt, you are familiar with warehouse receipt right? Now the one who issued the warehouse receipt is called the warehouse man. But a case may occasional rise that the one who issued the warehouse receipt is not the warehouse man. In question, let me rephrase that. You know that the one who issues the warehouse receipt is called the warehouse man. Now, may not be warehouse man, simply decide as to who is entitled with the goods covered by the receipt. After all he was the one who issued the receipt. So halimbawa, claimant one, claimant A comes to says, Sa akin mo binigay yung warehouse receipt, eh namisplace ko lang. claimant B comes to says, hindi ako sa akin mo bingay yan eh. Ito resibo ko di ba? May conflicting claims. Can he just decide, the warehouse man, can he just decide, sayo na B hawak mo naman receipt. Of course he can do that. He can do that. Does he assume any risk in doing that? Of course he does. Because he could be mistaken. Therefore in order to protect himself from the consequences of an erroneous decision, the law or the rules giving the prerogative remedy of intervener. He can go to court and let the court decide the conflicting claims. Whatever the decision the court may have it, may render, it insulates the warehouse man from liability. So the whole point of intervener is to free the warehouse man or the plaintiff in intervener from any liability over conflicting claims. It is essential if the warehouse man decides to file an intervener to impede as the defendants all the claimants of the property. Dapat lahat ide-demanda niya. In intervener, you cannot file complaint for intervener against only one claimant. Because then there is nothing to interfere iisa lang eh. And the case would not resolve the conflicting claims. This is the reason why the intervener why there may only be one plaintiff, there should be at least two defendants. Let us compare the situation of intervener in ordinary civil action. Where there are two or more defendants so we can better appreciate the distinction between intervener and an ordinary civil action. In an ordinary civil action, where there are two or more defendants who pleaded in the complaint, the rule that applies is the Rule 9 on default. On our example, suppose defendant 1 files his answer but defendant 2 does not. The court will declare this nonanswering defendant in default. The question is, after declaring defendant 2, in default can the court can already render a judgment of default as the case seem. The answer is no. The court cannot just render judgment against the defaulted defendant. The court cannot render judgment because defendant 2, despite his declaring a default, the court will have to continue to try the case according to the answer filed by defendant number 1. Di ba? If the court after trial finds merit in the defenses set by the defendant number 1, then the court may render judgment in his favor. Which judgment necessarily will resolve or Page 5 of 37

12.13.2013 [232:10 min]

Jan. 14

3:21.4

will benefit defendant number two, even when defendant number 2 had been already default by failure to file answer to the complaint. He did not even attend the trial court, during the trial. But failure over rule of judgment, would be answering defendant number 1, will benefit defendant number 2 who was declaring before. Now these are the procedure principles that govern ordinary civil actions. We apply these principles for ordinary civil actions because there is a common cause of action against the two or more defendants included in this case di ba? There is a commonality of cause of action between the two or more defendants in the case, now let us go to special civil actions of intervener. Where there are two or more defendants, so you have warehouse man versus claimants number 1 and claimant number 2. If claimant files an answer and claimant number 2 does not file an answer. Claimant number 2 will also be declared default di ba? Di siya nag-file ng answer will be declared in default. Now because claimant number 1 files his answer he will not be declared in default, of course thats correct. Now the questionis, may the court render judgment in the case even if claimant 2 did not file his answer? The answer is yes. That is different from the first one. In ordinary civil action. Where the defendant number 2 did not file an answer was declared default, the court cannot just render judgment in default as to him. But its not so in the intervener. If defendant number 2 does not file an answer, then the court can render judgment as against him. You see, in intervener, where claimant number 2 failed to file his answer he automatically looses the case. Why is this so? It is because, in the intervener, if one defendant is declared default, in addition to his declaration, he is barred from pursuing his claim over the property involved. This means that the defaulted defendant loses the case and the answering defendant will be awarded possession ownership over the property subject of the intervener action. So these are the evident distinctions between an ordinary civil action and special civil action of intervener. Now another textbook example of an intervener action is convicting claims against a lessee. This happens where a lessee finds user not knowing the person to whom he should pay the rentals on the leased premises on amount of conflicting claims thereof. A classic case is Ocampo versus Tirona. This is a 2005 case. With AR No. 147819 April 6, 2005. Now what happened in that case is that when Ocampo bought a piece of land, and Tirona wasnt profiling a portion of that land. So when, even before the title could be transferred to him, Ocampo wrote Tirona to ready paying the rentals fee. Well, to a lawyer, Tirona says , okay we will paying the rentals to you. Only after paying some rentals Tirona later claim that Ocampo actually did not own the property. It belonged to somebody else whose Title overlapsed with that of Ocampos property. And because of that, Ocampo filed the ejectment case against him. Of course Tirona lost.

33:26.5

Page 6 of 37

12.13.2013 [232:10 min]

Jan. 14

Tirona claimed that another person owned that property. And he says, because I am a lessee and in he selling the property, I have priority, di ba? I have this right for buying. I am exercising the [inaudible,35:00.0] right. So, again Tirona lost through that position. And he went to the supreme court, the supreme court says, Ocampo should win because ownership is never an issue in ejectment cases. Di ba? Possession is the issue there. What the supreme court said by way of [inaudible, 35:36.2] What Tirona should have done when he claimed that somebody else owned the property was to fiile an interfeeder. Against Ocampo and that person who claim to be the owner of the property. But that he did not do. Therefore, he lost. What Tirona actually did was to write to have that owner who claims to right to occupy the property interfeeding the action. And of course it did not prosper. While the supreme says, what he should have done was before, Ocampo filed the ejectment case, he should have filed for the interfeeder. So, because this is a classic case for two claimants for the rentals to the parties claiming to be the lessor. And therefore the lessee, as the standing have the right to file interfeeder against them. But again ayaw ng magbayad ni Tirona kasi. Well at least, by filing that case, by resisting the demand of Ocampo, he stayed on for sometime ano? I think 1995 yata yung case eh, nadesisyunan, 2005, ten years ito. Now if you are into that kind of law practice, you will become a lawyer, just take note of those remedies. May pagkanotirious yun no. Now, there is another feature of interfeeder, which justifies his classification as a special civil action. You recall Rule 16 on motion to dismiss di ba? Rule applies to all civil actions as long as any of the grounds enumerated in that rule is evident and upon any of ways that the defendant could file a motion to dismiss. Di ba? Now, in interfeeder, the defendant in addition to those grounds enumerated in Rule 16, may file a motion to dismiss for the impropriety of the filing the complaint for interfeeder. In our example of the warehouse man, who face the conflicting claims over the same goods in his possession, may file interfeeder, only if no compliant has been filed against him by any of the claimants. So if, before the warehouse man can file an interfeeder, claimant number 1 or redefined a complaint for replevin against him. That is for the recovery of the rule. What must the warehouse man do? Obviously they cannot find intrfeeder anymore. Di ba? So in a situation lie that, what should the warehouse man do? Well do you know replevin is not a special civil action. And there is nothing that revenge claimant number 1, from filing an ordinary action for replevin. Coupled with an application for provincial remedy of a writ of replevin against the warehouse man,so makukuha naniya yung property no. in the possession of the warehouse man, so what must the warehouse man do? After taking concern with the summons of the coupled complaint can the warehouse man file a separate complaint for interfreeder against the claimants of the goods in his possession? The answer as I already repeated, is NO. cannot. That will be, why? Because that will be misleading cause of action. Bawal sa rules yun. It cannot speed the cause of action.

Page 7 of 37

12.13.2013 [232:10 min]

Jan. 14

So what the warehouse man must do? Is file his answer and set up interfreeder as a counter claim. Okay? The warehouse man can file his answer and place as a counter claim interfeeder. The Supreme Court has emphasized that interfeeder is available as an independent and separate action after one of the claimants of the property has filed the complaint over the possession and the custody over the warehouse man. In such a situation the Supreme Court said, interfeeder could be set up as a counter claim. Puwede pang compulsory conuter cliam. Parehas hindi siya magbabayad ng filing fee. Although now. Again, ang paborito kasing subject yung Rules of court yung docket fees. Kasi it is unconstitutional. Its is rendered unconstitutional by the enormic group. Exhorbit ang rates no? the supreme court has approve to charge your client in filing complaint no. that is in effect denying access to the court, which is a Constitutional Right of every citizen of the this poor stricken Republic. 42:37.0 As I said the warehouse man, was filed his answer and set his counter claim interfeeder. The question is, how can it be interfeeder falls as counter claim when necessarily, not all the claimants heavily bided as parties in the case by the plaintiff claimant. Di ba? And dinemanda ng plaintiff claimant eh yung warehouse man now. Only the warehouse man. Now if the warehouse man to set up as counter claim interefeeder, how can he do that when the other claimants are not in pleaded in that case? So walang jurisdiction ang court sa kanila. The other claimant have strangest to the suit filed by the plaintiff claimant and as I said the court must not approve jurisdiction over those other claimants. Now, can the warehouse man by reinforcing interfeeder, in plea the other claimants? The answer is YES. There is nothing in the rule that prohibits the filing of a counter claim against the plaintiff and the other claimant as well as strangers of this rule. All that is required is that the claimant strangers should be susceptible to the jurisdiction of the court by the service upon them of the summons. So you have been to this, may subject kayo noong, pleadings. Pleadings. You know when youre into litigation you have to develop your skills in pleadings. To the level of an art. Dapat alam mong kung paanong i-apply yung rules in the pleadings that you fashioned you craft. So how do you do that in your pleading? A counter claim. Wala na ito dun sa [inaudible, 44:50.5] but nandito kasi sa interfeeder. But this is how it is done. So may title yan di ba? X versus Y, warehouse man ito. Okay for clarity for purposes of the court and understanding your counter claim, di ba? So plaintiff, tapos defendant to, do you have seen the complaint? Itong RTC, Republic of the Philippines and the Regional Trial in the Judicial Region in the third or fourth Judicial or in the national judicial region which is Manila ganun. Now, so what you can do para malaman kagad ng court na you are the interposing counter claim, you can add a section in the title. You can say Y versus of course XY, ABC. Say X, A and B ganyan. Lagay mo ditto, plaintiff, siya ngayon di ba? and interbidder. So, defendants and interbidder. Ganito ha, you can do the same.

