Rule 57 - Preliminary Attachment
155504,
1. PCL Industries v. Court of Appeals, G.R. No.
147970, 31 March 2006, 486 SCRA 214
Facts: Private respondent filed a complaint with the
RTC for Sum of Money with Preliminary Attachment
against herein petitioner for the latter's failure to
comply with the terms of the sale of various ink
materials, and to pay its obligations despite repeated
verbal and written demands.
Apparently thereafter, petitioner was served
with summons together with the Writ of Preliminary
Attachment which propriety of its issuance attachment
stood as it was as the motion to discharge the writ was
denied.
In the meantime, petitioner filed its Answer
with Counterclaim claiming that the various printing ink
materials delivered to it by private respondent were
defective but nothing was done to solve the matter.
After trial on the merits, the trial court rendered
its Decision favoring herein appellee, which judgment
was appealed to the CA. The appellate court affirmed
the RTC judgment, holding that there was sufficient
evidence to prove that herein petitioner had the
intention of defrauding private respondent when it
contracted the obligation because it agreed to pay
within 30 days from the date of purchase but once the
merchandise was in its possession, it refused to pay.
Issue: Whether the mere failure to pay an obligation
upon falling due and despite several demands is
enough to warrant the issuance of the harsh
provisional remedy of preliminary attachment under
Section 1(d), Rule 57 of the Rules of Court.
Ruling:The issuance of the Writ of Preliminary
Attachment was improper. To sustain an attachment
on Section 1(d), Rule 57, it must be shown that the
debtor in contracting the debt or incurring the
obligation intended to defraud the creditor. The fraud
must relate to the execution of the agreement and
must have been the reason which induced the other
party into giving consent which he would not have
otherwise given. To constitute a ground for
attachment in Section 1 (d), Rule 57 of the Rules of
Court, fraud should be committed upon contracting the
obligation sued upon. A debt is fraudulently contracted
if at the time of contracting it the debtor has a
preconceived plan or intention not to pay. Fraud is a
state of mind and need not be proved by direct
evidence but may be inferred from the circumstances
attendant in each case.
Fraudulent intent not to honor the admitted
obligation cannot be inferred from the debtor's inability
to pay or to comply with the obligations.
Petition partly GRANTED. Writ of Preliminary
Attachment is ordered LIFTED. In all other respects,
the CA Decision and Resolution are AFFIRMED.
2. Professional Video v. TESDA, G.R. No.
26 June 2009, 591 SCRA 83
Facts: In 1999, TESDA, an instrumentality of the
government established under R.A. No. 7796 (the
TESDA Act of 1994) and attached to the DOLE to
develop and establish a national system of skills
standardization, testing, and certification in the
country.
To fulfill this mandate, it sought to issue
security-printed certification and/or identification
polyvinyl (PVC) cards to trainees who have passed the
certification process.
Professional Video Inc. (PROVI) signed and
executed the “Contract Agreement Project PVC ID
Card issuance” for the provision of goods and services
in the printing and encoding of the PVC cards. PROVI
was to provide TESDA with the system and equipment
compliant with the specifications defined in the
proposal. In return, TESDA would pay PROVI a
specified sum of money after TESDA’s acceptance of
the contracted goods and services. PPOVI alleged that
TESDA has still an outstanding balance and still
remains unpaid.
TESDA claims that it entered the Contract
Agreement and Addendum in the performance of its
governmental function to develop and establish a
national system of skills standardization, testing, and
certification; in the performance of this governmental
function, TESDA is immune from suit.
Issue: Can TESDA be sued without its consent?
Held: TESDA, as an agency of the State, cannot be
sued without its consent. The rule that a state may not
be sued without its consent is embodied in Section 3,
Article XVI of the 1987 Constitution and has been an
established principle that antedates this Constitution. It
is as well a universally recognized principle of
international law that exempts a state and its organs
from the jurisdiction of another state.
The principle is based on the very essence of
sovereignty, and on the practical ground that there can
be no legal right as against the authority that makes
the law on which the right depends. It also rests on
reasons of public policy. That public service would be
hindered, and the public endangered, if the sovereign
authority could be subjected to law suits at the
instance of every citizen and, consequently, controlled
in the uses and dispositions of the means required for
the proper administration of the government.
