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CERTIORARI discretionary function of the prosecutor already

Directed becomes a ministerial.


against an
act. But now, say, there is no probable cause based
Purpose: To Purpose: To Purpose: To on the investigation of the fiscal, can
correct an prevent the compel mandamus lie against the fiscal? NO. It is
act commission discretionary on the part of the fiscal.
or
When you file petition for certiorari, you file
continuance
of an act. prohibition too. Because it is so broad that it
Jurisprudenc includes undoing of an act.
e has it that OCAMPO vs ENRIQUEZ CASE: issue is whether
prohibition
marcos shall be buried in the libingan ng mga
reaches the
bayani. The petitioners combined certiorari,
prevention of
prohibition and mandamus. Because as far as
an act and
undoing of an petitioners are concerned, there was grve abuse
act. of discretion on the
This pertains It pertains Purely part of the officer of AFP in interpreting that
to both to ministerial
Marcos is listed as hero. Prohibition, to prohibit
discretionary discretionary act or acts.
the burial or endowment of the body.
acts. and
ministerial Ministerial, to compel the armed forces of the
functions. Philippines to perform the duty not to include
Judicial and Judicial, Ministerial marcos in the libingan ng mga bayajni because
Quasi Judicial Quasi judicial functions. it is mandated that only thse who died for the
Functions and service shall be buried in the libingan ng mga
ministerial bayani.
functions.
SC struck down the petititon for the reason that
the petitioners has no legal standing the case.
When the case has far reaching implication, it is The SC did not meet head on the issue. Yet it
no longer declaratory relief, but prohibition. went to the issue on legal standing. It was a
procedural misstep. But as to the queston
During PI, there are 5 respondents subject to
regarding you can combine the 3, the answer is
investigation. All of them are the investigating
YES.
fiscal, should be indicted. However, only
reasons known handling the prosecutor of the Certiorari against the record. Prohibition to
case, he dropped one. Although as a rule, stop. And mandamus to compel.
exercise of the fiscal is purely discretionary but
ANOTHER TOPIC: can you combine certiorari
in this situation, considering that there is
and habeas corpus? Yes. As far as certiorari in
probable cause, yet he dropped A, so the
concerned, it is limited in scope and narrow in
remedy is mandamus. This is intented to
character and a high prerogative writ that can
compel an act mandated by the law. He can be
be issued only exercising discretion. How?
compelled by mandamus because there is
Certiorari reaches the record to determine
already finding of porbable cause. So the

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whether there is GAD on the part of the court, extraordinary remedy. Annulment of judgement
tribunal while Habeas corpus reach the body. and final order. The only word here is
petitioner, but even a non-party to the case can
Case of an inmate. As far as the law is
file a petition for the annulment of judgement.
concerned, he served full time as far as jail time
The ground is extrinsic fraud. For example, his
is concerned. In spite of that he was not
property was included in the court and he was
released by the bureau of correction. What is
deprived of the enjoyment of the property.
the proper remedy? Certiorari and habeas
Question: what is the proper remedy in the
corpus. Certiorari in a sense that there is GAD in
particular situation where the case is already
withholding the release of the person and
final and executory? You cannot anymore
habeas corpus as the fastest relief in illegal
intervene since it is already final and executory.
detention or illegal confinement. Even if it was
So the proper remedy is rule 47 and not
illegal in the first instance, it became illegal by
certiorari. There are two grounds in rule 47:
the continuous detention of the person even
extrinsic fraud and lack of jurisdiction.
after service full time.
AGAINST TRIBUNAL, BOARD OR OFFICER
CERTIORARI:
exercising judicial or quasi judicial functions.
Anything you need to know is in section 1, rule
Now, when it comes to judicial functions-
665.
involves interpretation of law and legal rights of
It is an extraordinary remedy, an independent parties.
action, filed by the aggrieved person.
Quasi judicial –determination of rigts and
EXTRAORDINARY REMEDY because it is obligations of the parties in admin case.
considered a high prerogative writ. Only issued
when there is showing of GAD. It cannot be
asked anytime. For example: Defendant filed WHEN THERE IS NO APPEAL, PLAIN, SPEEDY
MTD on ground of failure to state cause of AND ADEQUATE REMEDY IN THE ORDINARY
action. The court denied it. What is the COURSSE OF LAW- when there is still an
characteristic of denial? A mere interlocutory adequate remedy, do not avail certiorari. When
order. Can you avail certiorari? GR: No. because remedy of appeal is still available, do not file
you can still file an answer. But if there is certiorari.
showing that the judge committed GAD in
Certiorari is not a substitute for lost appeal.
denying the MTD in a sense that it was already
Why? Because it presupposes that there is no
clear that the plaintiff is not a party in interest.
more appeal, plain, speedy and adequate
Question is what is the proper remedy to put
remedy in the ordinary course of law.
the court within the bounds of the jurisdiction?
RULE 65. You have to exhaustion of admin remedy or
doctrine of prior resort. Before you proceed to
AGGRIEVED PERSON- aggrieved. Whom do you
judicial proceeding, you exhaust admin remedy
consider aggrieved person? It means that he is a
first.
party in the trial court. In other words, stranger
is not allowed to file a petition for certiorari. SC Office of the chief prosecutor. Secretary of
interpreted it as a person who is a party in the justice, when there is death,new and material
case or In the trial court and not just anybody., issues, issue of prescription, you have to office
now compare it with rule 47, it is also an of the president.

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QUESTION: why do we consider administrative They always attack of the SC when the SC try to
remedy? interpret the act of legislator or executive.In the
case ruled by SC: when the court tries to
Once it reaches the CA and SC, it is already a
mediate or allocate constitutional boundaries,
judicial proceeding. You cannot go directly to
the court is not upholding its superiority of the
CA without going to the Office of the president.
oter branches of govt but instead it is merely
But issues other than the three issues, you do upholding supremacy of the constitution.
not have to go to the office of the president
The origin or certiorari: it is a common law
after the secretary of justice. From the office of
origin. From England. Why? To check the acts of
chief prosecutor, you go to CA under rule 65
the inferior courts. To inspect and investigate
then SC under rule 45.
the records of the inferior court whether it
went beyond the jurisdiction.

ANNULING OR MODIFYING- section 1, when the


act of the board, tribunal or officer, either by
Error of judgement vs error of jurisdiction
lack of jurisdiction or in excess of jurisdiction.
Error of jurisdiction or lack of jurisdiction means
What do you understand by lack of jurisdiction
absence of or no jurisdiction, that is the court
should have not taken cognizance of the
petition or the action because the law does not
Excess of jurisdiction? vest it with jurisdiction over the subject matter.
Error of jurisdiction is correctible by certiorari
whilst error of judgement exists when court has
jurisdiction over the person and the subject
Grave abuse of discretion? matter, but decision on all other questions
arising in the case is but an exercise of such
jurisdiction. The errors which the court may
commit in the exercise of jurisdiction are merely
Is it important to copy the phrase “when there
errors of judgement which are the proper
is grave abuse of discretion amounting to lack
subject of an appeal.
or excess of jurisdiction? No. It is not fatal if the
same is not included. this phrase Is a mere
conclusion of law. What is important is the
allegation and proof that indeed there is grave ERROR OF JURISDICTION- correctible by
abuse of discretion. The burden of proof is with certiorari.
the petitioner. Or evidence. That indeed the ERROR IN THE EXERCISE OF JURISDICTION
judge acted outside the bounds of jurisdiction. (JUDGEMENT)- appeal.
HOW? By capricious, whimsical and in despotic
manner. Why? Because in essence the purpose As to the nature of certiorari: It is limited in
of certiorari is two fold: to keep the inferior scope and narrow in character.
court within the bounds of jurisdiction AND to Why limited? It is not the function of certiorari
relieve the parties of substanital injury by the to examine the evidence again.
arbitrary act of the inferior court. This is how
you should understand certiorari. Discuss: Certiorari is limited in scope and
narrow in character. Because it is only intended

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to check error in jurisdiction. It is narrow since When the prosecution was denied due process
in an original action for certiorari, the court is 2. When there is grave abuse of discretion.
not allowed to evidence again. That is not the
When the court granted the petition for
function of certiorari. The certiorari does not
certiorari, it nullified the case in SB hence it was
involve the reassessment of evidence and facts.
retried and this time, the SB convicted the 26
Whilst, when it comes to appeal, I will ask you, soldiers.
what is the effects of the appeal? As far as
Reason of the SC: no trial at all. It was a sham
criminal case is concerned, it throws open the
trial. It was scripted. (all the military personnel
entire case for review for misappreciation of
were acquitted. Even if we have the principle of
evidence. Same sa civil case, but there must be
double jeopardy, the exception are: 1. Denial of
an assignment of errors.precisely the remedy is
due process on the part of the prosecutor 2.
appeal because the evidence will again be
GAD)
calibrated by the court. In certiorari, the only
determination needed is whether the court is Take note: in the study of the civil pro, there are
within the bounds of its jurisdiction. 3 remedies when there is question of
jurisdiction.