Page 8 of 37

12.13.2013 [232:10 min]

Jan. 14

47:26.8

Civil case nakalagay, Civil case number, claims for Replevin di ba? nag-file siya for replevin. With prayer for writ of replevin. Now, so he will this will be answer. So B denies, Y becomes L specular alleges no. did all denials and admissions and denials and then set defenses and special defenses tapos counter claims after that may counter claims. Ang counter claim niya would be, kapag nag lagay ng counter claim, he repeats all the allegations in the previous, the counter claim is interfeeder. PART A

48:35.8

Okay and then, we will have to say that either by motion evolving motion or even here to say that the court would issue summons to the other claimants. So that the court will have appoint a receiver for the claimant. So thats how. You can also dispense with this. You can go answer them pag dating sa counter claim, then you can now claim from a full, yung complaint, yung interfeeder therefore suffered damages, ganun. But the whole point is you are able to raise interfeeder as a counter-claim. And in that you can set it out with your counter claim that here you can, in this section, for claim for interfeeder. You can include there an allegation that summons would be serve on this. Depend on as the cause of the claim. You can cite paragraphs alleging sino yung mga claimants na yun; identity, where they reside, so that the court will know where to serve the summons on the other claimants, thats how you do it. And that is already recognized by the Supreme court in a series of decisions. Again, the only requirement is that the stranger, the claimant stranger those were in plea there by the plaintiff in the replevin suit. Should be susceptible to the jurisdiction of the court by the service of summons. Okay. If that would done then you have no problem you are able to bring to the jurisdiction of the court the other claimants and let the court now direct also the plaintiff the other claimants to made the claims on the property. Now, may interfeeder be filed with the first level courts, or with the inferior court? Well, it already settled that interfeeder is recognizable by the first level court or the inferior court, depending on what? The value of the property involve. So well this is in accordance with Batas Pambansa 129. Or the judiciary action. Where the subject matter of action is personal property value that more than, not more than three hundred thousand pesos outside metro manila. And in metro manila not more than four hundred thousand pesos. The inferior court has jurisdiction. Okay So outside Metro Manila, not more than three hundred thousand ng value. In Manila, not more than four hundred thousand. Kasi pag lumampas dun ang kuwan, RTC na may jurisdiction. So if the subject property is real property within assessed value of not more than twenty thousand pesos outside Metro Manila and in Metro Manila, not more than fifty thousand the inferior court has the jurisdiction. Of course, you have to be very certain about the value. Because the value of the property in question or claim subject of [inaudible, 52:33.6] claims is determiner of the jurisdiction of the court. It was said that where the conflicting claims involve the right to receive a particular amount. Ibig sabihin cash. It is the amount of the claim that determines jurisdiction. The

Page 9 of 37

12.13.2013 [232:10 min]

Jan. 14

issue who between the defendants is entitled to the money. Di ba? and the amount is the object of the action. Siguro kung dalawa ang nagke-claim sa panalo sa lotto, siguro idedemanda mo yung. Lotto is Pagcor? PCSO. Idedemanda mo PCSO pagka may, the right over money. Let us now distinguish interfeeder and intervention. How distinguish is interfeedeer from intervention? Well interfeeder is a special civil action, independent and original. Whereas, intervention is not an original action. But merely ancillary and depends upon the existence of a pending action. Thts one. Number 2 , interfeeder is commenceby filing the complaint it being the original action. Whereas, intervention is commenced by filing a motion for intervention with a pending case. Attachd to the motion the pleading and the intervention. So if you are intervening as a plaintiff, you file a complaint in intervention. If you are intervening the case as defendant, you file the pleading for answer in intervention. Number 3, interfeeder is filed by a person who has no interest in the subject matter of the action or has an interest disputed by the claimants. Whereas intervention is filed by person who has a legal interest in any of the following: 1. Subject matter of verification 2. Successor of either of the parites 3. Successor of both parties adversely affected by the disposition or distribution of the property in the judgment 4. In interfeeder two defendant are brought to the actions only because they are in pleaded as such in the complaint. Whereas in intervention if the complaint in the intervention is filed, the defendants already parties to the pending suit not because of the intervention but because of the original action. No, if it is a complaint intervention, may the defendant to file answer to that complaint of intervention of course. If it is answering intervention, may the plaintiff file reply to that complaint of intervention. Yes of course you can file a reply because, its filing of this reply or answer to the information is what makes [inaudibele, 55:44.0] of the issues.

53:23.3

Now we got to declaratory relief and other similar remedies. 55:53.4 You have refer to Rule 63. You will know that Rule 63 covers not just one but four, apat na special civil actions. The first of course is Declaratory Relief and the three others are covered by the term other Similar Remedies. Which are what, Quality of Title, Force [inaudible,56:25.1] of ownership in case of sales, and reformation of instrument. You will know that while these three special other Special Civil Actions are grouped together with the Declaratory Relief it is not covered or it is not correct to assume that they are also govern by the procedure by the Declaratory Relief. They are not. In Declaratory Relief, if the court is given the prerogative whether or not to entertain the Page 10 of 37

12.13.2013 [232:10 min]

Jan. 14

petition, discretionary sa court. In other words, the court is given the discretion to give due course or not to give due course in the petition. In this case it may dismissed outright. This prerogative is not given to the court when it comes to ordinary civil cases. Or Civil action. Now with ordinary civil action, when the complaint is filed, the court cannot simply dismiss it for [inaudible, 57:24.8] or dismiss it outright. Even if the complaint is defective and this fact is known to the court. Di niya puwedeng i-dismiss yun. The court has no choice but to issue summons and serve copy of the complaint on the defendant directing the latter to file his answer to the complaint within the period provided by the rules. Whatever the effect there might be with the complaint, the court cannot just dismiss the complaint. The court must wait for the defendant to file a motion to dismiss. So defendant siya, this is sad to say that the rule is a deception. As I said our rules of court are impede with exceptions. Sometimes [inaudible, 58:17] Where there are non-bailable defenses for instance that the farther from the face of the complaint as well as the complaint is for ejectment, and it was filed with the RTC, the court can molti porprio dismiss the case, why? Because jurisdiction over ejecment cases is exclusive with first level courts or inferior courts. Now we are speaking however, of exceptions, lawyers should not forget the general rule, that in an ordinary civil action, the court is not given the prerogative proceedings with the complaint. The court should issue the summons to the defendant and leave it to the defendant to file motion to dismiss. Kaya kung gago yung defendant di siya mag-file ng motion to dismiss [inaudible, 59:08] 59:11.3 Now in Declaratory Relief the procedure is different. Upon the filing of the petition to the declaratory relief, the court is given the discretion to dismiss the petition, moto por poprio. If if finds the petition of merit upon a mere reading of the allegations obtained in the complaint. Just like interfreeder, declaratory relief is another civil action which will be filed without a cause of action. This is why it is a special civil action. What is the basis for saying it is, that in declaratory relief there is no need for cause of action well if you read the rules on declaratory relief, it is required that petition should be filed before there is violation of the law, or ordinance or will of contract involve. If the complaint or the petition is required to be filed on before a breach of violation is simply means that the plaintiff or petitioner does not alleged that his right under the law, will or ordinances have been violated. So wala pang violation. So as you can see when violations require in ordinary civil action, it is not required in declaratory relief. In declaratory relief there is no actual dispute or interest in the sense that has no right has been violated at the time of the filing of the petition. This use to violate the principle concerning the duty of the court to act only on cases which are not objectoral or anticipatory. What is the main purpose of declaratory relief? I said, a petition for declaratory relief is not objectoral or anticipatory action. Why? In declaratory relief there is a threat that the case is really, with declaratory relief, arises from a threat of violation of a right under a congract, under a will, under instrument, law or ordinance. And that requires declaratory relief. The main purpose of the petitioner in a declaratory relief is only to secure a authoritative statement of his rights and duties of parties under the contract, will, instrument, law or ordinance in question for their Page 11 of 37

1:00:09

12.13.2013 [232:10 min]

Jan. 14

guidance and enforcement or compliance with the same. Meaning, with a contract, will, instrument, law or ordinance. Not to ask for affirmative reliefs like injunction, damages, or any other relief beyond the purpose of the petition as declared under the rules. It has been held that an action for declaratory relief the question raised is a question of construction, validity arising the instrument or statute. The object is to terminate uncertainties in an instrument or statute and the judgment of the court cannot spend beyond a declaration of the rights and duties of the parties to the action that cannot provide, corrective remedies or reliefs. Because of the absence of allegations seeking material or affirmative relief, should a petition for declaratory relief, it has been held that when the main case for declaratory relief a third party complaint is, inconceivable di puwede yung third party complaint. The reliefs of in a third party complaint is four contribution. Endemnity. So probation or or other relief from the third party defendant in respect of the claim of the plaintiff against him. Thus, this relief is not available because any of the declaratory relief the court is merely interpreting the terms of the contract. So hindi puwede yung third party complaint sa declaratory relief action. Because a third party complaint six contribution; endemnity, sugrogation, or other relief from the third party defendant in respect of the claim of the plaintiff against him. So because this relief is not available in declaratory relief on account with the department the court is merely interpreting the terms of the contract on law over [inaudible, 1:04:01.9] However, it has been held that the petition for declaratory relief may entertain a compulsory counter claim. So hindi puwede yung third party complaint but in some cases, well it has been held by the Supreme Court that a counter claim of compulsory counter claim maybe raised in an action for the petition for declaratory relief as long as it is based on arising for ordinary civil action subject matter of the petition. And that this is the case of Visayan Packing Corporation versus Separation Commission. And Ledesma versus Morales. They are among those cases that you have to read. Now the question is, since the petition is not alleged any violation of right, against who must the petition be filed? Or sino ba ang dapat maging defendant or respondent? The answer is, it depends. If it is based on the contract the party defendant should be anyone of contracting parties. If it involves a law, or ordinance it should be filed against the public official who is in charge of executive law of ordinance. So you will see in certain declaratory relief action, it would be X versus honorable secretary of justice. Or Department of Agriculture and Natural Resources. Because they are the officials who are going to implement the law being questioned in a declaratory relief action. Now, note that Rule 39 on execution judgment and final orders and resolution has no application in declaratory relief judgments. Hindi puwede yung Rule 39. Execution yan ano, judgments final orders why? Because declaratory relief is intended solely for the declaration of rights and duties. It is not possible to apply Rule 39 even if the declaratory judgment of the court has already become final and executory as what the court does in the Page 12 of 37

12.13.2013 [232:10 min]

Jan. 14

declaratory relief action is only to declare the rights and duties of the parties a contract with law or ordinance. As a general principle therefore, the judgment in the declaratory relief is said to stand by itself and no executor process follows as a matter of course. It is unlike the judgment in an ordinary civil action which is coercive in character and enforced by execution, by writ of execution. Declaratory relief is available remedy if filed before there is any risk of violation of the deed, contract, statute, ordinance, executive order or regulation. It is the fundamental character of declaratory relief. It will prosper in other words, when brought after the contract of statute has already been breached or violated. In such situation, there is nothing more for further to explain or clarify sort of judgment or final order. However, where the breached of course not before the filing of the petition for the declaratory relief but after the action is being instituted and before the final termination the action is not to be dismissed. But maybe converted to and ordinary civil action and the parties allowed to file his pleadings as maybe necessary or proper. So if the final declaratory relief action after violation of the contract or law which already been committed, it would be dismissed. Because improper for declaratory relief for the remedy of [inaudible, 1:08:18.3] because there is already a breach. But if the action is filed before a breach has been committed and while its pending there was violation then the case will not be dismissed but maybe converted to an ordinary civil action. For that purpose the court may allow the parties to file his pleadings as maybe necessary or proper for purposes of conversion of declaratory relief case to an ordinary civil action. You should know that the absence of breach, does not mean that the petition for declaratory relief does not involve justiciable controversy. Yung justiciable controversy has a technical meaning.