The proscribed suit that the state immunity
principle covers takes on various forms, namely: a suit
against the Republic by name; a suit against an
unincorporated government agency; a suit against a
government agency covered by a charter with respect
to the agencys performance of governmental
functions; and a suit that on its face is against a
government officer, but where the ultimate liability will
fall on the government. In the present case, the writ of
attachment was issued against a government agency
covered by its own charter.
As discussed above, TESDA performs
governmental functions, and the issuance of
certifications is a task within its function of developing
and establishing a system of skills standardization,
testing, and certification in the country. From the
perspective of this function, the core reason for the
existence of state immunity applies i.e., the public
policy reason that the performance of governmental
function cannot be hindered or delayed by suits, nor
can these suits control the use and disposition of the
means for the performance of governmental functions.
3. Metro Inc. et al v. Lara’s Gifts, G.R. No. 171741,
27 November 2009, 606 SCRA
175
FACTS:Laras Gifts and Decors Inc. (LGD) and Metro,
Inc. are corporations engaged in the business of
handicrafts. Luis and Lara Maria R. Villafuerte are the
president and vice-president of LGD. Frederick Juan
and Liza Juan are the principal officers of Metro, Inc.
 Petitioners and respondents agreed that
respondents would endorse to petitioners purchase
orders received by respondents from their buyers in
the United States of America in exchange for a 15%
commission, to be shared equally by respondents and
James R. Paddon (JRP), LGDs agent.
 R filed a complaint against petitioners for sum
of money and damages with a prayer for the issuance
of a writ of preliminary attachment.
 R filed an amended complaint alleging that
petitioners defrauded them in the amount of
$521,841.62.
 R also prayed for P1,000,000 as moral
damages, P1,000,000 as exemplary damages and
10% of the judgment award as attorney’s
fees. Respondents also prayed for the issuance of a
writ of preliminary attachment
 The TC granted R prayer and issued the writ
of attachment against the properties and assets of
petitioners
 P filed a motion to discharge the writ of
attachment
 P argued that the writ of attachment should be
discharged on the following grounds: (1) that the 2001
agreement was not a valid contract because it did not
show that there was a meeting of the minds between
the parties; (2) assuming that the 2001 agreement was
a valid contract, the same was inadmissible because R
failed to authenticate it in accordance with the Rules
on Electronic Evidence; (3) that R failed to substantiate
their allegations of fraud with specific acts or deeds
showing how petitioners defrauded them; and (4) that
respondents failed to establish that the unpaid
commissions were already due and demandable.
 TC granted P motion and lifted the writ of
attachment.
 R filed a motion for reconsideration, however
denied by TC.
 R filed a petition for certiorari before the Court
of Appeals
 Petitioners filed a motion for
reconsideration. In its 2 March 2006 Resolution, the
Court of Appeals denied the motion.
 TC respondents failed to sufficiently show that
petitioners were guilty of fraud either in incurring the
obligation upon which the action was brought, or in the
performance, found no proof that petitioners were
motivated by malice in entering into the 2001
agreement
 CA - the trial court gravely abused its
discretion when it ordered the discharge of the writ of
attachment without requiring petitioners to post a
counter-bond
Issue: Whether the writ of attachment issued by the
trial court was improperly issued such that it may be
discharged without the filing of a counter-bond
Ruling:No merit.
 The writ of attachment was improperly issued
because respondent’s amended complaint failed to
allege specific acts or circumstances constitutive of
fraud.
 To sustain an attachment on this ground, it
must be shown that the debtor in contracting the debt
or incurring the obligation intended to defraud the
creditor. The fraud must relate to the execution of the
agreement and must have been the reason which
induced the other party into giving consent which he
would not have otherwise given. To constitute a
ground for attachment in Section 1(d), Rule 57 of the
Rules of Court, fraud should be committed upon
contracting the obligation sued upon. A debt is
fraudulently contracted if at the time of contracting it
the debtor has a preconceived plan or intention not to
pay, as it is in this case
 The applicant for a writ of preliminary
attachment must sufficiently show the factual
circumstances of the alleged fraud because fraudulent
intent cannot be inferred from the debtor’s mere non-
payment of the debt or failure to comply with his
obligation.