Petition for relief-equitable remedy. Basis is


LACK OF JURISDICTION-absolute lack of
fraud, mistake and excusable negligence.
authority on the part of the court.
Annulment of judgement- extrinsic fraud and
EXCESS OF JURISDICTION-the court transcends
lack of jurisdiction
its power even if there is no statutory authority
to proceed with the case. Certiorari under rule 65.
Issue of jurisdiction can be raised even on the IMPT DISCUSSION: if you come to think of
first time of appeal. It cannot be waived. certiorari under rule 65, judicial and quasi
judicial. In prohibition, you prevent the
GRAVE ABUSE OF DISCRETION- when the court
commission of the act or continuance of act or
acted in a despotic, whimsical and in capricious
the undoing of an act, it is applicable to judicial,
manner by reason of passion, personal hostility.
quasi judicial and ministerial function. When
In our study of crim pro, we discussed the ypu talk of rule 65, it is very clear, judicial and
doctrine of acquittal rule. WHne the accused is quasi judicial function. But do not be confused
admitted, it will already be the end of it. But let on the expanded jurisdiction under art 8 of the
us take the case of galman vs pamaran. The 1987 consti and rule 65 sec 1. When it comes to
soldier involved in assassination of sen Aquino, rule 65 sec 1, the tribunal and board should
they were tried and acquitted by SB, then we perform judicial or quasi judicial function. But if
have the edsa revolution, the first thing they did you file a petition for cert invoking sec 1 art 8 of
after kay one of the interestin party filed the 1987 cosnti, that is another matter because
petition for certiorari claiming that the it is available even if the branch or
jurisdiction of acquittal were null and void. instrumentality of the govt even if they do not
Counsels for the military personnel objected exercise judicial or quasi judicial or ministerial
because you can no longer reopen a case functions.
already laid to rest. However, SC said that the
finality of acquittal rule is subject to 2 exc: 1.

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When it comes to sec 1 rule 65, make sure that When appeal is the remedy, appeal shoyld be
the board tribunal or officer is exercising judicial the remedy. When certiorari is the remedy, it
or quasi judicial function. should be the remedy.

But if it pertains to second aspect of judicial APPEAL from the RTC TO CA. rule 41: no appeal
power under article 8, even if the tribunal, shall be taken in the following items. Last par:
officer or board, even if they do not exercise the however, a proper party may avail of the
quasi judicial or judicial functions, or ministerial petition for certiorari under rule 65.
functions, as long as you anchor it in sec 1 par 2,
1st part- provides remedy of appeal
art 8, you can file for certiorari under the said
provision and NOT under sec 1 rule 65. 2nd part- it is very explicit. “No appeal may be
taken from the following. 1-8 (See codals!)”
As I said earlier, certiorari is narrow in scope
and limited in character. But there is an Again, it illustrates to us that appeal and
exception. When it comes to SC under sec 1 art certiorari are mutually exclusive.
8. As far as SC, they have broader reach than
rule 65. TAKE NOTE OF THE EXCEPTIONS: (although
certiorari is not remedy for lost appeal, the ff
That is why, we have the case of araullo vs are exceptions)
Aquino, regarding the development
acceleration program of PNOY. It was struck 1. In the broader interest of justice
down. The dbm is not exercising quasi judicial, 2. When there is grave abuse of discretion
judicial or ministerial function. But the certiorari 3. When the trial court went beyond its
prospered because of sec1 art 8 of the 1987 jurisdiction such that it proceeded in
consti. In essence, it can undo. If you come to capricious and whimsical manner
think of it, this right of the SC to undo an 4. In meritorious cases
administrative action is broader in scope than 5. Lack of due process
sec 1 rule 65. 6. In cases of extreme urgency

You might be ask, distinguish rule 65, section 1 Example: when public interest is involved.
and article 8, section 1 paragraph 2. Insert here: the distinction between petition for
AGAIN, the SC has a broader reach than rule 65, certiorari under rule 45 and rule 65.
section 1. In addition to, do not forget civ pro. If the denial
Another case, is the case of Villanueva vs JBC of the MTD is tained with GAD, proceed with
(screens applicant of the judiciary). SC said that certiorari under rule 65 as an exception to the
the JBC is not performing judicial,quasi judicial rule that certiorari. When MTQ is denied and it
or ministerial function because of the expanded is tainted with GAD. When there is writ of
judicial power of the SC under section 1, par 2, execution havbong been issued, in extreme
article 8 of the 1987 consti. cases, you can proceed with certiorari under
rule 65.
APPEAL and CERTIORARI are mutually
exclusive.They are not alternative, nor Denial for the Motion for New Trial, if is denied,
successive remedies. you cannot file rule 65, the remedy is appeal.
(NOTE: katong fresh period)

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Defendant was declared in default by the court. Can MR be dispensed with? Yes. Subject
What is the remedy for the order of default. Set to certain exceptions.prior to the filing
aside or petition for relief. qqueston: suppose of Petition for certiorari, you file MR.
that the defendant did not moved for setting you have 60 days from order of denial.
aside of denial. What if there is judgement by
reason of the order of default, what is the
remedy? The proper remedy is appeal from the One last thing, as you can see in your labor
judgement and also raise also the issue of subjects:
default.
From the LA> NLRC, mode of review, (do not
say mode of appeal) . from the NLRC, what is
the effect?can it be reviewed? Yes. >CA under
rule 65 as a mode of review. Then from CA, go
RULE 65 made mention of Certiorari, to SC, under rule 45 already. Findings of facts of
Prohibbition and Mandamus. It pertains only to NLRC who has expertise is given weight by the
the concept. What is the governing procedure? law.

You go to rule 46. The governing rule pertaining RD> Secretary of Labor> CA rule 65 because of
to actions for certiorari, prohibition and the doctrine of primary jurisdiction. St martin
mandamus. ORIGiNAL CASES. Certiorari, funeral homes vs nlrc.
prohibition and mandamus, quo warranto. That
Luzon development case- doctrine of
is why, when there will be situation where there
administrative remedies.
is procedural misstep, rule 46 is always cited.
From the ombudsman, finding of porbable
Recitations, rule 46 will be asked.
cause of ombudsman, direct resort to SC is
5 requisites for certiorari: allowed. Quizon vs Disierto case.

1. Tribunal, board or officer But in the Administrative aspect of the case.


2. Exercising quasi judicial or judicial From the OMB, appeal to CA under rule 43
function
3. No adequate, plain, speedy and
adequate remedy
4. Verified petition
5. There must be certificate against non
forum shopping. When it comes to CA, whether or not it is in aid
of its appellate jurisdiction.
The petition shall be accompanied with
the order sought to be reviewed plus For SB, the certiorari jurisdiction pertains to the
order of denial of MR. exercise of its appellate jurisdiction.

QUESTION: it is necessary to proceed or to go


Before you file Certiorari, MR is a directly to the supreme court, considering that
prerequisite. Give the court the chance they have concurring jurisdiction? No. this is
to rectify its error. because of the doctrine of hierarchy of courts.
Question: it is fatal? YES. Duh.

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When it comes to the interlocutory order, when instrumentality or branch of the government
the same is denied and tainted with grave can be subject of certiorari.
abuse, case is cognizable with the R
MERCEDITAS GUITTEREZ vs THE HOUSE OF
There are other cases to the effect wherein REPRESENTATIVES JUDICIARY COMMITTEE.
direct resort to the supreme court is allowed
Merceditas Guiterrez was the ombudsman. A
when matter is of transcendental importance,
complaint for impeachment was filed with the
matter is of extreme importance, direct resort
house of rep. There are 2 complaints. They
to SC is allowed. In several cases, the SC
questioned it, saying that it violates the right of
categorized that particular subject matter when
guiterrez. And under the rules on impeachment,
it has far reaching implication. They did not
it must be published. Considdering that it is not
consider it as declaratory relief but rather
published, Gutierrez, declined to be
prohibition.
investigated because for her it is null and void.
VILLANUEVA AND JBC A case is filed before the SC for certiorari and
prohibition. On the part of the house of rep, SC
When it comes to certiorari, and prohibition as
has no jurisdiction since it is purely an internal
far as the SC is concerned, the SC has expanded
affair in the house of rep invoking the co equal
and broader reach in so far as certiorari and
branch principle. SC: The constitutional bagaries
prohibition. Under rule 65, it is against tribunal,
committed by the house of rep judiciary
board or office exercising judicial or quasi-
committee is ripe for judicial determination
judicial functions. Other hand when it comes to
under the expanded concept of judicial power.
petition for prohibition, judicial quasi judicial or
This is to emphasize the fact that when it comes
ministerial functions. But in the case of
to certiorari and prohibition, SC has broader
Villanueva and araullo, considering that it is
reach and impact.
broader in scope and reach, though it do not
pertain to the exercise of judicial, quasi judicial
or ministerial, the court can exercise jurisdiction
You have 3 case:
under section 1 article 8 of the 1987 consti. In
fact it went further, it said that the SC can set Villanueva vs jbc
right, undo and restrain act which are
considered in excess of jurisdiction, lack of Araullo vs Aquino
jurisdiction or with grave abuse of jurisdiction Gutierrez vs house of rep
amounting to excess or lack of jurisdiction. –
TAKE NOTE OF THIS. THIS WILL COME OUT IN
THE BAR. RELAXATION OF RULES AS WRONG REMEDY.
There are 3.