1:09:27.7

It only means right for judicial determination. Justiciable controversy is in fact essential indispensable for the propriety of the petition for declaratory relief. It may that be a controversy consisting one after violation of a right by another but one with the ripening seeds of a controversy. Ito ang ginagamit ng court. Nahihinog na bunga, seeds. Ripening seeds of controversy for declaratory relief. The controversy is not fair, in other words, kapag may ripening seeds of controversy, it only means that the controversy is not merely imagined. Does not just existing in your mind. Or one that is academic or rule or theoretical. A justiciable controversy is required because a court in a petition for declaratory relief is not called upon to render mere advice and opinion. This is basic in our court system. Our courts, are not suppose to render advices or opinions. Because all the courts render in cases before them is judgment. A judgment is the one that finally disposes of the issues raised in the case. Now, advice and opinions are not within the provibs of courts they are within the provibs of what, the executive department. The one that renders advice or opinions well do you have the department of justice. Even I think the solicitor general who renders advice and opinions. I suppose when it comes to tax matters the BIR then theres advice and opinions. When you go a transgroup corporation issues then the securities and exchange commission, renders advice and opinion.

Page 13 of 37

12.13.2013 [232:10 min]

Jan. 14

You see the executive department is very opinionated department. Corny, but its true. So they quarrel every trial, because one opinion is will never submit to another opinion. So in the press office nag-awy din sila. There is the Binay group and there is the Balay group. Thatss why Carandang resigned. Kawawa naman siya. We just realized that our system in government yung principle is, talo pikon. Pag na-pikon ka talo ka. Tatlo pa lang yung pinatamaan, yung mga pagpupuna, katulad ni Mar Roxas, may itinitatago pa ba ang president? Sayang. But he is not made of presidency. What do you say about the dead in Tacloban, if you did not identify the dead then dont count. Dont include them in their count of the dead. Walang pangalan eh. Kasi kay Mar Roxas, yung mga patay may pangalan. So kung walang pangalan, di ma-identify para maamoy lang yan. Moy patay na baboy roon. And you think he is right ano? Kakaawa.

1:14:01

Okay, so well, as I said a justiciable controvery well so the controversy that is cognizable or purposes of declaratory relief, is one that is not nerely imagined or one that is academic or theoretical. But is one with the ripening seeds of controversy. So it not an actual violation. What makes it subject of declaratory relief proper subject of declaratory relief is it involves ripening seeds of a controversy. A controversy, judicial controversies, is a required because a court in the petition for declaratory relief is not as I said, called upon to render mere advisable opinion which unlike a judicial proceedings as [inaudible, 1:15:13] effect. And requires no controversy of whatever degree. Courts as I have said are not called upon to resolve questions as a pure academic exercise. Yung mga pure academic exercise, sa classroom yan pinaguusapan. Kasi academics dinidiscuss yan sa academe, like Lyceum. Here we discuss academic issues. For instance, a person who impunes a statute must show that you will sustain a direct injury as a result of the enforcement of the statute. An actual injury is not necessary all that is required is an impending violation of plaintiffs rights. Okay? There is a case that I mentioned a while ago, that should present to you the good example of a justiciable controversy for purposes of declaratory relief. And it is Risen Park Incorporation versus Separations Commission. In one of those cases anyway there was a law that suppose to subject a [inaudible, 1:16:58]industry yata yun. So before that law, tax law would be implemented, the affected industry filed a petition for declaratory relief. And they won. They questioned in fact the constitutionality of the law. And they won. I think that I mentioned that before. Okay. Declaratory relief is available remedy filed before there is a violation of the deeds or contract, statute, ordinance, executive order or regulation, and this you should never forget this. That the magic word is before, before there is a breach or violation. Then you should also remember, always bear in mind that the controversy, becomes insatiable for purposes of declaratory relief if you can already say that in involves ripening seeds of a controversy. Before we go to other remedies.

Page 14 of 37

12.13.2013 [232:10 min]

Jan. 14

Always, again it is proper before a violation but if you file at the declaratory relief after the violation then it will be dismissed. But if you filed the action for declaratory relief, before the violation and in the course of the during the pendency of the case, there was violation anyway of the contract or, breach of contract or violation of the law then the action will not be dismissed but will be converted into ordinary civil action. And therefore shall be allowed to file the appropriate writ as they may deem to file. So with that, that covers the treatment of declaratory relief we go to other Similar Remedies under Rule 64. 1:19:35.8 63 Im sorry. I think the case is a Southwings Heavy Industries. I suggest you read these cases. Okay we go to the other part of Rule 63, Other Similar Remedies. I mentioned earlier that while the action is under Other Similar Remedies, are proof with declaratory relief. It is not correct to assume that they follow the same procedure as declaratory relief. They do not. Magkaiba silang [inaudible,1:20:36] If the complaint is propriety of title, or consolidation of ownership, the trial court does not have the discretion to dismiss the claim out right. Unlike in petition for declaratory relief. The purpose of one of the procedure to advise or governs on ordinary civil action in other words, the court must issue summons and a copy of the complaint served on the defendant. And after due issues served for trial and render a decision thereon after trial. In other words, actions covered by the term other Similar Remedies the court is duty bound to observe the procedure for ordinary civil action which does not obtain in case of declaratory relief. The court is not given to discretion to dismiss the complaint Moto porprio, proprieting of title or reformation of an instrument or [inaudible, 1:21:29.4] of ownership. The court must have as I said to serve summons on the defendants together with a copy of the complaint. The defendant must file answer. Otherwise will be declared in default. Now we go to reformation of an instrument. An action for reformation for an instrument is not an action brought to reform a contract but to reform the instrument evidence in the contract. The action presupposes that there is nothing wrong with the contract itself because there is a meeting of demands between the parties. It refers not to the deed or to the instrument but through a meeting of the minds of the parties. In other words, talagang may perfected contract nagkasundo as to price as to property, sale property price, basta. The contract is to be reformed because despite the meeting of the minds of the parties to the object and to the course of the contract, the instrument does not reflect that thru agreement by reason of mistake, fraud, inequitable conduct, or accident. So they have agreed on the object, the course of the contract but the instrument does not reflect the true agreement. Why? Because there must have been mistake, fraud, inequitable conduct or accident. Now reformation instrument is therefore brought in order that the true intention of the parties maybe expressed in the instrument. Page 15 of 37

1:21:22.6

12.13.2013 [232:10 min]

Jan. 14

Ire-reform mo ngayon. Example. The parties have agreed on the size of the land subject of the sale. However, the seller who prepared the deed of sale, put in there smaller area, in the contract. So you see here, that the defect is in the deed of sale which is the instrument. This is proper case for reformation of instrument. Now when the parties agreed, upon a mortgage or pledge of the property but the instrument states that the property is sold absolutely or with a right of the purchase, reformation of instrument is proper. Note, however that the consent of the party per contract has been procured by fraud, inequitable conduct or accident, in an instrument extended by the parties and that was the instrument itself is defective, because of vitiations of consent. The remedy is not reformation of instrument but an action for annulment of contract. The contract is voidable or anullable where one of parties consent is vitiated. So ang distinction ng reformation of instrument, is Yung Reformation, there is meeting of the minds, di ba? as to object, contract, but then what happen was, because the size they agreed on 1 hectare halimbawa, but the plaintiff put in there, instead of 1 hectare, nilagay niya is 800 square meters. Di ba? this is proper for reformation of instrument. But then, the reformation doesnt apply where there is vitiation of consent. Vitiated consent. Ibig sabihin, niloko ng isa yung other party. Kapag niloko eh di there is no meeting of the minds. The first one has meeting of the minds when consent is vitiated, in other words, there is no meeting of the minds, then reformation of instrument is not the remedy you file for the annulment of the contract. Nor reformation of instrument. Also note that reformation of instrument cannot be brought to reform a simple donation in the [inaudible, 1:27:19.9] where in a condition is a false or wills or when the agreement is void. So there are three instances where we cannot bring action for reformation of instrument. We go to consolidation of ownership. 1:27:38.3 The concept of consolidation of ownership under Articles 1607, of the Civil Code as its origin at the substantive provisions of the law or sales. Under the law, a contract of sale will be extinguished under by legal redemption, or conventional redemption. Legal Redemption is also called reducto legal. Any cases statutory mandated redemption of a property to be sold. Reducto legal. So for instance, a co-owner of a property may exercise the right to redemption in case the shares of other owners or any of them are sold to a third person. The owners of the adjoining lands have the right of redemption when a piece of rural land with a size of 1 hectare is or less is alienated. Eto yung mga owners at saka adjoining owners. Conventional redemption, also called facto de retro, these are familiar to you ano? Facto de retro, eto proceeds from law or statute, eto yata proceeds from contract. Do you agree that there should be a return? Conventional redemption also called facto de retro sale is one that is not mandated by Page 16 of 37

1:25:09.7

12.13.2013 [232:10 min]