 The rule that when the writ of attachment is
issued upon a ground which is at the same time the
applicants cause of action, the only other way the writ
can be lifted or dissolved is by a counter-bond[21] is
applicable in this case. It is clear that in respondents
amended complaint of fraud is not only alleged as a
ground for the issuance of the writ of preliminary
attachment, but it is also the core of respondent’s
complaint. The fear of the Court of Appeals that
petitioners could force a trial on the merits of the case
on the strength of a mere motion to dissolve the
attachment has a basis.
4. Torres v. Satsatin, G.R. No. 166759, 25
November 2009, 605 SCRA 453
Facts:Siblings Torres (petitioners) each owned
adjacent 20,000 square meters track of land in
Dasmariñas, Cavite. Nicanor Satsatin, through
petitioners’ mother Agripina Aledia, was able to
convince the siblings to sell their property and
authorize him via SPA, to negotiate for its sale.
Nicanor offered to sell the properties to Solar
Resources, to which Solar allegedly agreed to buy the
three parcels of land plus the property of one Rustica
Aledia for P35,000,000. Petitioners claimed that Solar
has already paid the entire purchase price, however
Nicanor only remitted P9, 000,000 out of the P28,
000,000 sum they are entitled to and that Nicanor had
acquired a house and lot and a car (which he
registered in the names of his children). Despite the
repeated verbal and written demands, Nicanor failed to
remit the balance prompting the petitioners to file a
complaint for sum of money against the family
Satsatin.
Petitioners filed an Ex Parte Motion for the
Issuance of a Writ of Attachment, alleging among other
things, that respondent was about to depart the
country and that they are willing to post a bond fixed
by court. After filing a Motion for Deputation of Sheriff,
which the RTC granted, it issued a Writ of Attachment
(WOA) on November 15. On November 19, after
serving a copy of the WOA upon the Satsatins, the
sheriff levied their real and personal properties. On
November 21, the summons and copy of complaint
was served upon the respondents. Respondents filed
their answer and a Motion to Discharge Writ of
Attachment, claiming, among others, that: the bond
was issued before the issuance of WOA, the WOA
was issued before the summons was received.
Respondents posted a counter-bond for the lifting of
WOA, which was denied along with MR. Aggrieved,
they filed with CA a Petition for Certiorari, Mandamus
and Prohibition with Preliminary Injunction and TRO
under Rule 65. CA ruled in favor of respondents and
denied petitioners’ MR hence the petition for review on
certiorari with the SC.
Issue:Whether the CA erred in finding that RTC was
guilty of GADALEJ in the issuance and implementation
of the WOA
Held:No. A writ of preliminary attachment is defined as
a provisional remedy issued upon order of the court
where an action is pending to be levied upon the
property or properties of the defendant therein, the
same to be held thereafter by the sheriff as security for
the satisfaction of whatever judgment that might be
secured in the said action by the attaching creditor
against the defendant.
In the case at bar, the CA correctly found that there
was grave abuse of discretion amounting to lack of or
in excess of jurisdiction on the part of the trial court in
approving the bond posted by petitioners despite the
fact that not all the requisites for its approval were
complied with. In accepting a surety bond, it is
necessary that all the requisites for its approval are
met; otherwise, the bond should be rejected.
Moreover, in provisional remedies, particularly
that of preliminary attachment, the distinction between
the issuance and the implementation of the writ of
attachment is of utmost importance to the validity of
the writ. The distinction is indispensably necessary to
determine when jurisdiction over the person of the
defendant should be acquired in order to validly
implement the writ of attachment upon his person.
In Cuartero v. Court of Appeals, this Court held
that the grant of the provisional remedy of attachment
involves three stages: first, the court issues the order
granting the application; second, the writ of attachment
issues pursuant to the order granting the writ; and
third, the writ is implemented. For the initial two stages,
it is not necessary that jurisdiction over the person of
the defendant be first obtained. However, once the
implementation of the writ commences, the court must
have acquired jurisdiction over the defendant, for
without such jurisdiction, the court has no power and
authority to act in any manner against the defendant.