There was a question, what happens now to the 1 the petitioner filed a case for petition for
political question case doctrine. Does the certiorari under rule 65 instead of rule 45.
expanded jurisdiction get away political Clearly it is a wrogn remedy. Certiorari under
question case doctrine? rule 65 is not a mode of appeal, when it comes
to rule 45 it is a mode of appeal. Note that
Some author says it delimits political question these two ar mutually exclusive. SO what shall
cases doctrine. Even act of agency, be the general rule? Dismiss.Referral to the

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other court does not hold water anymore. It certiorari and prohibition will nto arrest the
mentioned 3 exceptions. proceeding. The mere filing will not interrupt
the proceeding.. But there is a thing called
1. Petition for certiorari under rule 65 is
judicial courtesy. But do not confuse with the
filed within the reglementary period
doctrine of hierarchy of courts. If there is an
within which to file a petition for review
invocation of judicial courtesy, it will interrupt
on certiorari under rule 45. What is the
the proceeding.
period? Within 15 days, extendible for
15 periods for compelling reasons. In When such tribunal corporation board officer or
this case, the period in rul 65 is 60 days, any other person committed in the exercise of
in rule 45, it is 15 days. So bsag pa rule jurisdiction grave abuse of jurisdiction.
65 imo gifile, pwede sya ma consider as
Requisites for prohibition:
petition for review under rule 45 if u
filed it within the 15 day period. TRIBUNAL, CORPORATIOn, BOARD OR OFFICER
2. The petition should allege error of OR ANY PERSON in the exercise of judicial, quasi
judgement or averse error of judicial and ministerial
judgements and not error of
jurisdiction. Error of judgement COMMITTED GRAVE ABUSE OF DISCRETION
correctible by appeal, error of AMOUNTING TO LACK OR EXCESS OF
jurisdiction correctible by petition for JURISDICTION
certiorari. There is no appeal, plain speedy and adequate
3. There must be sufficient reason to remedy in the ordinary course of law.
justify the relaxation of the rules.

TAKE NOTE section 1 , 2 and 3. As far as


PROHIBITION mandamus is concerned, the word appeal is
omitted. Apply the phrase when it comes to
It is a preventive remedy. There must be
certiorari and prohibition. “There is no appeal,
TCBOP. It commands a tribunal, corporation,
plain speedy and adequate remedy in the
board, officer or any other person exercising
ordinary course of law.”
judicial, quasi judicial or ministerial function.

More often than not, certiorari and prohibition


are always together because certiorari reaches Overall, you will be asked: Discuss or summarize
the record. But it is not enough. If there is no in 3 sentences the function and significance of
prohibition, the subject matter which is in the prohibition.
question will proceed.
DO NOT FORGET: for the orderly administration
Araullo vs Rabi- it can undo acts. Certiorari of justice and prevent the strong arm of the law
reaches only the record. Prohibition has far from being utilize in an oppressive and
reaching implication. vindictive manner.
When it comes for prohibition, when a DISTINCTION BETWEEN INJUNCTION AND
petitioner files petition for prohibition, be sure, PROHIBITION: to restrain. There are only 3 thigs
incorporate a prayer of TRO or writ of to consider.
preliminary injunction. The mere filing of

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1. Pprohibtiion is directed to tribunal,
board officer,
2018 case: PNP CIDG vs VILLAFUERTE CASE
Injunction directed to party
Police superintended villafuerte. Sept 18, 2018.
2. As to ground, prohibition, there is grave A decision by the court of appeals, reversing the
abuse of discretion. penalty of dismissal by the ombudsman is
In so far as injunction, it doe s not immediately executory notwithstanding appeal
involve the jurisdiction of the coyrt. by the ombudsman to the higher court.
3. Prohibition is always a main action, it is
What is the mode of appeal from the
not a provisional remedy whilst
ombudsman?
injunction may be a main action or just
a provisional remedy. As far as the ombudsman is concerned,
When u file a petition for prohibition, you 2 aspect
accompany it with prayer for temporary
restraining order, in order to restrain the act Administrative- rule 43 to the CA
temporarily. The mere filing will not interrupt Criminal - rule 65 directly to the SC (quizon
the proceeding. case)
2 cases in prohibition. Again prohibition, case of Belmonte and case of
CASE OF POLICE SENIOR INSPECTOR BELMONTE villafuerte.
VS DEPUTY OMBUDSMAN FOR MILITARY AND MANDAMUS – utilize TCBOP when it comes to
THE OFFICE OF OMBUDSMAN 2016 (WILL BE mandamus. It is a command, directed to the
ASKED IN THE BAR) tribunal corporation board office or any person
THIS PERTAINS TO THE ORDER OF THE exercising ministerial functions to perform a
DISMISSAL ISSUED BY OMBUDSMAN AFTER particular duty specified by court or to compel a
INVESTIGATION IN THE ADMIN CASE WHERE ministerial duty
THE PENALTY OF DISMISSAL IS IMPOSED. WHAT IS THE NATURE AND PURPOSE OF
SC: the penalty imposed MANDAMUS? To compel the performance of
duties which are purely ministerial in nature.
In this case. The petitioner filed a petititon for this brings us to the distinction between
certiorari and prohibition to prohibit the discretionary and ministerial.
decision of the ombudsman from being
implemented. They said that their appeal to the
court will render moot and academic the case. MINISTERIAL- one performed by officer or
They said that their vested right is affected. public official by virtue of a mandate by the law.
Because what if the court of appeals, will You have no choice but to perform. In
reverse or set aside the decision dismissing the obedience to the mandate of the law.
petitioner, then can they still recover the
injuries sustained. Petition for prohibition DISCRETIONARY – power granted by law to an
cannot be availed because the decision of the officer to exercise discretionary act and
ombudsman is immediately executory and hampered by the conscience of the other.
moreover, the penalty is just in the nature of Remember the word “UNCONTROLLED” as to
preventive suspension pending appeal. how and when to perform it. If an officer is

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given that power, then certainly the act is Considering that It is purely ministerial on the
discretion. Walay magbuot niya. part of the judge, the refusal of the judge to
issue writ of execution can be compelled by
Take the case in so far as the function of the
mandamus.
public prosecutor is concerned, which is
discretionary whether to file the case or dismiss
the case. As a rule it cannot be controlled by
Another point which is important, mandamus is
mandamus. It is discretionary with the public
not available with regards to the contractual
prosecutor. If the public prosecutor believes
duties of the parties. What is the remedy?
that no crime is committed by A he cannot be
Action for specific performance but not
compelled by mandamus. However, after
mandamus.
inverstigation, it is clear that A participated in
the crime but he dropped A, question what Finally, continuing mandamus is applicable only
happens now? It is subject to petition for in environmental cases.
mandamus. Despite the finding of facts against
A, he dropped A. When it comes to certiorari prohibition and
mandamus, take note of this rule, MR is not a
mere technicality but mandatory and
jurisdictional.
There is another case, sharp international mktg
vs CA. this is how the SC decided the case: Another important consideration, normally in
While mandamus will not lie to control your petition, it should be accompanied with a
discretion, the writ of mandamus may be issued prayer for temporary restraining order or WPI
to compel the exercise of discretion but not the which provides for injunctive relief, the mere
discretion itself. filing of the petition does not interrupt the
course of the proceeding, example: You file a
motion to dismiss, then you file MR and then
EXHAUSTION OF ADMINISTRATIVE REMEDY IS dismiss. Now you filed certiorarim
IMPORTANT. You cannot avail mandamus if it
NOT
Whenevre you are encountered by the court,
you answer this “eternal gardens memorial park
The right must be a clear legal right and vs court of appeals” judicial courtesy. Not the
imperative duty when it comes to mandamus. same as doctrine of hierarchy of court. Absent
any restraining order or writ of preliminary
Take note:
injunction, it behooves upon the court to refrain
Rule 39 sec 1 will issue as a matter of right once from proceeding with the case because they
the judgement or final order becomes final and invoke judicial courtesy, due courtesy to the SC
executory. What is the significance of this case. should be observed by lower court even
It is purely ministerial on the part of the judge without restraining order or WPI. Justification of
once the judgement or final order has attained SC: the moment there is a petition for certiorari
finality. Failure on the part of the judge or the pending with the higher court, in this case,
judge refuses to issue writ of execution there is already a limitation.