Jan. 14

the statute but one who has takes place because of the stipulation of the parties to the same. Contractual. Factor de retro is contractual. Yung retracto obligal is matter of law or statutorily mandated. Article 1601, of the Civil Code provides that the conventional redemption takes place when the vendor reserves the right to re-purchase the thing being sold. So if you sell your property with a facto de retro stipulation, you say Im selling this property et cetera but I will subject to re-purchase after five years. That is a contractual stipulation to buy back the property. The period of redemption maybe fixed by the parties in this case, the period cannot exceed of ten years. From date of the contract. The absence of the expressed agreement the redemption period shall be four years from the date of the contract. Where the redemption is not made to within the period agreed upon, indicates the subject property subject of the Article 1607 of the Civil Codes provides that the consolidation of ownership in the vendee shall not be recorded in the registered property without a judicial order after the vendor has been duly heard. So, consolidation of ownership as one of the Other Remedies, consolidation of ownership. Laws comes from a final and statutory court order. Kasi if you agree in this kind of stipulation that there is a right to repurchase, say five years. Five years I will re-purchase this land I am selling to you. What happens if I fail to repurchase, does the title automatically vest in the buyer? Hindi. You have to go to court, and get upon the petition for presentation of ownership. Because that title would not be transferred to you, until you get order from the court approving the consolidation of your ownership over the property. It is like pledge if the pledgor fails to redeem the thing pledged you cannot, if you are the pledgee just appropriate the thing pledged. Otherwise it become factum promisorum. Correct. And therefore you disappoint. You have to initiate proper action in order that your ownership over the thing is consolidated. You should know, the action brought to consolidate is not for the purpose of consolidating the ownership of the property in the person of the vendee or buyer, but for purposes of registration of the property. The lapse on the redemption period out the seller a retro exercising its right of redemption, consolidate, ownership of title upon the person of the vendee by operation of law. But Article 1607 of the Civil Code, requires the filing of the petition to consolidate ownership because the law pre-proofs the registration of the consolidated title without judicial order. Is that clear? Okay so, thats all about consolidation of ownership. Madali lang. we go to Quieting of Title. 1:34:38.7 Pag maingay yung titulo dapat patahimikin. Well, its not because the title is maingay no. but because there is a loud in your title. Pag may ulap. So this action is said to remove a cloud in the Title of a real property or any interest in that property. The action could be place in a situation where an instrument or a record apparently valid or defective but is in truth and in fact, invalid, in defective all the more Page 17 of 37

12.13.2013 [232:10 min]

Jan. 14

enforceable. And maybe prejudicial to subtitle to real property. This action is then brought to remove a cloud of the title to the real property or any interest in that property. It may also be brought as a preventive remedy, to prevent a cloud from being cast upon the title to the real property or any interest in that property. The plaintiff did not being in the possession of the real property, before they may deem the action as long as he can show that he has a legal or an inequitable title of the property which is subject of the action. Now, where do you find the petition? A petition for declaratory relief is a exclusively cognizable by the Regional Trial Court because the subject matter is not capable of pecuniary estimation. However that your action is not capable of pecuniary estimation. Pecuniary estimation and this is a legal term. Automatic yun, the jurisdiction over that action is Regional Trial Court. Kasi kapag alam yung amount then the amount would take this court to file it below certain amount, then it should be First Level Courts. How about actions covered by the other term, by the term other similar remedies? Well they are not exclusively cognizable by the RTC. Under Batas Pambansa 129, actions involving Title to or possession of real property could be cognizable by law the first level courts, or inferior court and the Regional Trial Court. Depending on the assessed value of the real property. I mentioned na kanina kung anong value nung real property dib a? Below 300, outside Metro Manila, below 400 within Metro Manila. Metropolitan yun. Yung municipal, 2o and 50. So, be careful here, if you are asked which court who has jurisdiction for declaratory relief, another similar remedy is do not jump immediately to say that the actions are cognizable by the RTC because kapag declaratory relief not capable of pecuniary estimation. But then when you go to the other remedes, dib a? the value is determinable. We go to the next rule. 1:38:23.3 Review of COMELEC and COA judgment and final orders or resolutions. We think its, conjunction with Sensorary provision and mandamus. Well the next two rules, 64 and 65 they involve Sensorary but differently applied. That is the reason why you have to take discuss Rule 64 and 65 together. Why is that so? Because the two rules involve Sensorary. But the application of Sensorary in these two rules are different. Magkaiba yan. Now the difference in application extends from the fact that Sensorary under Rule 65, 64 and 45, envisions different proper antecedents or context. You must at this point already appreciate the difference between the term Sensorary and fortified Sensorary in Rule 64 and Sensorary in Rule 65. In 45, the term Sensorary is a mode of appeal to the Supreme Court, correct? Rule 64 talks of Sensorary as a mode of review by the Supreme Court of the decisions and final Page 18 of 37

12.13.2013 [232:10 min]

Jan. 14

orders or resolutions of the COMELEC and COA. Sensorary in 65, is not a mode of appeal. It is a special civil action. Okay? You must pay particular attention to 64 where Sensorary is a mode of review but the form and requirement to be complied with are those specified in 65. Okay? In Rule 45, Sensorary as a mode of appeal, is use to assail the judgments of the CIA, the RTC, the Sandigan Bayan and other bodies where the law allows the decision to be appeal directly to the Supreme Court. Yan ang Rule 45. The questions allowed under Rule 45 that is appeal by Sensorary are questions of law. Not necessarily related to the questions of jurisdiction of the court. Although there are already seen or noted earlier, at least eleven exceptional instances whether the questions of fact could be raised with the Supreme Court under Rule 45. Now on the other hand, in 65, as a Special Civil aCtion, the question that would be raise is only question of what? Question of jurisdiction. On the question of jurisdiction in 65. A question of jurisdiction is always a question of law. Di ba? but the question of the law under Rule 65 is limited to issues of jurisdiction. Not to any other question of law. There is also a significant difference between Sensorary in 45, 64 and 65 when it comes to the period and in procedure. Note that the periods are strictly applied. In 45 the period to file is 15 days from receipt of the decision or final order or denial of the motion for reconsideration. And it is expressly provided that the period would be extended for another 15 days for justifiable reasons. Now in 64, it is 30 days. So una 15, then 30 days. From notice of the judgment or final order or resolution to be reviewed. Now in 65, the period is a bit longer. Not in fact it is the longest among the three. It is 6o days. So 15, 30 and 60 days. Now 60 days from receipt of denial of motion for reconsideration. There is nothing mentioned in the rules about the extension of the 60-day period. Walang sinasabi but you can always try. Another significant difference between Sensorary in 45 and 65 is that Sensorary as a mode of appeal in 45 will stop or prevent the execution of the judgment or the final order or resolution subject of the appeal. There could be no execution of judgment as said in Rule 45. This is not so in 65. The filing of petition for Sensorary in 65 does not stop the Trial Court from further proceedings of the case before it, unless the uplift court issues a TRO or a writ of preliminary injunction upon application of the petitioner. So, if there is any proceeding being undertaken by the trial court shall continue even if one of the parties has filed a petition for Sensorary. Now, if you now appeal before the Sandigan Bayan, in a criminal case for plunder. And you say, your honor will be elevated your denial or motion for judicial determination to the Supreme Court. So may we pray that the hearing or the arraignment of the accused that be hade noveas. The Sandigan BAyan justices may look at you with kindness and say okay we will cancel. But if in the next hearing you do not present to us a TRO for a writ of preliminary injunction form the Supreme Court we will proceed with the arraignment. So what do you do? You just say, yes your honor. Di ba? because under Rule 65, unless may TRO, tutuloy sila sa baba. Be it in Sandigan Bayan, be it in a Regional Trial court. So the next hearing, the next setting for Page 19 of 37

12.13.2013 [232:10 min]

Jan. 14

the arraignment, you appealed with Sandigan Bayan, and the Sandigan Bayan, and then you again say, your honor my understanding with the Supreme court is that in the deliberated on the petition on the, they will be deliberating the petition by tomorrow. So they are unable to consider the application for TRO. May ask for [inaudible, 1:45:32] again, because you are so gentleman or lady like. The Sandigan Bayan again grant you a postponement. And then, so they reset the second resetting. You had an appeal and you have already inventive mind. You already understand that the last schedule for the Supreme Court to consider your petition, they were unable to, because there were so many items in the agenda before and they have said that the consideration by petition tomorrow. So, against that maybe the Sandigan Bayan may filed due.kasi wala nang chance eh. But then the Sandigan Bayan may ask you also, how did you know? You dont come there and say, your honor, I checked. It is now allow that you can verify the status of your petitions with the Supreme Court and you will now be given proper advise. In fact you better yet, write the Supreme court and inquire status of your petition. Ad clerk of court of the Supreme Court would write back to reply. Specially so if you say that there will be a hearing before the Sandigan BAyan tomorrow and they need information of the status of my petition. And then so if you received that advise and then your petition was not deliberated on, scheduled but the following day before your, after your hearing, again Sandigan Bayan may allow, [inaudible, 1:47:27] this you will know that postponement inside the Sandigan Bayan sometimes umaabot ng two months eh. Although the Sandigan Bayan justices ma, whats wrong with your client to be arraigned? We agreed to a provisional arraignment. In other words, it will not have any implications against your client. Other words it could be without remedies to however way the Supreme Court resolves your petition. But then, given the third hearing or setting for the arraignment, still failed to present a TRO, the Sandigan Bayan said, enough is enough. And your client will be arraigned. Which brings to you and your client in question of why dont you want your client to be arraigned? If you filed a motion for judicial determination, on your strongest relief that your client should not go trial and sees innocent, what better way for you to go to the trial and prove your claim of the innocence of your client. And if you do win the case, pagka jurisprudence recognizes that people should be spared the cost the time they could be subtrial. If in the first place the accuse is really innocent. And that would be your time to ask for postponement, every time. And as I said, my experience with Sandigan Bayan is not very liberal. To them its just a waiting game. Wait, wait. Problema dyan pagka-postpone ka ng postpone. Nakalimutan ng Sandigan Bayan yung kaso mo, hindi ka nagt-trial and your case is finally tried, the file is already too old to serve sentence. You cannot serve several exempted na no, for 75 years old. You cannor serve 3 sentence anymore di ba? By the way, as I was saying another significant difference with Sensorary in Rule 45. And that in Rule 65 as Sensorary as a mode of appeal, in 45 not stop or prevent the execution of the judgment or final order or resolution, subject of the appeal. However, this is not so with respect to Rule 65 because unless you get a TRO or a injunctive relief from the uplift court, then the lower court, trial court or the Sandigan BAyan will continue with the case proceedings.