Any order issuing from the Court will not bind the
defendant.
At the time the trial court issued the writ of
attachment on November 15, 2002, it can validly to do
so since the motion for its issuance can be filed “at the
commencement of the action or at any time before
entry of judgment.” However, at the time the writ was
implemented, the trial court has not acquired
jurisdiction over the persons of the respondent since
no summons was yet served upon them. The proper
officer should have previously or simultaneously with
the implementation of the writ of attachment, served a
copy of the summons upon the respondents in order
for the trial court to have acquired jurisdiction upon
them and for the writ to have binding effect.
Consequently, even if the writ of attachment was
validly issued, it was improperly or irregularly enforced
and, therefore, cannot bind and affect the respondents.
Moreover, again assuming arguendo that the
writ of attachment was validly issued, although the trial
court later acquired jurisdiction over the respondents
by service of the summons upon them, such belated
service of summons on respondents cannot be
deemed to have cured the fatal defect in the
enforcement of the writ. The trial court cannot
enforce such a coercive process on respondents
without first obtaining jurisdiction over their
person. The preliminary writ of attachment must be
served after or simultaneous with the service of
summons on the defendant whether by personal
service, substituted service or by publication as
warranted by the circumstances of the case. The
subsequent service of summons does not confer a
retroactive acquisition of jurisdiction
5. Lim v. Lazaro, G.R. No. 185734, 3 July 2013, 700
SCRA 547
FACTS:Petitioner Lim Jr filed a complaint for a sum of
money with a prayer for the issuance of a writ of
preliminary attachment against the respondent Sps
Lazaro. The RTC granted the writ of preliminary
attachment application and upon the posting of the
required bond issued the corresponding writ on
October 14, 2005. 3 parcels of land owned by the
respondent spouses were levied upon.
 The parties later entered into a Compromise
Agreement whereby Sps. Lazaro agreed to pay Lim,
Jr. the amount of P2,351,064.80 on an installment
basis, following a schedule of payments covering the
period from September 2006 until October 2013. The
RTC rendered a decision on the basis of the
compromise.
 Sps. Lazaro then filed an Omnibus Motion,
seeking to lift the writ of preliminary attachment
annotated on the subject TCTs.
In granting the Motion, the RTC ruled that a writ of
preliminary attachment is a mere provisional or
ancillary remedy, resorted to by a litigant to protect and
preserve certain rights and interests pending final
judgment. Considering that the case had already been
considered closed and terminated by the rendition of
the decision based on the compromise agreement, the
writ of preliminary attachment should be lifted and
quashed.

ISSUE: Whether or not the writ of preliminary
attachment was properly lifted.
HELD:NO. By its nature, preliminary attachment,
under Rule 57 of the Rules of Court (Rule 57), is an
ancillary remedy applied for not for its own sake but to
enable the attaching party to realize upon the relief
sought and expected to be granted in the main or
principal action; it is a measure auxiliary or incidental
to the main action. As such, it is available during its
pendency which may be resorted to by a litigant to
preserve and protect certain rights and interests during
the interim, awaiting the ultimate effects of a final
judgment in the case. In addition, attachment is also
availed of in order to acquire jurisdiction over the
action by actual or constructive seizure of the property
in those instances where personal or substituted
service of summons on the defendant cannot be
effected.
 In this relation, while the provisions of Rule 57
are silent on the length of time within which an
attachment lien shall continue to subsist after the
rendition of a final judgment, jurisprudence dictates
that the said lien continues until the debt is paid, or the
sale is had under execution issued on the judgment or
until the judgment is satisfied, or the attachment
discharged or vacated in the same manner provided
by law.
 Applying these principles, the Court finds that
the discharge of the writ of preliminary attachment
against the properties of Sps. Lazaro was improper.
Records indicate that while the parties have entered
into a compromise agreement which had already been
approved by the RTC in its January 5, 2007 Amended
Decision, the obligations thereunder have yet to be
fully complied with – particularly, the payment of the
total compromise amount of P2,351,064.80. Hence,
given that the foregoing debt remains unpaid, the
attachment of Sps. Lazaro’s properties should have
continued to subsist.