That is why, before you apply the rule of thumb.


Mere filing does not interrupt absent WPI or

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temporary restraining order, however applying NOTE: do not utilize the petition for certiorari
the principle of judicial courtesy, even without and petition for review on certiorari
WPI or TRO, due courtesy to the highcourt, it simultaneously.
behooves upon the court to observe judicial
When it pertains to how and when the
courtesy.
judgement is to be made, judge cannot be
The SC applied judicial courtesy on case to case compelled by mandamus.
basis.
RECITS
Take note that under rule 65- it must be filed
If there is probable cause and he refuses to file,
within 60 days from the order of
that is already compellable by mandamus.
RATIONALE OF THE DOCTRINE OF JUDICIAL
How do you distinguish mandamus from quo
COURTESY
warranto? THE MAIN DIFFERENCE BETWEEN
THE TWO. Take note of this.

PHILIP AGUINALDO VS PRESIDENT BENIGNO III. The remedy is quo warranto- there is dispute to
Sc provided exceptions to the rule regarding the the title because of the ineligibility of the
60 day period. It is for us to find this 13 respondent.
instances. 60 day period is relaxed.
Mandamus- no dispute on the title.
1.Good faith

2. Special and Compelling circumstance

3. persuasive
WINSTON GARCIA was sued in his capacity as
Note further: when do you consider as acquire the general manager of the GSIS. This involves
jurisdiction over the person of the respondent? an anomalous bidding involving the
construction of GSIS Iloilo Branch. The GSIS
It is the order of the court to file comment
found out that de sorro was in gross neglect of
which is furnished by respondent, court
his duty because he released an reimbursement
acquires jurisdiction over the person of the
in favor of the highest bidder. In the
respondent. Outright dismissal is allowed under
procurement law, a notice to proceed is
the court.
required before mobilization. Moreover, based
ojn the investigation of COA, there was no
project at all hence a ghost project. Garcia was
Rule 46 – when it comes to original cases. included because it was him who signed the
Procedure under rule 56, most specifically, transfer of De sorro to another department and
section 1 provides that the jurisdiction by the the date of appointment was also the date the
SC, in consonance with section 1 artilce 8 of the check was signed.
1987 constitution, certiorari, prohibition,
mandamus and quo warranto. Proceed to How did the CA disposed of the issue? The CA in
section 2(a) all references to the CA applicable this case, said that de sorro was guilty of simple
also to the supreme court. neglect of his duty.

GR: criminal prosecution cannot be subject of The case reached the SC.
prohibition.

Anna Katrina Rodriguez


SC: de sorro is guilty of gross neglect. But as to 3. Urgent necessity of resolution of the
the determination whether there is grave abuse question
of discretion, (TO BE CONTINUED) 4. Deprived of due process
5. Issue raised is purely question of law.

Can you combine certiorari and prohibition in


one action? YES Period to file certiorari, prohibition and
mandamus- 60 days.
Will the mere filing of certiorari or prohibition
prevent the doing of an act which is the very Can it be extended? In the case of
subject? NO. There must be WPI or TRO to honorable Aguinaldo vs president benigno
arrest the proceedings before. But judicial court Aquino III. (Way klaro!)
may be invoked in case to case basis which
1. When there is persuasive
behooves the lower court from proceeding the
2. To relieve litigant
case as an act of the courtesy to the upper
3. Special and compelling reason.
court.
NULLUM TEMPUS
SIA- the case reached the SC. SC considered the
law firm as the aggrieved party although they You cannot invoke prescription against the
are not a party to the case, they are merely state.
representing one of the parties. It was
considered as aggrieved party, since the RTC
decision included the law firm as it was ordered QUO WARRANTO under RULE 66.
to return the money it received from the client.
(Pls include digest here defining aggrieved Quo warranto is a prerogative remedy. By what
party) authority is the literal meaning of quo warranto.
By what right are u holding the office.

Mandamus, there is no dispute as to the title,


but someone, without any ground assume the
position whilst quo wrranto, teher is dispute,
what is being litigated is the title and eligibility
A motion for reconsideration is necessary. It is of a person.
both mandatory and jurisdictional.
The voting is 8-6 in the case of sereno.
GR: a motion for reconsideration is necessary Dissenting opinion of carpio and leonen.
because you have to exhaust all the remedy and
to give the tribunal, office or body to rectify its Proceeding before the sc is abominable act.
mistake. According to leonen.

Exception: the instances where a motion for There are 2 voting in this case.This is the first
recon may be dismissed with are the ff: time that a chief justice was ousted by virtue by
quo warranto.
1. When the subject matter is perishable
2. Under circumstances where MR is PONENCIA as to the purpose . nature and
useless. objective of impeachment, tey are much
different with quo warranto. In fact they can be
filed simultaneously.

Anna Katrina Rodriguez


provides for the time frame for filing of quo
warranto. Within 1 year blablab.
It is a remedy and a prerogative remedy in a
sese that government calls upon any person One of the issues in the case of sereno is the
asking him by what authority are u occupying prescriptive period.
the office.
“within 1 year after the cause of the ouster
accrued”

SECTION 1. grounds “within 1 year after the entry of juudgement”—


damages.
It is a remedy to determine the right of person
to hold office, position right or act. The subjevt The supreme court came up with the guidelines
matter of quo warranto is office, position, with respect to this.
franchise, title or act.

In the same case of republic vs sereno:


WHAT DID THE SC SAY? Quo warranto is the
Origin of the quo warranto- it is of common law proper procedure when it pertains to
origin. This particular origin is also cited in the qualification of integrity and the commission of
case of sereno. the act or omission but the proceeding must
pertain to the commission of the act prior to or
The origin can be traced during time of king
at the time of the appointment is concerned.
Edward in England. He went to Palestine. When
he went back to England, he noticed the fall of Although they entertained against sereno, the
the England. Because of what his predecessor sc issued guidelines for future proceeding.
did to the nation. The predecessor was king
GUIDEPOST: it pertains to the commission of
henry III. He initiated a sort of investigation.
the act prior to or a the time of appointment.
That is why there is quo warranto. Upon his
return from Palestine, he noticed that the Lords Even if the issue is qualification of integrity
are so powerful that they already exercised of which is continuing one and it pertains to
ownership. That is why it slowly diminished situation wherein he was already appointed and
England because the land owned by England, the act or omission was done during, then quo
were obtained by the lord. The lord and barons warranto is no longer the remedy.
said that they were protected by magna carta
but then king Edward ordered conducted When it comes to quo warranto even against
investigation. He initiated the process of quo impeachable officer, it must be prior to or at the
warranto. He questioned each one the time of appointment bc if it pertains to
authority of the lord and the barons why they qualification of integrity which is continuing one
have the land. and it pertains to act or omission during his
incumbency, quo warranto is not anyore the
In the case of sereno, SC said that the quo remedy, he can be subject of impeachment
warranto is the proper remedy bc in the fist proceeding if it relate to impeachable offense,
place, serenoo is not eligible to hold the or administrative, criminal or civil.
position as chief justice. If atty f will be the
examiner, he will ask the portion which is the
important which provides that for the guidance
of the court, the bench and the jbc., which

Anna Katrina Rodriguez


The case of sereno, the Supreme court said that
the prescription do not lie against the 2. Prescription does not lie against the
government. governmtne.t
3. The supreme court said that there is no
Non filing of the SALN which is the issue here
forum shopping because the camp of
was brought to light or the transgression came
sereno said that there was forum
into life only at the time that there was the
shopping, sc said that no. why? Forum
impeachment proceeding before the house of
shopping involves res judicata, litis
rep justice committee,hence the filing of quo
pendentia or multiplicity of action or
waranto must be done within 1 year from the
suit. No forum shopping here because
filing with the house of rep justice committee.
the cause of action here is diff. one for
Further, office of the solgen argued that the violation which is ground for
prescription does not lie against the impeachment and when it comes to
government. Nullum teempus occurit pegi. quo warranto, the issue is whether
there is usurpation.