1:46.25.7

Page 20 of 37

12.13.2013 [232:10 min]

Jan. 14

So that would be the thing with your Sensorary. So its very important as I said that you will get a TRO or injuctive relief. Without that, you just give raise to your self to trial. Now with respect to jurisdiction, you should refer to the institution and Batas Pambansa 129, whose vest in the Supreme Court the CA, the Sandigan Bayan and the Regional Trial Court to review on the jurisdiction over a petition for Sensorary or revision of mandamus, co warranto andso, the constitution in B.P. 1296 grant to the Supreme Court, court of appeals, Sandigan Bayan ang the RTC, over these cases and take not there is no exclusion among them so long as the petition has not been filed yet. It accounts for some legal commentary so that there is concurrence of jurisdiction among this course or these cases. Even then, B.P. 129 does not even use the word concurrent. Be careful with that kind of opinion of the legal writers or legal commentarist. Because you should not be mislead. While theoretically, a petitioner is given a choice as to which court to file his petition for Sensorary, this privilege attributed the limited by another principle that we discuss earlier in this course. Namely; the principle of hierarchy of the courts. You may want to refer on the section 4 rules 65 which explains how the principle of hierarchy of the courts means. So while the petitioner theoretically invokes straight on the Supreme Court on a petition for Sensorary and you argued to high heavens that the law and the constitution and if you want to give the Supreme Court the original jurisdiction over Sensorary. The principle of hierarchy of the courts should tell you that you cannot. Actually Rule 65 tells you that the general rule is that you cannot simply the petition for Sensorary with the CA, or the RTC. If you read Section 4 , Rule 65 it says that when it comes to quasi judicial bodies you cannot go to the RTC. The rule is that the petition for Sensorary should be filed only with the Court of Appeals, if the petition is filed direct from the Supreme Court, can the Supreme Court dismiss the petition because the petition fail to follow the principle of hierarchy of the courts, the answer is yes. It is part of the procedure. Of course the dismissal by the supreme court does not prevent the petitioner from filing the petition with the proper court. While here you must serve all the time the period that the Rule says to file Sensorary under 65, 60 days. 1:54:10 Now what makes a petition for Sensorary to revision or mandamus special civil action? What procedural principle applies to 65 which are not applicable to ordinary civil action? Well if you go over Rule 65 you will notice that whenever a petition for Sensorary or provision for mandamus is filed the court is given due authority of discretion to outright dismiss your petition just like in the declaratory relief. Rule 65 says, that if the petition is not sufficient in form and substance the court to dismiss the petition moto proprio, this procedure is not available in ordinary civil actions. Then also under Rule 65, the mode of acquiring jurisdiction over the person of the respondent is different from ordinary civil actions. Example suppose the court gives due course to the petition because it thought the petition was sufficient in form in substance, will the court issues summons and respondents while we talk jurisdiction over the person of the respondents? As it is done in ordinary civil action? The answer is NO. This is why special civil action or the process by which the court acquired jurisdiction over the person of the respondent is not by summons. So, summons is not the end or the process by which the court acquires jurisdiction over the defendant or respondent. Page 21 of 37

12.13.2013 [232:10 min]

Jan. 14

How then will the court acquires jurisdiction over the person respondents in Rule 65? Well it is by serving upon the respondent a copy of an order to comment on the petition. Nakalagay a dyan, to file comment. May politics pa siya, not among should be dismissed. So it is by order. This is a process different from summons or service of summons civil actions the compulsory process and is used by the court by obtaining jurisdiction over the person of the defendant is by service of summons. Unless of course he defendant voluntarily release itself to the jurisdiction of the court by personal appearance. Or by appearance of his counsel. Di ba, may entry of appearance. Kapag before service of summons, your lawyer already files summon of appearance , sumunod na appearance did not dispenses with the requirement of summons, service of summons. Kasi nag-volunteer ka eh. Now, in that instance the party who voluntarily appears either by entry of appearance thru counsel or by filing already a responsive plea to the complaint. Responsive pleading is the answer to the complaint. Note that the civil cases unless summons was served on the defendant, the latter can always assail of the jurisdiction of the court over his person. While this is not so under Rule 65. Because the court does not issue summons. What if, it issues an order for the respondents to file his comment not a motion to dismiss on the petition. The court in Rule 65 requires a respondent to file comment within the fixed period indicated therein usually ten days. Unlike in summons in ordinary civil actions, the period is fixed, for the filing of the answer under the rules, 15 days. Suppose of the service of the order or the respondent to file comment, on the petition within say ten days, the respondent based of highly required comment may the court declare him default? The answer is NO. There is rule to see under Rule 65, unlike in the ordinary civil cases. In the ordinary civil cases, where the defendant fails to file answer with the recommended period, the sanction may be enforced by the court is a declaration of default and the revision of a default judgment against the defendant. 1:59:08 Now in 65 where the respondent fails to file comment, he will not be declared in default, the court will just continue hearing the petition and that after render judgment on the petition based on the petition alone. Why is this possible for the court continue hearing the petition and adjudicate the case even if the respondent fail to file comment? Well, the answer is because under Rule 65 there are no factual issues involve. The issue as you already observe earlier refers only to jurisdiction. That is whether or not the court act without due jurisdiction or committed great abuse of discretion amounting to lack or loss of jurisdiction. Also, do not be of the impression that Sensorary to revision and madamus always go together. Although they are embodied in the same. Rule 65 it does not mean that whenever a petitioner files a petition of Sensorary, you should always call for his petition one for Sensorary provision on mandamus. Take not, these are three distinct and independent special civil actions. So, there can be no petition that can be a petition for Sensorary without involving revision there could be petition for revision without involving Sensorary. Page 22 of 37

12.13.2013 [232:10 min]

Jan. 14

2:00:51

Before the amendment of the 1997 rules, a petition for Sensorary for revision was design solely to assail or challenge interpreting authority orders of by the courts. As you know an [inaudible, 2:01:08] order is not appealable. And one of the requirements of Rule 65 for a petition for Sensorary is what, that there is no appeal or plain, speedy, adequate remedy in the ordinary courts of law. Now this is no longer true. The Supreme Court by administrative circulars and even certain decisions has introduced new changes on our system. Today, Sensorary is available even if the order challenged or assailed is a final order. So Rule 65 is no longer limited to challenging or assailing interpretatory orders. An example to this situation recognized expressing the rules where final orders can be challenged by a petition for Sensorary under Rule 65. I ask you to refer to Rule 41, if you recall Rule 41 on appeals it is provided therein, it provide certain order are not appealable even if they are final orders. And what is your remedy against these final orders that are not appealable? Your remedy according to Rule 41 is petition for Sensorary under 65. So inter [inaudible, 2:02:13] orders, final orders, and even judgments can now be subject of a petition for Sensorary under Rule 65.

2:05:35

There are other final orders enumerated in Rule 41 that are not appealable. Your remedy is under Rule 65. When it comes to judgment in the concept of separate or several judgments rendered by a court. For which a case is depending a being heard although it is a judgment it is not appealable according to Rule 41. The remedy is Sensorary under Rule 65. Another example under Rule 41 is an order of dismissal of a case. Which is not an implemented mandatory but by a final order because it is more to be done by the trial court with respect to the case. Yet 41 says, the order is not appealable. And your remedy is Sensorary under Rule 65. The only time when an order of dismissal is appealable is when it is dismissal with prejudice. Kasi maraming ginagawa ng courts eh, dismiss without prejudice. Ibig sabihin it can only be [inaudible, 2:06:34] within a time. Now I have encountered cases like that. My argument there is , it is without prejudice only within a period of appeal. Pag lumagpas na yung period of appeal, the plaintiff or the defendant can no longer revive the case, it is final and executory. It cannot also be appealed anymore because its final. Di ba? Now equally important, note that a petition for Sensorary, to revision or mandamus, there is a cause of action, because the petitioner alleges the court of quasi judicial body has acted without jurisdiction in the excess of jurisdiction or with grave abuse of discretion. And there is always a private party involve in the petition. The private party is the party and who is favor in the order of judgment was rendered. So, in Rule 65 there is always a public response there meaning the judge or the quasi judicial agency and a private party. Private respondent which is the private party in that case. But a feature of Rule 65 which very peculiar is that the public respondent or the judge or the quasi judicial party, is not allowed to defend himself or itself openly. In fact the public respondent which is the

Page 23 of 37

12.13.2013 [232:10 min]

Jan. 14

court, as I said, court as quasi judicial party, that rendered the said judgment or order is prohibited from defending itself personally in a Sensorary case. Papano na ngayon niyan? Well, I think it is Section 6 of Rule 65 says that the burden of the public respondent rest on the private respondent. The public respondent would not file separate plea on pleadings on the usual case when the appealant court would require comment on the petition that most of should be dismissed. So, that public respondent meaning the court of quasi judicial body cannot file his/her comment on the petition. He could not even appeal before the court to defend the validity of the court order. Appeal before the court to defend the validity of his order, judgment, you cannot appear before the court of appeals to the supreme court and say, your honors, I acted within jurisdiction. Di ba? I had jurisdiction when issuing that order. Di puwede yun. 2:09:54 The burden of the defending public respondent rest on the private respondent. Everything is left to the private respondent to defend the validity and propriety of the said order or judgment.

This has become contentious in a case that we were handling so , we prepared a comment and this is how I faced the comment. Private respondent so and so. And public respondent honorable so and so. Sa opening pa lang inilaga ko na yung, in your statement that the comment is for both the public respondent and the private respondent. And then I said, And public respondent pursuant to Section 6 of Rule 65. And then, the comment is add. That is to emphasize that compliant yung comment ko dun sa Rules of Court. One of my colleagues, said , how can start defending the private respondent, problema nga diyan, sinasabi na bias on our favor. So if he defend him in our comment, will not confirm the allegations against the judge that his bias on our favor. Eh sabi k, di ko na ianswer. Basahin mo muna yung rules. Kasi ano pa lang ito, arguing cue, di ka marunong. Mag-aral ka. So, you know uplift practice is an entirely different world. Its not different from trial kasi ang uplift practice is so [inaudible, 2:12:07] And of course in certain instances the CA or the Supreme Court might, may set that case for oral argument. When that happens you can say to yourself as litigation lawyer, that you have the right. Because talagang not all lawyers, how many lawyers are there in the country. Not all lawyers are gifted or lucky enough to appeal in the Supreme Court to orally argue the case. As I said when you argue you argue well, when you go out of the door. It would be like walking on air. Kasi feeling mo accomplished ka na as litigation lawyer. As I said the burden of defending the public respondent rest on the private respondent Page 24 of 37

12.13.2013 [232:10 min]