In the earlier case of Chemphil Export & Import
Corporation v. CA, the Court ruled that a writ of
attachment is not extinguished by the execution of a
compromise agreement between the parties. In that
case the Court held thus:
The case at bench admits of peculiar character
in the sense that it involves a compromise agreement.
The parties to the compromise agreement should not
be deprived of the protection provided by an
attachment lien especially in an instance where one
reneges on his obligations under the agreement, as in
the case at bench, where Antonio Garcia failed to hold
up his own end of the deal, so to speak.
 If we were to rule otherwise, we would in effect
create a back door by which a debtor can easily
escape his creditors. Consequently, we would be
faced with an anomalous situation where a debtor, in
order to buy time to dispose of his properties, would
enter into a compromise agreement he has no
intention of honoring in the first place. The purpose of
the provisional remedy of attachment would thus be
lost. It would become, in analogy, a declawed and
toothless tiger. (Emphasis and underscoring supplied;
citations omitted)
 In fine, the Court holds that the writ of
preliminary attachment subject of this case should be
restored and its annotation revived in the subject
TCTs, re-vesting unto Lim, Jr. his preferential lien over
the properties covered by the same as it were before
the cancellation of the said writ. Lest it be
misunderstood, the lien or security obtained by an
attachment even before judgment, is in the nature of a
vested interest which affords specific security for the
satisfaction of the debt put in suit.30 Verily, the lifting
of the attachment lien would be tantamount to an
abdication of Lim, Jr.’s rights over Sps. Lazaro’s
properties which the Court, absent any justifiable
ground therefor, cannot allow.
6. Olib v. Pastoral, G.R. No. 81120, 20 August 1990,
188 SCRA 692
Facts:On November 13, 1981, Corazon M. Navia sued
Petitioners, for dissolution of their partnership and
other reliefs, with a prayer for the issuance of a writ of
a preliminary attachment.The petition was granted
resulting in the attachment of 6 parcels of land
belonging to the petitioners, along with stocks of
merchandise in their bodega. The writ was amended
excluding the merchandise.
On May 16, 1985, the petitioners filed a motion
to discharge the preliminary attachment on the ground
that the attachment bond executed for one year from
November 1983 had already lapsed. Judge Miguel S.
Rallos of the RTC of Agusan del Norte and Butuan
City ruled in favor of Petitioners.
On July 20, 1987, the petitioners moved for the
discharge of the writ of preliminary attachment. Navia
filed an opposition, contending that as she had
perfected her appeal to the Court of Appeals, the trial
court no longer had any jurisdiction over the case.
On August 24, 1987, Judge Edelwina C. Pastoral, who
had succeeded Judge Rallos denied the motion on the
ground invoked in the opposition.
The petitioners moved for reconsideration
however it was denied. Petitioners filed another MFR
insisting that (a) the attachment had been
automatically discharged under Rule 57, Section 19;
and (b) the attachment bond had already lapsed for
non-payment of the premiums. They were rebuffed
again. They then came before this Court, contending
that the respondent court committed grave abuse of
discretion in denying their motion.
Issues:
1. WON the attachment bond had already lapsed for
non-payment of the premiums.
2. WON the attachment had been automatically
discharged under Rule 57 Section 19
Held:
First Issue: No
Attachment is defined as a provisional remedy
by which the property of an adverse party is taken into
legal custody, either at the commencement of an
action or at any time thereafter, as a security for the
satisfaction of any judgment that may be recovered by
the plaintiff or any proper party. 8
It is an auxiliary remedy and cannot have an
independent existence apart from the main suit or
claim instituted by the plaintiff against the defendant. 9
Being merely ancillary to a principal proceeding, the
attachment must fail if the suit itself cannot be
maintained as the purpose of the writ can no longer be
justified.
The consequence is that where the main
action is appealed, the attachment which may have
been issued as an incident of that action is also
considered appealed and so also removed from the
jurisdiction of the court a quo. The attachment itself
cannot be the subject of a separate case independent
of the principal action because the attachment was
only an incident of such action.