The next aspect that was tackled by the SC is


There are several substantive issues here: that according to the SC it is wrong for camp of
1. Whether or not sc has jurisdiction over sereno, that being an impeachable official, it is
petition for quo warranto. The answer the exclusive prerogative of the congress.
is yes. Art 8, sec 5(1) give them the According to SC, the two can co exist together.
authority to conduct quo warranto as Bahala nalang nan a impeachment, mu proceed
original action. gyapun sc and finally, when it comes to
According to justice leonen, that the commission of an act it must be done, prior to
original action should be taken together or at the time of the appointment. When it
with art 11, sec 2 and 3 regarding comes to the act or omission committed during
accountability of the officials but the hold of office, impeachment s the proper
brushed aside by SC because it saus remedy.
that as to the nature, origin and scope.
Impeachment is purely political in
natyre whereas quuo warrabnto is Rule 66:
judicial in nature , the second aspect, sc
1. Section 2 and 3.
ssaid that when it comes to IP, officer,
2. section 5. Section 2, when solgen must
or the public official who is subject of
commence an action for quo warranto.
the impeachment, you have the
When directed by the president.
grounds under the constitution, whilst
Another instance, upon initiation by
quo warranto pertain to the ineligibility
another one, whne the solgen has good
of the public official to occupy the
ground or reason to proceed with quo
position. Why? For failure to file the
warranto. Third aspect is when the
SALN.
private individual is allowed to
commence quo wrranto. As far as the
There was an issue whether there was a
third is concerned, take note that it is
violation of the co equal branch. The sc
an essential requisite to ask permission
said no, reiterated that impeachment is
from the court.
political and qw is judicial

Anna Katrina Rodriguez


Section3- it is not a matter of right to go to CANVASSING
court. You must ask the court for permission to Winner is proclaimed, if there is no order to
proceed. suspend proclamation issued
by the Commission in division or en banc.
Section 2. “must when directed by the Remedies after proclamation
president” A. Election protest – procedure to contest the
election or the return
of an elective official
When initiated by the individual. When it comes B. Quo warranto – procedure to prevent
to by individual. The essential requisites. 1. He assumption or unseat the proclaimed winner
on the ground of ineligibility or disloyalty to
must have a clear legal right to the position.
duly constituted authorities
Absent that clear legal right, he is not entitled
to the quo warranto as remedy.in fact the sc in
Atty Guji: The difference is if election protest,
one case, the casee of Aguinaldo, it said that the only one who can file it is the
even mere preferential right would not suffice losing candidate for the same position. If you
to proceed with the quo warranto because are a mere registered voter, file a quo warranto
what is required is the clear legal right. on the ground of ineligibility or disloyalty to
duly constituted authorities.
When it comes to office of the solgen, the
petition should be filed with the rtc manila. Remedies after proclamation, usually petition to
Although the rtc, ca and sc, direct resort to the nullify the proclamation pwede. But normally,
sc is allowed. Disregarding the hierarchy of the what you do is either election protest or quo
courts doctrine when it is of transcendental warranto. There are a lot of differences
importance. However, it does not negate the between an election protest and a quo
fact that it can be filed in rtc mnl. warranto. But by definition, ang inyu lang
timan-an the protestant will say its not you, its
Sereno case, direct resort to the sc is allowed. me. Kung quo warranto gani, its not you but I’m
When it comes to the rtc because if the quo not interested. That’s how you simplify that.
Now when you say Election contest. It now
warranto is brought by solgen, then it must be
included election protest and quo warranto.
with the rtc of manila city. Do not say metro
manila kay daghan nan a cities. (pertains to the Quo warranto in an elective office, the
jurisdiction and venue of the quo warranto) protestant do not replace the ineligible officer.
The case of sereno, it is like reading the He can ONLY recover from suit but definitely
cannot replace him. A second placer will always
remedial law.
be a second placer.
PROCEDURAL – there is an issue of intervention.
Res judicata. Litis pendentia. Forum shopping. Quo warranto in relation to appointive office-
Impeachment. court determines who has the right to hild the
office, the protestant is entitled to hold office.
Accoridng to the SC: utmost sereno is a de facto (Example: case sa katong central bank na
officer, color of authority. medical doctor thing)

EFFECT IF DISQUALIFICATION REMAINS


PENDING DURING

Anna Katrina Rodriguez


Eminent domain is an inherent power of the pastor which provides that even with the
state together with the police power and power advent of ra 7691 which gives MTC
of taxation. authority on actions involving title,
however, when it comes to expropriation
Are you aware with the consti provision proceeding, it remains to be an action
pertaining to expropriation specifically article 3, incapable of pecuniary estimation and
sec 9 which provides that no private property hence with the RTC.
shall be taken without just compensation. Does In so far as the venue is concerned, the
this particular provision gives state to venue is where the real property is situated
expropriate? No. the power of eminent domain being a real action.
need not any constitutional provision to be As to the parties, all parties should be
valid. What is its significance? A matter of impleaded. That is the rule. Indispensable
limitation. As far as section 9, Article 3 has party.
something to do with the limitation in what
would be an unlimited power. What about if it pertains to the property
So the limitation is that is intended for public owned by the co owners, while they are
use and public purpose, and for payment of just outside the country, the neighbor of the co
compensation. owners, took possession of the property.
Question:Is it necessary that the 5 of them
what is the basis of eminent domain. Why is the be impleaded? NO. they are only real
powr of eminent domain an inherent power of parties in interest.
the state? Basis is principle of sovereignty. Jus
regalia. No action or prohibition lies against the Meanwhile, in an expropriation proceeding,
Government on its act of expropriating. all co owners are considered as
indispensable parties and must be
There are two stages of expropriation: impleaded as defendant.
1. Determination of the authority of the
plaintiff to file the action for Another area of concern, when it comes to
expropriation eminent domain, expropriation, it involves
2. The propriety of its exercise. Multiple appeals. Whne it comes to
The second stage is the determination of multiple appeals, it presupposes several
the just compensation. orders or judgement and each of the order
is considered appealable.
As far as jurisdiction is concerned, it lies
with the regional trial court for being an In multiple appeal, what is required is the
action incapable of pecuniary estimation. record of appeal as compared to the notice
There was this confusion, why? Bc of the of appeal.
advent of the RA 7691 or the law expands
the jurisdiction of the MTC, does it follow What are considered final and appealable
that when it comes to expropriation order:
proceeding which is a real action, when the 1. Order of expropriation
value is less than 20,000. Others say that it The moment the court orders
is with the MTC since it can already hear expropriation, it is considered as final
actions involving title to property as long as order and hence appealable.
the value do not exceed 20,000. HOWEVER, 2. Order of just compensation. The momet
this confusion was already laid to rest by after considering the findings of the
the Supreme Court in the case of brgu san commissioner, payment of just
roque talisay cebu vs heirs of Francisco

Anna Katrina Rodriguez


compensation order is already a final government from expropriating it. That is why
and appealable order. naay mga invitation para sa price.
3. Judgement of expropriation.
These 3 are final and appealable. LGU expropriate, not by inherent power but by
legislative grant.
The moment that owner receives an order from When it comes to agrarian reform program, it is
the court regarding the authority of the plaintiff a form of expropriation.
to take possession of the property, that is If asked, discuss the nature of taking as far as
already final and appealable. That is why, a the agrarian reform program? It is a form of
mere notice of appeal will not ssuffice,what is expropriation. That is why there is an agrarian
required a record of appeal. court. This is pursuant to a valid law, RA 6657.
This is because, this is only one aspect of the The agrarian reform program. Inf act this was
expropriation hence the original record will considered by SC as the revolutionary taking by
remain in the lower court bc there is still the government, because it addressed the
something to be done.You still have the order taking of the tenant of the land holdings from
of just compensation and judgement pending the land owner. One of the earliest law passed
before the court. during the time of cory Aquino. This was already
declared as constitutional in the case of small
These are only the three considered as landowners association.
appealable and multiple appeal is allowed
under rule 67. What Is the character of the taking as far as
aagrarian reform program. It partakes the
The power of the local government unit to expropriation.
expropriate not as an inherent power but by The proper party is the land bank. The land
virtue of legislative grant. Considering that the bank will go to the special court to determine
state has inherent power to expropriate, just compensation. Section 9 is a limitation of
question: Does it mean that the local the power to expropriate. This is in compliance
government unit also has the power? NO. Thru with the due process clause.
delegation authority by virtue of legislative
grant. Section 19 RA 7160. You have the state, the local govt code, and ra
1. There must be a valid ordinance. 6657.
2. Payment of just compensation.
3. There must be valid and tender offer RECITATION
refused by the defendant that is why CONTENTS OF THE CLAIM:
the municipal govt fileed an action for See section 1 rule 67
expropriation
What if the land is leased to another person,
In line with this, when u come to think about it, will you include such lessee?
even if the state has the inherent power, this Yes. It has an interest over the property.
rule 67 as the procedural rule is only necessary
if the land owner is not willing to part with his Will it fall under section 9 under conflicting
property. If the land owner is willing (since he is claims?
given notice baya), do not talk about rule 67 Lessee has no claim of ownership.
anymore. Rule 67 is necessary when the land
owner is not willing to part with the property What happens if the expropriation pertains to
after the offer from the government. See, bsag the infrastructure of the government? Will
mubalibad sya, it cannot prevent the section 2 apply? NO.
What law will apply? RA 8974, section 4

Anna Katrina Rodriguez


the second stage which is the determination of
This particular law amended section 2 when it the just compensation?
comes to infrastructure projects of the
government. The procedure is under rule 67 As counsel of the defendant, don’t you find it
however when it comes to section 2 involvign important to notify the court of the
government infrastructure program, section 4 involvement of the client?
RA 8974 shall pertain. Section 2, assessed value. Yes. By filing an entry of appearance and
RA 8974, section 4, 100% of the value of the manifestation that there is no objection.
property sought to be expropriated.

