Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
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)
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.
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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
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,
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.
CA to SC rule 45 -end-
IN CIVIL CONTEMPT
The punishment is fine.
INDIRECT CONTEMPT =
The court cannot prematurely cite person in
contempt because of notice and hearing.