Coming now to the argument that the
attachment was automatically lifted because of the
non-payment of the premium on the attachment bond,
the Court feels it is time again to correct a common
misimpression. The rule is that the bond is not deemed
Second Issue: No
The order of attachment is considered
discharged only where the judgment has already
become final and executory and not when it is still on
appeal. The obvious reason is that, except in a few
specified cases, execution pending appeal is not
allowed.
7. Traders Royal Bank v. IAC, L-66321, 31 October
1984, 133 SCRA 141
Facts: Sometime on March 18, 1983 herein petitioner
Traders Royal Bank instituted a suit against the
Remco Alcohol Distillery, Inc. REMCO before the
Regional Trial Court of Pasay City, for recovery of the
sum of P2,382,258.71 obtaining therein a writ of pre
attachment directed against the assets and properties
of Remco Alcohol Distillery, Inc.
On May 12, 1982, private respondent La
Tondeña, Inc. filed a complaint-in- intervention in said
Civil Case No. 9894, alleging among others, that 'it had
made advances to Remco Distillery Inc. which totalled
P3M and which remains outstanding as of date' and
that the 'attached properties are owned by La
Tondeña, Inc.
Subsequently, private respondent La Tondeña,
Inc., without the foregoing complaint-in- intervention
having been passed upon by the Regional Trial Court,
Branch CX, (Pasay City), filed in Civil Case No. 9894-
P a "Motion to Withdraw" dated October 8, 1983,
praying that it be allowed to withdraw alcohol and
molasses from the Remco Distillery Plant and which
motion was granted per order of the Pasay Court
dated January 27, 1983, authorizing respondent La
Tondeña, Inc. to withdraw alcohol and molasses from
the Remco Distillery Plant at Calumpit, Bulacan.
On July 19, 1983, private respondent La
Tondeña Inc. instituted before the Regional Trial Court,
Branch IX, Malolos, Bulacan presided over by
Respondent Judge, Civil Case No. 7003-M, in which it
asserted its claim of ownership over the properties
attached in Civil Case No. 9894-P, and likewise prayed
for the issuance of a writ of Preliminary Mandatory and
Prohibitory Injunction.
A Motion to Dismiss and/or Opposition to the
application for a writ of Preliminary Injunction by herein
respondent La Tondeña Inc. was filed by petitioner on
July 27, 1983.
Thereafter, petitioner Traders Royal Bank filed
with the Intermediate Appellate Court a petition for
certiorari and prohibition, with application for a writ of
preliminary injunction, to annul and set aside the Order
dated September 28, 1983 of the respondent Regional
Trial Court of Malolos, Bulacan, Branch IX, issued in
Civil Case No. 7003-M; to dissolve the writ of
preliminary injunction dated October 6, 1983 issued
pursuant to said order; to prohibit respondent Judge
from taking cognizance of and assuming jurisdiction
over Civil Case No. 7003-M, and to compel private
respondent La Tondeña, Inc., and Ex- Oficio Provincial
Sheriff of Bulacan to return the disputed alcohol to
their original location at Remco's ageing warehouse at
Calumpit, Bulacan.
In its decision, the Intermediate Appellate
Court dismissed the petition for lack of legal and
factual basis, holding that the respondent Judge did
not abuse his discretion in issuing the Order of
September 28, 1983 and the writ of preliminary
injunction dated October 3, 1983. citing the decision in
Detective and Protective Bureau vs. Cloribel (26 SCRA
255). Petitioner moved for reconsideration, but the
respondent court denied the same in its resolution
dated February 2, 1984.
Issue:Whether the respondent judge acted without
jurisdiction in authorizing the issuance of a writ of
preliminary mandatory and prohibitory injunction,
which enjoined the sheriff of Pasay City from
interferring with La Tondeña's right to enter and
withdraw the barrels of alcohol and molasses from
Remco's ageing warehouse and from conducting the
sale thereof.