Jan. 14

indeed and this is by express provision of Rule 65. The question is, because the petitioners suffered damages, may he be entitled to award of damages under 65? Well if you go over 65, you will notice that there would be an award of damages in mandamus. In fact Rule 65 expressly says that in a petition for mandamus, the court would properly give an award for damages. How about in Sensorary or prohibition, may damages be properly awarded to the petitioner? You will note that in the definition of Sensorary, and prohibition under Rule 65, there is nothing there that says damages maybe properly awarded in Sensorary and prohibition. Unlike in mandamus. However, according to the supreme court, the silence in sections 1 and 2, of Rule 65 as to the propriety of an award of damages in Sensorary and prohibition, does not mean to say that damages may not be so awarded. So, there could be an award of damages in all these petitions for Sensorary, prohibition and mandamus. Let me caution you however that if you just rely on 65 it is only in mandamus, the rules allow an award of damages. So award of damages is not expressively given in Sensorary and prohibition under Rule 65. It is given only by virtue of a Supreme Court decision. Now you know, this is how is the one of the most of how our rules, evolve by Supreme Court decisions, by Supreme Court circulars. Supreme Courts decisions that cover matters other wise not covered by expressive reasons under rules of court. They would usher in the occasion for amendments to the rules of court. Because the rules of court is not a body of dead rules. They are in fact very much alive. So, all these changes that we encounter like Sensorary being before only covering interpretatory order. But now also final decisions and orders. These are example of the rules being alive. Being alive. So part of the contributors of this changes in the rules or be the lawyers. The way you practice the way you lead your cases. Like while am about to file a plunder complaint with the ombudsman and targeting as his respondents a government corporation together with the private corporations that are offering other contract with agency. And because my clients are consumers, customers of these private corporations, we are prohibited by access of records. 2:17:23 And we therefore we have a problem of proof. So in the complaint that we are filing, the affidavit complaint we are filing theres a section there where we pray that the ombudsman exercise its plenary power to secure custody of any known documents that are material and pertinent and relevant to the prosecution of the case. And then should involve minutes of meetings inter-office memoranda nor as is like a subpoena, and then its not in the ombudsman law. Its not also in the constitution provision on the ombudsman. But I am hoping that the ombudsman would see through the plea and perhaps am hoping that it should provide the ombudsman to secure the amendment of the ombudsman law in order that it would have more power in terms of taking custody of documents and records specially where the respondents are high officials or even members of the board, or directress of huge corporation. So thats one instance in my mind that we as lawyers can contribute to the development Page 25 of 37

12.13.2013 [232:10 min]

Jan. 14

of the rules of procedures. Okay. So, we have covered the rules 64 and 65. We now go to Rule 64. Review of Judgment and Final Orders Resolutions with the COMELEC and the COA. And as I said we refer to Rule 64. This is a new rule actually. It is based on the 1997 Constitution. Section 7 Article 9-A the Constitution on the Prosecution Commissions provides unless otherwise provided by the Constitution or by law, any decision, order of ruling of this commission maybe brought to the Supreme Court on Sensorary by the agreed party within 30 days from receipt of copy thereof.

So the period of 30 days is a Constitutionally mandated period. For you to elevate a decision order or ruling of any of the COMELEC or COA. Now the Supreme Court interprets this provision refer to Sensorary and the Rule 65. Not appeal by Sensorary under Rule 45. Now, while the 1987 Constitution speaks of 80 decisions, order or ruling of is commission. Rule 64 does not cover the decisions, rulings or orders of the Civil Service Commission. Which is similar to the two other commissions. They are the Civil Service Commission is also a Constitutional Commission. The judgment of the Civil Service Commission cannot be assailed by a petition for Sensorary of the Supreme Court under Rule 64. But by appeal to the Court of Appeals under Rule 63 by means of a verified petition for review. So mababa ang kategorya ng Civil Service Commission. By the distinction, well the Constitution does not, the Supreme Court does not explain. The petition under Rule 64 you see Rule 65 cannot question the findings of facts of the commission involve meaning COMELEC or COA. Where such findings supported by substantial evidence. When supported by direct receipt quantum of evidence, such factual findings are final and non reviewable. The petitions shall be filed in 30 days from notice of the judgment, final order or resolution would be reviewed. Note that the period to file here is shorter than that for Rule 65. Which is not later than 60 days from notice of judgment, order or resolution or from notice of denial of motion for reconsideration or motion for retrial. Note that the 30 day period does express preference with a judgment of final order by the commission concern. Thus if the petition for Sensorary is directed against and inter [inaudible, 2:22:56] order if allowed the period in 65 should apply which is 60 days. So kung ang target nila ay inter [inaudible,2:23:04] order. Then 65 period provided on the 65 applies which is 60 days. Now whether or not a party may file for motion for new trial or a motion for reconsideration to judgment, by an order or resolution of the commission, depends on the procedural rule from the commission concern. Kasi lahat ng COA, COMELEC may sariling silang rules of procedure. Where such motion are allowed in filing of either and interrupt the period for filing of the petition for Sensorary. If the motion is denied, the aggrieved party may file the petition in the remaining period, but which shall not be less than five days in any event reckoned from the notice of the denial. The interruption of the period for the filing of the petition assumes that the motion for reconsideration of new trial is not pro forma. If the motion is pro forma, the period for filing of the petition is not interrupted. So be careful with the motion for reconsideration if allowed under the rules of this commissions. Because if the Page 26 of 37

12.13.2013 [232:10 min]

Jan. 14

commission finds that your motion is pro forma, then your period of 30 days may have lapsed when that resolution, when you receive the resolution denial of your motion for reconsideration from the commission concern. So you dont have the fortune to anymore to avail of review of final judgment of the COA or the COMELEC under Rule 64. Note that mere filing of the petition does not stand execution of the judgment to the commission concerned. The petitioner ought to secure or obtain a TRO or a writ of preliminary injunction from the Supreme Court to stay the execution of judgment. So this means that in your petition, for review of judgment of the COMELEC or COA. You must include there a portion for application for the issuance of TRO and or a writ of preliminary injunction. Or even do that by separate motion. If you fail, kung minsan sa thought that the mistakenly that the mere finding will not petition already states the running of the period to appeal. Na already states na, execution of the judgment, and realize later on na mali ka, provided you can immediately come up with that separate motion then do that, you file that immediately to the Supreme Court. 2:26:12 The Supreme Court has two options upon receipt of your petition. For review of judgment of COMELEC or COA. What the Supreme Court can deny your petition outright or 2, to order the respondent to file comment on the petition. Now, the Supreme Courtlets have a ten-minute break. 2:58:46 So now we got to Sensorary, Rule 65. A petition for Sensorary under Rule 65 is Special Civil Action it is not a mode of appeal. Remember it is not a mode of appeal it is an original action. It is an independent action. Independent from the principal action which resulted in the judgment or order complained of. In other words, Sensorary uner Rule 65 presupposes a case in the court below. So, while you file the Sensorary against the judge in the court below, dib a? it is independent of the case. That is why upon filing of your petition, the case before the RTC or the Sandigan Bayan, or the quasi judicial agency, will continue because your Sensorary with the Supreme Court is an original independent action. Now when can you have it affect the case before the lower court. Well you have to obtain a writ of preliminary injunction to stop the trial court from proceeding until after their petition for Sensorary is resolved.

3:00:36

Now, remember that a Sensorary petition is not intended to review the errors of judgment of the trial court. In Sensorary judicial review does not go as far the examine and assessed the evidence of the parties and weighing the formative value of those evidence of those pieces of evidence. Raising errors of judgment is proper only where, in an appeal. What then is Sensorary? Sensorary is a remedy for the correction of errors of jurisdiction. Not errors of judgment.

Page 27 of 37

12.13.2013 [232:10 min]

Jan. 14

Since the issue is jurisdiction. Sensorary will be directed against a internal order of the lower court prior to appeal from the judgment. You see here why sensorary under Rule 65 is an original and independent action that is not part of the trial that resulted to the revision of the judgment or order complained of or subject matter of the petition for sensorary. Now the rule is not an appeal to the Supreme Court in civil cases maybe taken only by petition for review or sensorary. Now this is not the sensorary under Rule 65. But under Rule 45. So where is sensorary is a mode of appeal it is not the sensorary under Rule 65 but sensorary under Rule 45. Any party desiring to appeal by sensorary for the judgment or final order or resolution of the court of appeals, the Sandigan Bayan or RTC or other court whenever authorize by law may file with the Supreme Court of the verified petition for review on sensorary and shall raise only questions of law. Note that petition for sensorary, prohibition et mandamus are not available under the rule on summary procedure. In a petition for a writ of amparo, and in a petition for a writ of habeas data. It is not also available in the small claims cases as provided for under section 14 G of administrative matter number 0887-SC, this is supreme court circular. As I mentioned, sensorary under Rule 65 is a remedy design to correct errors of jurisdiction not errors of judgment as when the trial court or body acted with grave abuse of discretion amounting to lack of jurisdiction. If the court has jurisdiction and in the process, committed an error in the exercise of this jurisdiction which error is only of judgment. Such error is not reviewable by sensorary under Rule 65 but only by ordinary appeal. You can assign it as an error on appeal. Sensorary is granted to keep an inferior court within the bounds of its jurisdiction or prevent it from committing such grave abuse of discretion amounting to lack or excess of jurisdiction. Always bear in mind that a question of jurisdiction is always a question of law. Ive been repeating that here. But never forget that the question of law in 65 or Rule 65 is limited only to issue of jurisdiction. Not to any other questions of law. Now why am I very particular of sensorary revision mandamus more on sensorary. Because this rule, Rule 65 is a rich source of litigation practice. Or to put it bluntly, a rich source of business for you as litigation lawyers. And not only that, as I said, the reason why Im really giving special attention to sensorary is because it gives you a very rich source of business. Lets call it business because you are naman into the practice of law not only because of the nobility but also because of the profitability of it. Di ba? Let me be more concrete about it. If you, a client goes to you and says, I have this case and I want you to file a complaint, syempre you will ask for initial fee or acceptance fee. Kami kasi, or ako as a matter of policy I do not ask for acceptance fee. I ask for initial fee. Whats the difference, acceptance fee is paid to you by merely accepting the case. To me its seems so arrogant to say, If may accept, you have to pay me acceptance fee. Say Page 28 of 37

12.13.2013 [232:10 min]