What about if the expropriation involves city? It If there is an opposition and objection?
is the provision of the local government code Objections not alleged deemed waived, except
which shall apply. It says that the deposit must the determination of just compensation in
be atleast 15% based on the tax dec. Section 19, compliance with the due process. The court is
RA 7160. bound to determine just compensation.

Requisites for the immediate entry to the The order of expropriation is appealable, what
premises ssought to be expropriated. does it mean? What is the significance by the
Section 2, filing of the complaint, due nnotice to order of the court of expropriation? Declaring
the defendant, payment of the amount equal to the plaintiff as the lawful right to the property
the assessed value. sought to be expropriated.

How do you define just compensation?


What about if personal property is involved?
Court shall be provisionally determined by the Just compensation = assessed value +
court and later fixed by the court. consequential damages – consequential
damages

A MUST READ!!
EN BANC CASE : land bank of the There are 2 significant provisions which
Philippines vs DAR provides appointment of commissioner as
METRACO Teleghygenic services corporation. mandatory.
Under rule 67. Determination of just
You were hired as counsel of the defendant, compensation.
what steps are u going to take? Under rule 69. For purposes of partition.
S:File an answer within the date specified in the
summons. You have rule 32 under Rules on civil procedure.
Trial by commissioner. The word used is “may”.
Is the filing of answer necessary under all Even if the parties do not agree, but the court
circumstances? may come in.
S: it is not necessary under any and all
circumstances. When there is an opposition and But under rule 67 and rule 69, appointment of
objection only. commissioner is mandatory.

When there is no objection or opposition, as What are the duties of commissioner?


counsel of the defendant, what steps are u
going to take? S: As counsel of the land owner, To ascertain just compensation.
if no objection, advise client to push thru with

Anna Katrina Rodriguez


The reckoning period for the payment of just
compensation? From the time of the ACTUAL
taking of property, or filing of complaint The court can take consideration conflicting
whichever came first. claims and ownership between the parties. Is it
conclusive to parties? NO. under sec 9, court
How do you define time of taking: time wwhen can take into consideration conflicting claims
the land owner is deprived of the use and and ownership but this is only akin to an action
benefit of his property or at the time of the involving ejectment. Note that the court in
filing of the complaint or at the time the title is ejectment case such as forcible entry and
acquired by the State. unlawful detainer, the court can only render
provisional judgement with respect to the
Suppose, you have already the report of the ownership and this is true only when the
commissioner, of course, it has to be submitted ownership is interconnected and is necessary in
to the court. If you are the presiding judge of determining who has the better right to possess
RTC, what are ur options the moment that the the property.
report is brought before your sala?
There are 3: Republic of the Philippines vs Honorable Rosa
1. Accept and render udgement based on Samson-tatad 2013 case.
the report.
2. Set aside the report and appoint
another commissioner for further What are the rights the plaintiff after the
report of the facts. judgement?
3. Partly accept and partly set aside. See section 10.

Can you not recommit it back to the incumbent Suppose that the udgement is appealed with
commissioner? No. the requisites are: For cause the CA and the appellate court reversed the
shown, the judge may recommit the same to finding of the lower trial court (Since appellate
the commissioner for further report. court has found that the plaintiff has no right to
expropriate) what is the effect?
In that particular section, it states, they agreed. The court will order RESTORATION and
What happens if the parties “agreed”? Pay PAYMENT OF DAMAGES due to the defendant
attention to this, If they AGREED to the report, by reason of the deprivation of his property.
it is already akin to stipulation. And in the
event, that the landowner make subsequent Self study: 12, 13, 14.
appeal? Go directly under question of law by
rule 45. Note that the agreement is already Foreclosure is necessary. One of the remedies
binding to parties. of the creditor is to foreclose the property.
Why? Can he not appropriate the same
But if there is no agreement, you should not immediately?
bypass CA because it pertains to both questions No. why. Because of the prohibition against
of fact and law. You file notice of appeal with pactum commissorium. Under article 2088 of
the RTC and appeal to the CA. the civil code, creditor cannot appropriate the
thing by way of pledge or mortgage, any
What happens if the CA affirm the findings of agreement is null and void. Precisely, the
RTC? The findings of fact of the CA is final and remedy is foreclose.
conclusive to the SC such that the only area of
concern of the SC is whether the law is proper
hence the proper vehicle is rule 45.

Anna Katrina Rodriguez


Foreclosure may be judicial or extrajudicial survive? YES. Actions which survive. Can u still
foreclosure. When u say judicial foreclosure, it proceed with the dead mortagagor? NO. but
is governed by rule 68. note that he has an executor or administrator
of his estate.
Now, as to the choice of remedies, although
foreclosure is a remedy, that is NOT the only Rule 87.
remedy as far as the creditor is concerned. Remedies of the creditor against the decedent’s
1. Foreclosure of the real estate estate.
mortgage,either judicial or extrajudicial.
When can u proceed with extrajudicial Now, what is the first remedy.
foreclosure? Mortgageee can proceed
with extrajudicial foreclosure when 1. Abandon the security and file claim
there is agreement between mortgagor against the estate of the decedent.
and mortgagee.
2. Foreclose the mortgage
There is an administrative circular which Who will be the defendant? You the
provides for extrajudicial foreclosure. executor or administrator as the case
Administrative circular 99-10-05-0, august 7, may be.
2001. to the executive judge through the clerk
of court. This particular procedure will govern (NOTE: 3 actions survive death:
extrajudicial foreclosure. The creditor can recovery of personal or real property,
proceed when there is an agreement. foreclosure of lien thereon, action for
damages)
QUESTION: Can u still proceed with extrajudicial
foreclosure? Yes. Bc there is an agreement. 3. Rely on the mortgage alone.
Now you want to assail validity of the
agreement bc it is contract of adhesion? The The choice of one is the abandonment of other
creditor can invoke the fine print rule. remedies.

General Banking lAw. there is special provision These are the choice of remedies when it comes
pertaining to bank. to mortgagor is already deceased prior to
foreclosure.
Collection of sum of money with prayer for
preliminary attachment- one of the grounds for
attachment is when there is an action and the Rule 68 is already confined to real esttae
debtor is about to dispose the property. So the mortgage however it can be applied
creditor will have to move for attachment. suppletorily when it comes to chattel mortgage
in relation to chattel mortgage law.

FORECLOSURE=collection of sum with Chattel mortgage law.


ATTACHMENT=file an action with prayer for
RECEIVERSHIP Now, jurisdiction. You have the regional trial
court or the municipal trial court as the case
The remedies are not cumulative. may be. Under the expanded jurisdiction of
MTC, it can already action involving title to or
Another scenario, what happens if the possession of real property provided it do not
mortgagor is dead or prior to the foreclosure, exceed 20,000 and do not exceed 50,000 in
he died. What happens now? Will the action Metro Mnl.

Anna Katrina Rodriguez


VENUE- where the property is situated. The J-O-D
parties. Consider the debtor mortgagor.
Parties to consider Judgement of foreclosure or accounting is
DOT – 2 A considered final and appealable. Final and
Debtor mortgagor appealable order
Owner or person in actual possession or control
of the property Order
Transferee or grantee
Second mortgagee
Any person holding any title subordinate to the Deficiency judgement
mortgagee.
Section 2, 3 and 6
These people shall be included for the judicial
foreclosure. Payment or foreclosure sale.

When it comes to 2nd mortgagee, for example


and the junior encumbrance, do not forget Right of redemption when it comes to
proper and necessary parties. They are proper foreclose. Liberally construed in favor of the
and necessary parties. debtor.
Remembee even if the debtor mortgage the
property, who owns it? Debtor pursuant to right Proceed with section 2. As far as section 2 is
of ownership. The second mortgagee is called concerned, judgement involves payment and in
to the 2nd mortgagee. Why shoud they be the event that he cannot pay, proceed with
included? If they are not included, they can still foreclosure sale and then u will be having of
the equity of redemption. Take note that they public auction. Proof of notice of publication of
are not indispensable parties. They are sale is important and is jurisdictional.
considered tto be necessary parties and proper
parties. You have the period or equity of redemption.
nOt less than 90 days and not more than 120
2nd mortgagee and the junior encumbrancer is days after entry of judement. Period is
not an indispensable parties but remember mandatory and cannot be subject of agreement
section 8 rule 3 which provides for necessary by the parties.
parties.
Why? If they are not to be impleaded, they What happens when the debtor appeals the
remain to be unforeclosed equity of judgement. The period is suspended by the
redemption. appeal.

What happens now if there is residue? It will be Section 3. It provides for the sale of mortgaged
distributed to others, but the mortgagee is the property.
priority.
What happens when there is non payment?
Another example of multiple appeals. As far as Section 3 is ministerial duty of the court to
rule 68 is concerned, multiple appeals are proceed with foreclosure bc this a necessary
allowed. There are 3 orders. Appeal with consequence of the nonpayment of judgement
respect to particular subject matter is perfected debt.
upon approval of Record of appeal.

Anna Katrina Rodriguez


In fact if u will ask me, sir what happens if there
is non payment? Answer is section 3. It is purely He can proceed with writ of execution because
ministerial to the court. he is not a party to the case in the name of the
purchaser for the whole price or so much
When it comes to foreclosure sale, the creditor thereof.
has to file a motion. The court cannot moto
proprio issue an order for foreclosure. DO you NOTE: sereno. See group chat.
have to notify other party? No. it can be done
ex parte. Ex parte motion meaning without Equity of redemption vs right of redemption.
notice or without hearing to the other property.
What happens if the purchaser cannot recover
You have to consider 2 motion. the property in case of extrajudicial
Ex parte motion – when it comes to foreclosure. foreclosure? By filing an action for ejectment.

Let us oppose that a sale is made, there it this


confirmation of sale which is also an appealable
order. You have to file a motion for PARTITION
confirmation of sale. Motion with notice and
hearing is necessary. Partition is the process of segregation. Putting
an end to in divisiion. Article 1083 of the CC,
What is the difference? To give the debtor every co owner shall have a right to file an
opportunity to question the sale. Example: action for partition, unless the testator prohibit
inadequacy of price. partition but shall not exceed for 20 years. Take
note of the phrase anytime. This is important,
The debtor can very well object to the manner because no prescription shall run against
of sale. partition.

Recits: It is imprescriptible.
Who are junior encumbrancer?
How to proceed with the sale with all debt are Article 494 of the civil code.
not yet due.
Artilce 1083 of the civil code.
What if all the debts are not yet due?
Now, you have to correlate article 1063 and
article 494 of the civil code. It has 5 paragraphs.
You have the phrase “at anytime”. This is
Remedies of the purchaser. significant because in so far as prescription is
concerned, it cannot run against a co owner as
Section 31, section 32 and section 34 of rule 39. long.

Section 34 rule 39 provides for recovery of price When it comes to subject matter of the case,
if sale Is nOT effective. Real property, personal and mixed. When it
The purchaser may on motion, in the same comes to real property, it depends on the
action or in separate action recover from the assessed value as appearing in tax dec.
judgement obligee the price paid.
When it comes to venue, when it comes to real
The second remedy is on motion have the action, where the real property is situated.
jdugement revived.

Anna Katrina Rodriguez


When it comes to personal property, follow case of russel vs vestal pls. Katty, Naa ni listahan
general rules on venue. Where the plaintiff didto (dean largo notes)
resides or defendant resides at the election of
the plaintiff. Absence of proof to the notice.
What about if subject matter is combination of
both real and personal? U can institute the What happens if the defendant in their answer
action in the place where real property is will dispute or in other words invoke title over
situated or where the party resides at the the property, if u were the judge, what wll u
election reside. do? Dismiss the case? Or order partition?

Who are the plaintiff in the case? Co-owners. Do not dismiss. Instead proceed with the
Suppose that there are 5 co owners, is it case,the court will determine whether the
necessary that all the co owners be impleaded plaintiff is co owner or not.
in the case? YES. They are indispensable parties. In an action for partition, you have the stage
wher there will be determination whether co
Now, what about if recovery of property ownership exist, then after go to the partition.
belonging to co owner, as plaintiff, it is
necessary that all co owneers file a case against Court will confirm partition if the parties agree
defendant? to the partition. That is the ONLY role of the
court, nothing more.
2 stages for partition:
1. Determination of propriety of co On the other hand, if parties do not agree.
ownership- whether or not the plaintiff
is a co-owner of the property
Assign a commissioner- mandatory
Why is it necessary? If the plaintiff is
not a co owner, the court cannot Assuming court appoint commissioner , what
compel the defendant to proceed with are the duties of the commissioner?
the partition.. Court should take into
consideration first whether the plaintiff You have 3 commissioner, are they duty bound
is a party to the case. If facts as to inquire the ownership of property? NAAH.
appearing in the answer, clearly ndicate Their only role is to effect the partition of the
that plaintiff is not co owner, the court property. That is absoluute.
is bound to dismiss the case.
2. Assuming that the plaintiff is a co
owner, toether with the defendant, Moving forward, they already finished the
court may now proceed with partition. report. What are the actions that should be
Under article 494, prescription do not lie done by the court?
against a co heir, is there an exception to
this particular law? Section 7. rule 69
1. Accept and enter judgement
Prescription will run against the co owner, if the AND
co owner openly and adversely claimed Render judgement
ownership of the property en concepto de
dueno or in the concept of an owner. Judgement under rule 69 is an appealable
order.
Nullification of judicial foreclosure case - Rule 69 inovlves multiple judgement
incapable of pecuniary estimation. Read the 2. For further report

Anna Katrina Rodriguez


3. Set aside the report and appoint new We have forcible entry and unlawful
commissioner detainer.
4. Accept the report in part and reject in
part Note: accion interdictal is a summary
5. Make such order as to effectuate a fair proceeding. Incorporated ni and
and just partition of the property summary rules of procedure mao na
taas anng rule 70.

2. You have accion publiciana. – right to


recover beyond 1 year. (Dispossession
Before answering that, what is the effect of the other than the grounds mentioned in
report of commissioner? It is not binding to the rule 70)
parties because it is still subject to confirmation
by the court. Section 6 rule 69. NOTE: this particular section 1 is quiet
unique because as u can see under
ATTY EMPHASIZED “until the court shall have section 1, it mentions 2 causes of
confirm” action: unlawful detainer and forcible
entry. And there is nothing which
provides for accion publiciana. Hence if
Who has the final say? The court. Until the there is dispossession, and the grounds
court has accepted the report. neither point out to cause of action for
Remember: if the parties agree to the first forcible entry and unlawful detainer,
stage, no need to appoint commissioner, but you can file an accion publiciana.
take note if the parties do not agree, the court 3. Accion revindicatoria- recovery of
will appoint commissioner. The commissioner’s possession and ownership
report is subject to the approval of the court.

When is extrajudicial foreclosure apply? In the When it comes to accion interdictal-


absence of any agrememmt act 3135. who has jurisdiction? The municipal
trial court. Exclusive. Precisely, it is
summary in nature. Jurisdiction lies
ACCION interdictal- to avoid criminal disorder, with the MTC regardless of the
not to take the law on his own hands by filing damages and the rentals.
an ejectment case.
When it comes to accion publiciana and
What is the effect of judgement of partition Accion reinvidicatoria- do not forget RA 7691,
under rule 69? It has the effect of res judicata to expanding the jurisdiction of the MTC 20,000
parties and their successors in interest. and below or 50,000 and below with the MTC.
Above the amount, it should be with the RTC.
NOTE: when uu take the bar, kung wa mo kita
sa date sa problem, meaning mao na ang date
FORCIBLE ENTRY AND UNLAWFUL DETAINER sa problem.