Jan. 14

hundred thousand. So the client is paying you for nothing but for except or accepting the case. It is justifiable in the circumstances because, usually lawyers operate on retailership. If you have several retail client and you accept a walk-in client, you acceptance of the retail of this walk-in client is to the prejudice of the retailer clients. Because yung retailer clients mo they pay you monthly, retailer. So you have to justify your asking for acceptance fee. Parang good will money yan eh. If you are to get a stall sa side, magbabayad ka ng good will money two million just to have a stall there. But that was what, 1995 pa yun. Siguro ngayon, mga five million na yun. Just to free to sell gold fish. Anyway, now so you charge say hundred thousand and accept the case however, if a client goes to you and tells you, gago yung abogado ko pinatatalo ko, puwede pa natin tong i-file sa appealant court kasi may nakabulong sa akin na puwedeng ipa-review daw ito, ganyan etc. because lower court and supreme court talaga naman evident ang difference niyan di ba? so malaki ang acceptance or initial fee mo kapag supreme court. See, if you accept say a lower court, a trial court case of one hundred thousand, pag pumapanhik yan sa supreme court you can require the initial fee of 500 thousand, or even a million. Because [inaudible, 3:09:44] ang case nito. I have to correct all the mistakes of your former lawyer. Di ba? magdadrama ka muna syempre. Alam mo I have handled so many cases ganito ang complexity nyan. It is actually the first time I am handling a case like this. So I really have to study it and require the deployment so much of my time. And the poor client naman because may reputation na magaling ka, say, okay attorney and the next time to bill your client is when? You can see tears of joy in his eyes. Di ba? lalo na pag file mo ng petition for [inaudible, 3:10:33] may kasama na TRO. Bakit ganito lang ang bill mo attorney? Di ba? you can give me premium. Magkano? Thats why you should not neglect this very important, a very lucrative provision. This remedy given to you by the rules of court. Sensorary. Kasi ganito ang complaint, ganyan kakapal, sensorary ganyan kakapal eh. Kasi i-annex mo lahat ng mga kuwan dib a? ang problema ngayon is that, under the new rules may electronic filing na. tapos maglalagay pa ng CD, buwisit na yan. Required ka after filing yung hard copy to file a, to submit and then simultaneously only 24 hours lang yata the CD or something or if you want you send by email PDF formats, sabi ko bakit pinahihirapan tayo niyan? Thats why I think I should argue that its unconstitutional laws. Kawawa yung mga nasa probinsya ano because wala silang computer. And then theres circular within six months or something parang voluntary, after six months from effectivity of that circular mandatory na. eh wala kang computer. Patay ka na no? so ganyan ginagawa sa atin ng Supreme court. Talagang, ayaw ata nila magtabaho eh. As I said, sensorary is one of the lucrative remedies that you can avail of for your client. Well its not lucrative for your client but its lucrative for you which is what really matters di ba? Okay. You will recall that other B.P. 129 the Supreme court is vested with original jurisdiction to try petitions for sensorary revision mandamus, co- warranto and habeas corpus. Under B.P. 129 the Court of Appeals is also vested with similar jurisdiction. So is the RTCs. So, you will note that both the Constitution and B.P. 129 they grant these the Page 29 of 37

3:11:48

12.13.2013 [232:10 min]

Jan. 14

courts, SC, supreme court, Court of Appeals and RTC original jurisdiction over these cases. Which means that effectively a petition is given the choice of either going directly to Supreme Court or the Court of Appeals or the RTC because these courts exercise original jurisdiction over these cases. And there does not appear in exclusivity among these courts. But note that such citation of case only as long as the petition has not yet been filed. Why? Well, before that. Thats why as I said a while ago, some legal commentator or some comment, authors of law books, say that there is concurrence of jurisdiction. Among these three courts. But you will note again that again, B.P. 129 does not use the word concurrent and what this authors to make such statement is the fact that the law and the Constitution vest these courts with the same authority to take of this cases. But anyone of them has authority to try this cases but and it is a big BUT dont be mislead. As I said a while ago because while theoretically a petitioner is given the choice in the matter of which court to file the petition. This choice is actually limited by as I said, and this is contained in Rule 65 the principle of hierarchy of the courts. So always, youll be encountering this principle of hierarchy of the courts. Because actually this principle provides order. In the way parties or litigants avail of legal remedies. And part of the purposes of the rules of court is provide orderly administration of justice. Alright, now as I said this is contained in the Section 4 that if the petition released to an act or omission of the municipal or metropolitan trial court over a corporation of court or a person, it should be following the RTC exercising jurisdiction over the territorial area as defined by the Supreme Court. The area is actually defined in B.P.129, the judiciary act. The early section. If a petition involves an act of omission of Regional Trial Court or quasi judicial agency unless otherwise provided by law or the rules. The petition shall be filed with and cognizable by the Court of Appeals. Now, what makes sensorary provision mandamus special civila actions? Or what procedural rules in Rule 65 that are not applicable to ordinary civil actions. One thing that makes the petition under Rule 65 special civil action is that the rule expressively allows the court to dismiss the petition outright. You will recall that a complaint was once filed with the RTC within an ordinary civil action the court does have the jurisdiction to dismiss it. But in sensorary the discretion is with the court which can dismiss the petition outright. And this is like in declaratory relief. We noted a while ago. Now you will read that Rule 65 says that if the petition is not sufficient in form and substance the court can dismiss the petition outright. an again this petition is not available in ordinary civil actions. And how is jurisdiction acquired over the person respondent under the Rule 65. And we already discuss this a while ago, it is not thru summons but thru an order by the appellant court requiring the respondent to file comment and a motion to dismiss. We also note a while ago that the three remedies sensorary revision mandamus do not always go together in a single petition. These are distinct and different civil actions so there could be as I said, petition for sensorary without revision. Revision without sensorary, sensorary without mandamus. There could be a petition for mandamus without sensorary revision.

Page 30 of 37

12.13.2013 [232:10 min]

Jan. 14

Mandamus suit is proper to compel the GSIS to continue paying respondents monthly pension because its payment is ministerial for the GSIS to do so. Now, before the advent of new rule sensorary and revision were solely to assail or to challenge the determinant court to orders. Again, now they can already include final orders and judgment by virtue of Rule 41. Now, we also noted that under Rule 65, sensorary always involves a private party. Which is the respondent in his favor to the order of judgment of the lower court was rendered. Of course, there is always a public respondent and it is the court or quasi judicial body that render the judgment or order being assailed or questioned in the petition. Question is, may the trial court or the judge as the public respondent be held liable for damages in the sensorary petition under Rule 65 or even revision? Well you will note that in sensorary provisional relief under Rule 65, nothing is mentioned about the propriety of awarding damages, unlike in a petition for mandamus. The rule only speaks of cost that maybe awarded in the proceedings. According to the Supreme Court, the silence of Section 1 and 2 of Rule 65 as to the propriety of awarded damages does not mean and we have noted this earlier that such damages cannot be awarded. But again, dont think that such possibility is by virtue of expressed provision of rules in 65. It is only by Supreme Court decision. Now, I may sound like a broken record but it is important that you should not neglect keeping in mind that mere filing of the petition under rule 65 does not stop the trial court or tribunal from continuing the case inquiry. You need to apply for obtaining a TRO or a writ of preliminary injunction the uplift court with whom to file the petition. And getting that TRO or petition, or a writ of preliminary injunction, makes your client really happy with you. And your client may remark he did not make a mistake in getting your services. And of course thats invitation already for you to bid. We got to co-warrantor and you refer to Rule 66. What does co-warrantor mean? Well, it literally means by what authority? Is a question mark. And the object is to determine precisely that authority. Or the right of a person to the use of exercise of a franchisor office and dont forget this, to oust the holder from its enjoyment if his claim is not well founded. Or if he has forfeited his right to enjoy the office. Under the rules, co-warrantor is a special civic action commenced by a verified petition against the following: a. The person who use resource of public office or a franchise or an office in a corporation created by authority of law. b. A public officer who performs an act instituting forfeiture of public office. And, or an c. Association of persons which acts as a corporation within the Philippines without being legally incorporated or without lawful authority to do so. So you cannot pretend to be a corporation when you are not. What makes a co-warrantor a special civil action? Well the important feature in fact the most important feature of co-warrantor, which distinguishes it from ordinary civil action is that if it is one proceeding which pirates the rule on its treating cause of action. Because the rules expressly allow petitioner in a co-warrantor proceeding to split this Page 31 of 37

3:21:02

12.13.2013 [232:10 min]

Jan. 14

course of action. And there is no sanction against it. Because it is the rule. Why is that? It is because petition for co-warrantor is designed to first determine who between the contestants is entitled to the office either corporate or public office and then second, once the court has resolved that the petitioner or plaintiff is entitled to the office and a judgment becomes final and executor for the petitioner or plaintiff to file a subsequent complaint for recovery of damages arising from the usurpation of that office. Sa co-warrantor may damages eh. Now if you look at it, it is really uplift case of splitting course of action. But it is allowed by the rules. In fact the rules say that the independent and separate action for damages could be filed within a period of one year from the finality of the decision concerning the holding of office in favor of the winning party. Another feature is that the court is given the prerogative to reduce the period for pleading. Ibang klase ito. Normally, in ordinary civil actions appeal to respond to be extended. So period of filing answer 15 days. Now on the 15th day you can file an extension. Or the day before the expiration of filing the extension. In co-warrantor, the reverse applies. Because the court is authorize to reduce the period within the respondent could file his answer to the petition. This is not usual because period to plead are usually extendable. In fact in ordinary civil actions, courts are nto authorized to reduce periods fixed by the rules. So if the rules say 15 days, the court cannot say ten or five. Because a right was given cannot just be withdrawn. Unless it is done by the one who made the rule. So if youre in a court youre a lower court judge, you did not make the rule na 15 days. You cannot reduce that. Otherwise you can be disciplined by the Supreme Court. Last but not the least. There is nothing in Rule 66 about the application of principle of hierarchy of the courts. So the supreme court says it is covered so on to there is concurrence of jurisdiction among the Supreme Court, CA and RTC a petitioner not given must choice just to comply with the hierarchy of courts principle mentioned in Section 4 Rule 65. We go to expropriation. 3:26:38 It is also a resource of legal business. And that also requires you use of imagination. Of course, it is not everyday that the government expropriates private property. Di ba? its not everyday. So if you are engaged by your client because his land is being expropriated by government, this is where, first you should be happy. Ikaw ang kinuha eh. Second, this is where really you can apply your imagination. I will show you how. Well, expropriation is a special civil action that implements the power of eminent domain of the state, eminent domain. Everything belongs to the State. So even if it is titled as a private property, by exercise the power of eminent domain, the government can take that property from you. The power of eminent domain as you know in your political law, with regard to Constitutional law. Together with police power, power of taxation, is one of the adherent powers of the State. Correct? What is the power of eminent domain? Page 32 of 37

12.13.2013 [232:10 min]