Ejectment is a form of action to regain property. If naay date, consider the date.
There are 3 kinds of possessory actions.
1. Accion interdictal or ejectment.- Prior to effectivity of RA 7691, MTC has no
recovery of possession jurisdiction to determine title and ownership.
In so far as ejectment is concerned,

Anna Katrina Rodriguez


What is the characteristic of ejectment THE ABSENCE OF ONE WILL NOT MAKE A
proceeding? FORCIBLE ENTRY
In personam- binding only between parties. And
real action. As to the venue, where the property Unlawful detainer:
is situated. For unlawful entry, the entry was a lawful from
the start. Initially, the possession of the
Who are the parties in forcible entries? defendant was lawful by virtue of a contract or
1. The person deprived of his property by a mere tolerance. The second allegation,
FISTS. possession eventually becomes illegal upon the
2. Lessor (someone na naay right expiration of the contract AND demand by the
plaintiff. NOTE: prior demand is a jurisdictional
What if there is invocation of ownershiip by the requisite. Third, defendant remain in the
defendant? In the context of jurisdiction, how possession of the property. When he remain in
will u resolve it? Assertion of ownership is the possession of the property, the defendant is
immaterial. Go back to basic, the only issue to deprived of the possession of the property.
be resolve is the issue on possession. Forth, within 1 year from LAST letter of
demand, the plaintiff initiated an action for
What about involving tenancy, is the court unlawful detainer.
bound to resolve the case? The court should not
dismiss. Determine first the propriety the issue Prior demand is a jurisdictional requisite. When
of tenancy. What happens if the issue is really it comes to demand, it applies to both. To pay
tenancy? Dismiss. But If tenancy was only or to comply AND vacate. Because it is the
invoked para sa possession? Court shall demand which vest a cause of action to the
proceed. plaintiff. That is why I said it is a jurisdictional
requirement.
Assertion of ownership by defendant. What
happens to the pendig case of ejectment where Why? Even if there is demand to pay but NO
the defendant is now a plaintiff? As the judge, demand to vacate, it cannot make a case for
are u going to dismiss the case? No. same unlawful detainer.
parties sila, two pending action, same subject
matter, what is your take on this? NOOO. Why? Is demand necessary in forcible entry? NO. take
Take note! Notwithstanding the parties are the note of sec 1 which is unique because it
same, subject matter are the same, the relief pertains to two causes of action but when it
prayed for are not the same so they can go comes to section 2, it only pertains to unlawful
together. There is no violation of the detainer.
prohibition against multiplicity of suits here.
By mere tolerance- there is a need for demand.
We are talking of focible entry. Wwhat are the WHY? If someone is allowed to occupy the land
indispensable allegations? by mere tolerance, there is an implied promise
For forcible entry, there must be dispossession to vacate the land upon demand.
of the property. Aside from dispossession,
another allegation, there must be prior physical With the particular agreement embodied in the
possession by the plaintiff. written stipulation, can you dispense now or is
it safe to say that demand now is no longer
This is the reason why forcible entry sya kay ang necessary? DESPITE THE FACT THAT THE
entry gyud from the start kay unlawful na. PARTIES AGREE ALREADY THAT DEMAND IS NO
LONGER NECESSARY TO CONSIDER THE OTHER
CONTRACTING PARTY, FOR PURPOSES OF

Anna Katrina Rodriguez


EJECTMENT, DEMAND IS AN INDISPENSABLE
REQUIREMENT NOTWITHSTANDING THE CONTEMPT:
AGREEMENT THAT DEMAND IS NO LONGER
NECESSARY. Contempt is an inherent power of the court. No
need to cite the law.
Preliminry injunction to prevent the defendant PURPOSE: preserve the administration of
from further acts of dispossession. justice, to preserve the integrity of the court.
When it comes to forcible entry, entry from the
start is unlawful. So pag abot nmo, you That is whwy, in line with contempt, I will be
discovered, it, dnha pa mustart ang 1 year. talking of sub judice rule. In other words, under
Note if forcible entry, it should be preliminary judicial consideration. In the case of sereno, she
mandatory injunction. was asked to show cause why she should not be
cited in contempt of court, there is violation of
What is the effect of the decision of the sub judice rule. She cannot talk about a present
municipal trial court in favor of the plaintiff case. Like lawyer, granting interviews regarding
pertaining to possession? IT IS IMMEDIATELY pending a case, it is not allowed unta bec it is
EXECUTORY. Now, do not be misled by the still under consideration.
phrase IMMEDIATELY EXECUTORY, appeal is
available to the parties. The philosophy is to protect the proper
administration of justice. Knowing the concept
of contempt, The two fold purpose of
How? Dean’s discussion. (pls copy here) contempt.
1. Proper punishment to be meted out to
the disobedient or misbehaving party.
1. Perfection of appeal 2. To compel his performance of some act
2. Supercedeas bond or duty required of him by the court
1. Monthly deposit of rent which he refuses to perform.

Suppose judgement of court is further affirmed The classification of contempt are:


by the appellate court. What is the effect of the 1. Civil contempt – failure to do
judgement of the regional trial court? something when required by the
court.
Decision of the regional trial court is Specific judgement- failure to
immediately executory notwithstdanign further comply does not constitute
appeal to the court of appeals. contempt.
Special judgement- failure to
Suppose, we file a bond, or comply with the comply is contemptuous. The
ASD. Will that suffice? NO. when it comes to nature is civil
RTC, affirming the judgement of MTC cannot be 2. Criminal contempt - it means a
stayed by the appeal because it is immediately misbehavior directed against the
executory. integrity of the court.
That is why contempt is very
From MTC to RTC- immediately executory but necessary to preserve the integrity
can be stayed by appeal, supercedeas bond and of the court. Without such power of
rental deposit contempt, judicial institution is
undermined. Hence judicial
From RTC to CA-immediately executory and institution rests on a very shakey
cannot be stayed. foundation.

Anna Katrina Rodriguez


For example: A nangihi bsag aha The court may moto proprio or issue an order
lang tho there is this ordinance for the respondent to show cause why he
peeing everywhere, will you should not be cited for contempt. That is notice
consider it criminal contempt? NO. already to the respondent why he did that to
it is not contemptuous. court and for the court to wait for his
explanation or through a verified petition. As a
DIRECT CONTEMPT- when it is done in the rule, court cannot summarily punish respondent
presence or so near of the court in a judicial for indirect contempt since it can be done by
proceeding. the court only after notice and hearing as
opposed to direct contempt.
Example: judge cannot cite one in contempt
even if he is very near if outside sa court. Basically, the idea of contempt is the defiance
of the authority of the court.
INDIRECT CONTEMPT- committed outside court. This is very important.

Grounds for indirect contempt: However, you have to know their differences.
The remedy of certiorari and prohibition is
Misbehavior allowed in direct contempt, in indirect
Disobedience contempt, there must be notice and hearing.
A Normally the court will issue an order to show
I cause why he not be citeed in contempt. The
coyrt where the case is pending will issue the
A order.
F
R When it comes to verified petition, when
contempt is involved, and if it is against RTC , it
Section 3, rule 71. should be filed with the RTC, when it comes to
Note: sa bar favorite nang indirect contempt. MTC, still in the MTC or with the RTC where the
MTC is situated (territorial jurisdiction of RTC)
but appealable to RTC. When it come to RTC, it
When it comes to direct contempt, considering must be instituted with the RTC upon
that it was committed near or in the presenc of investigation by the public prosecutor. Whhy is
the judge, ordr of contempt is immediately it tht the supreme court cite a respondent in
executory such that appeal cannot be held. contempt of court. The court in its own
What is the remedy of the person? Remedy is initiative order the respondent to explain why
certiorari and prohibition (this pertains to direct he not be cited In contempt without the need
contempt) of any verified petition.

In extreme situations which is faster than QUESTION: sereno. It was indirect contempt.
certiorari and prohibition, never forget habeas Because it did not happen in the presence of
corpus. the justices.

But normally certiorari and prohibition are When it comes to direct contempt,
remedies for direct contempt. immediately. Do not take this lightly, because
contempt proceeding partakes a criminal nature
Indirect contempt, it is punished only after such that if it involves appeal, the appeal in
charge and hearing. Hearing is required. What criminal cases should be followed. In fact ang
are the procedural requirements? penalty kay imprisonment or fine or both.

Anna Katrina Rodriguez


In other words, court should not be influenced
AS I said, direct contempt immediately by extraneous circumstances.
executory, remedy is certiorari and prohibition.
But indirect hearing, after notice and hearing. In other words, court should not be influenced
with extraneous circumstances that would
Situation: indirect contempt. If the mtc is the undermine the integrity of the court bc it is
court which held u in contempt. So from mtc, bound to the evidence presented by the parties
appeal to rtc to ca to SC. and not comments of others.

If the RTC held u in contempt, appeal goes to CA


and then SC SC is utilizing the clear and present danger rule.
Before the court will cite the respondent in
Origin is MTC contempt of court,the court should first take
Rule 40 will be the mode of appeal from mtc to into consideration the clear and present danger
rtc. rule. This pertains to the balancing of interest
between the freedom of expression on one part
Rtc to ca rule 122 rule 42 and proper administration of justice on the
other hand. If the expression undermine the
Ca to sc rule 45 integrity of the court, the clear and present
danger rule is applied. It is not enough that u
Origin is RTC know the concept, it also requires that the
threat must be imminent not likely.
RTC to CA- rule 41 in relation to rule 124.

CA to SC rule 45 -end-

WHAT IS THE CONCEPT OF CRIMINAL


CONTEMPT:
Contempt directed against the conduct and
dignity of the court. The punishment is
imprisonment or fine or both.

IN CIVIL CONTEMPT
The punishment is fine.

INDIRECT CONTEMPT =
The court cannot prematurely cite person in
contempt because of notice and hearing.

SUB JUDICE RULE: considering that publication


and any comment is prohibited. (In fact no less
than sereno was asked to explain bc of violation
of this sub judice rule)
Purpose: in order not to interfere or impede or
embarrass the administration of justice.

Anna Katrina Rodriguez

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