Jan. 14

Well, it is the right and authority of the State as sovereign to take private property for public purpose. Or public use, upon observance of due process and payment of just compensation. So, the taking cannot just be without proper notice to you. You are the owner. Otherwise it becomes confiscation. And then you have to be paid for it. Just compensation. Now, Who has jurisdiction over expropriation? Jurisdiction in expropriation cases is exclusive with the RTC. So you all know that when a property to be expropriate is a piece of land, there is no question that the expropriation proceeding is a real action. Land eh. So real action. For action in rem. Now, several questions has been raised up to the jurisdiction of the inferior court. Court is expanded in order for them try cases of action. The indicatorya or action probisiana depending on the assess value of the property. So is the issue was raised in one case. Where the expropriation proceeding was filed with the RTC and the assessed value of the property was less than twenty thousand pesos. The RTC applying them thru the amendment of Batas Pambansa 129 rules that the assessed value the land was less than twenty thousand pesos the jurisdiction was vested in the inferior court. Gago yung RTC binitawan niya yung jurisdiction. Well so napunta sa supreme court yung kaso niya, sabi ng supreme court dun sa RTC gago ka talaga, mali sabi niya. So ni-reverse ng RTC, sabi ng supreme court, in a less propriation for a piece of land the issue involve is one that is not capable of pecuniary estimation. And concluded that jurisdiction lies exclusively with the RTC. This is so because expropriation de corp before it rules on the issue of just compensation must first rule on the threshold issue of whether or not the plaintiff has the right to expropriate. And that issue is what, in capable of pecuniary estimation. Di ba nalaman natin kangina na that where a case involves a claim that is not capable of pecuniary estimation the jurisdiction is exclusive with the regional trial court. Because expropriation consists of several stages, di lang isang unilinial case yan. May mga threshold question and then may subsequent question. And you will know later the ruling of the court initial this stages is a appealable. Appealable. So nag-rule ang court, it is the expropriating agency has the right to expropriate, that ruling of the court is appealable. Because it is final ruling. Now, but am doing ahead of myself. Now, only once this threshold issue is resolved or decided by the court. Would the court go into the other principal issue. And this is the issue of just compensation. Which is related now to the value of the property. So regardless of the value of the property, real or personal, that this is subject for expropriation as expropriation case will always be cognizable exclusively by the RTC. Why is expropriation is special civil action? Expropriation is special civil action because unlike ordinary civil actions it consists of two stages. As I stated a while ago, the first stage is the determination of the authority or the right of the plaintiff to expropriate which includes an inquiry into the propriety of the expropriation its necessity and public purpose. And which stage will end in the issuance of an order of expropriation if the court finds for the plaintiff or the dismissal of the Page 33 of 37

3:29:59

12.13.2013 [232:10 min]

Jan. 14

complaint if it is otherwise. And Number two, the second stage is the determination of just compensation thru the court appointed commissioners. Thru court appointed commissioners. So, you will notice immediately that expropriation involves multiple appeals. Because it is not unilinial. But stages. Now since expropriation proceedings are divided into two stages, the decision in the first stage is a final order. And therefore appealable. The decision as to just compensation is another final order, and therefore also appealable. So expropriation is one proceeding with the rules allow multiple appeals to be taken in one the same proceeding. Which is different appeals on an ordinary civil action. In multiple appeals, the appeal period is extended to 30 days. Because of another requirement and you all know of that requirement, the submission of record on appeal. It is unlike in ordinary civil action, where the appeal period is usually only 15 days from receipt of the decision or final order and theres no need to file record on appeal.

3:35:00

Before I go to the next facets of expropriation Ill discuss with you this court appointed commissioners and why it is that expropriation can be lucrative. I have this involves a case that I know. The National Power Corporation, because alam mo naman NPC di ba? they put up this lines, by-loans, lines that convey power from one point to another. So they expropriate for purposes of cooking up this pilots. In one such case, my client owns something like 97 hectares and so its a huge part of land, there were several pilots to be that could pass through it. It could have to be constructed so they had to expropriate several areas within the property. When the NPC filed a petition for expropriation, it said that the value of the property is only 100 pesos per square meters because it is an agricultural land. Discussed by the agriculture, so the value of the property or the price fee for expropriating the pieces of property effected by the xpropriation, a tag-100 pesos lang yata. So, what we did there was, we questioned the classification of the property as agricultural, because on that property we have a seminary. And therefore the property Is devoted to educational use.

3:37:30.1

And after the determination by the court that the expropriation was proper, what we did was to ask for the appointment of the commissioners. A final of three commissioners. And the when you constitute the panel you can exercise your right to [inaudible, 3:37:54] What we did first is to classify the properties from agricultural to industrial so immediately the value went up from100 pesos to something like 1000 pesos. Now because of that reclassification and confirmed by the panel of commissioners, the property price kasi ang unang computation ng NPC, our client was entitle to something like 20 million. With that reclassification umabot yata ng 80 million. Oaky. So, the lawyers fee went up. Because of what they did. And because of that the NPC negotiate with us, puwede bang babaan? Sabi namin, din a puwede because covered na ng report ng commissioner and then we bulong to the judge i-approve na. so inaprub niya agad yung evaluation of the property. And then the decision became final. So we were executing na, against the NPC. So it took quite some time. Sabi naming now it become final and

Page 34 of 37

12.13.2013 [232:10 min]

Jan. 14

3:40:04.7

executor you pay interest. Pumayag sila, 60% daw. So I was not yet consulted at that point. Sabi nga, puwede nay an 6 percent. Later on I was asked tama ba yung 6% interest? Sabi ko no, it should be 12 from the date of finality of the decision. So with the ways with NPC, sabi ng NPC, bayaran kaw na namain kaagad huwag mo na kasi babalik na naman kami sa board, kukuha ng approval. Sabi ng kliyente ko sige bayaran mo na. So we got a good price. So, dont treat expropriation like, you seldom its a very rare kind of remedy that you would avail of, that you would encounter in your practice like its not important. Because once you handle one, it can really be lucrative for you. Okay? So you can bill more. And that is really the reason why we are lawyers. Okay we continue. Expropriation is one civil action that is not govern by summary provision. Although there are prohibited pleadings. You encounter prohibited pleadings is usually summary procedure like unlawful detenant or forcible entry cases. In expropriation proceedings although he procedure is not summary, there are prohibited for pleadings such as counter claims, cross claim or third party complaint. We also follow that rule that if the defendant does not file answer, he may not be declared in default. There can be no default sa expropriation. But even when so declare in default, he is still allowed to participate in the trial. By presenting [inaudible, 3:41:51] by the amount of compensation he may serve in the distribution of the award. So, kahit na ma-default, actually there is no sense declaring the defendant in default. Because the default will not [inaudible, 3:42:80] of ownership of the property entitlement for just compensation. Because just compensation is a recognition of ownership. Thats the reason why yo u are being paid just compensation, because you are owner. So it will be crazy on the part of the government agency to have you declare in default, because you do not really used to your standing in court. Anytime you can, before final judgment anyway, you can intervene and appeal, not just intervene, but participate in the pleading and show to the court that the assessment or the evaluation is wrong. And the court would always depending on how concessive you can get, listen to you. Because you can also question the evaluation made by the panel of commissioners. You can also ask the panel of commissioners their place, because they are biased all of them are appointees of or recommendees of the government agency that file for expropriation. Now, you should also note another feature of expropriation, that distinguishes it from ordinary civil action the matter of having a trial by commissioners. In ordinary civil actions, trial by commissioners is discretionary on the part of the court as provided in the Rule 32. If you are a party in an ordinary civil action and you feel like there is a need for the court to appoint a commissioners or a panel of commissioners to hear the case because it involves special expertise. Then you file that motion and the court may agree with you and appoint a panel of commissioners to hear and decide and submit its report on that matter that you wanted the commissioners to resolve.

Page 35 of 37

12.13.2013 [232:10 min]

Jan. 14

In expropriation proceeding, trial by commissioners is mandatory. The court cannot ignore the requirement of commissioners must be appointed for the purpose of determining just compensation. The appointment of commissioners in expropriation is an integral part of the procedure. Well, there is another special action where participation of commissioners is mandatory and that is in an action for partition. May the defendant in expropriation case who has accepted the payment by plaintiff in the concept of just compensation is still assailed of validity and propriety of expropriation. Suppose, you will understand this better. This example. Suppose the defendant in an expropriation proceeding, accepts the payment offered by the plaintiff and he accepted the payment in the concept of just compensation. May he still assailed the validity of the expropriation? The answer is YES. The Supreme court says there is nothing that prevents the defendant from elevating on appeal in so far in matter of validity and propriety of expropriation is raised. Even when he has already accepted the money offered by the plaintiff and he received the amount in the concept of just compensation. What is the reason for this? Well the reason for this lies to the fact that the issue of propriety validity of expropriation is separate and distinct from the issue of just compensation. Di ba ang tanong, stages yun? Determination of propriety and validity of expropriation, or and the second stage is determination of just compensation. Okay. There is a 2009 decision of the Supreme court. And this is a Eusebio versus Ruiz TR No. 162474 October 13 2009. Well in that case the Supreme Court held that in action for recovery of property for payment of just compensation over property taken by the government without executing expropriation proceedings. The trial court cannot award just compensation without following the procedure lay down by Section 5 and Section 6 of Rule 67 regarding the appointment of non more than three commissioners. You need to compare this with an earlier Supreme court ruling. And that is Republic of the Philippines versus Court of Appeals, TR No. 147245 March 31, 2005. May four years difference yan no. where the Supreme Court have that the RTC may in action for the recovery of possession of property taken by the government without benefit of expropriation proceedings, award just compensation since the government wait the procedure in Rule 67. When it violated the procedural requirements. I submit that the 2005 ruling is the ruling case law. Since the decision of a division can be modified or reversed only by the Supreme Court en banc pursuant to Section 4, 3 Article 7 of the Constitution. So both of these are division decisions, they conflict with each other. The question is, which should prevail? Note that when the trial court, as fully and finally resolved, all conceivable issues in the complaint for expropriation when it fixed the just compensation for the dangling area. Hence there is no need for NAPOCOR to file a record on appeal because the lineal record could already be send to the uplift court in the period of 15 or 30 days. So yung 30 days only applies where the record on appeal has to be filed but it is 15 days if there is no record on appeal to file. Also note that under the 1964 rules, the defendant Page 36 of 37

12.13.2013 [232:10 min]

Jan. 14

in an expropriation case may file a motion to dismiss under the 1997 rules of procedure, civil procedure, the defendant may no longer file a motion to dismiss any objections of the defendant may have to the taking of his property must be set for in an answer. so that covers expropriation. 3:49:56 When do we meet next? 3, na ba? Actually we will cover this immediately, the ristante, the balance. Because sa January 3 under our outline, five rules na. 72 and 77. So we start from 68 up to 77. So we meet on the 3rd. You think you are learning anything? So lets call it a night. 3:52:10:6 END OF TRANSCRTIPTION

Page 37 of 37