Held: There is no question that the action filed by
private respondent La Tondeña, Inc., as third-party
claimant, before the Regional Trial Court of Bulacan
wherein it claimed ownership over the property levied
upon by Pasay City Deputy Sheriff Edilberto Santiago
is sanctioned by Section 14, Rule 57 of the Rules of
Court. Thus —
If property taken be claimed by any person other
than the party against whom attachment had been
issued or his agent, and such person makes an
affidavit of his title thereto or right to the possession
thereof, stating the grounds of such right or title,
and serves such affidavit upon the officer while the
latter has possession of the property, and a copy
thereof upon the attaching creditor, the officer shall
not be bound to keep the property under the
attachment, unless the attaching creditor or his
agent, on demand of said officer, secures aim
against such claim by a bond in a sum not greater
than the value of the property attached. In case of
disagreement as to such value, the same shall be
decided by the court issuing the writ of attachment.
The officer shall not be liable for damages, for the
taking or keeping of such property, to any such
third-party claimant, unless such a claim is so made
 and the action upon the bond brought within one
hundred and twenty (120) days from the date of the
filing of said bond. But nothing herein contained
shall prevent such third person from vindicating his
claim to the property by proper action ...
The foregoing rule explicitly sets forth the
remedy that may be availed of by a person who claims
to be the owner of property levied upon by attachment,
viz: to lodge a third- party claim with the sheriff, and if
the attaching creditor posts an indemnity bond in favor
of the sheriff, to file a separate and independent action
to vindicate his claim (Abiera vs. Court of Appeals, 45
SCRA 314). And this precisely was the remedy
resorted to by private respondent La Tondeña when it
filed the vindicatory action before the Bulacan Court.
Generally, the rule that no court has the power
to interfere by injunction with the judgments or decrees
of a concurrent or coordinate jurisdiction having equal
power to grant the injunctive relief sought by injunction,
is applied in cases where no third-party claimant is
involved, in order to prevent one court from nullifying
the judgment or process of another court of the same
rank or category, a power which devolves upon the
proper appellate court . 2 The purpose of the rule is to
avoid conflict of power between different courts of
coordinate jurisdiction and to bring about a harmonious
and smooth functioning of their proceedings.
It is further argued that since private
respondent La Tondeña, Inc., had voluntarily
submitted itself to the jurisdiction of the Pasay Court by
filing a motion to intervene in Civil Case No. 9894-P,
the denial or dismissal thereof constitutes a bar to the
present action filed before the Bulacan Court.
8. Luzon Development Bank v. Krishnan, G.R. No.
203530, 13 April 2015, 755
SCRA 358
FACTS:
 Petitioners Luzon Development Bank, Tomas
Clemente, and Oscar Ramirez are the respondents in
the complaint for Collection of Sum of Money and
Damages filed by respondent Erlinda Khrishnan
 Erlinda claimed that she is a client of
respondent bank wherein she maintained several
accounts including time deposits.
 Erlinda presented her Time Deposits
Certificates amounting to P28,597,472.70 for payment
because they have become due, petitioners refused to
honor them for the reason that they were fraudulent.
 Respondent Erlinda likewise applied for a
Preliminary Writ of Attachment which the RTC granted
 By virtue of the writ, petitioner bank's accounts
in BPI Family Bank, Calamba, Laguna and in the
Central Bank were garnished.
 P filed an urgent ex-parte Motion to Recall
Quash and/or Lift Attachment or Garnishment (in
excess of amounts in the writ).
 R opposed the motion.
 P filed an Omnibus Motion seeking the
substitution of their garnished account
 RTC resolved the pending incidents and
required the petitioners to justify their motion to
discharge the attachment
 During pre-trial, respondents requested
additional time to file a supplemental motion to justify
their earlier motions which was granted and gave
petitioners ten (10) days from receipt within which to
comment or opposed it
 RTC issued an order lifting the attachment to
which respondent Erlinda filed a motion for
reconsideration
 Petition for certiorari is granted
 P subsequent motion for reconsideration was
denied.
 R judge issued an Order directing respondent
Erlinda to file a new attachment bond in the amount of
P35,000,000.00 and petitioners to file a counterbond
within ten days from notice of the filing and approval of
the bond of respondent Erlinda. Petitioners moved for
the reconsideration of the said Order which respondent
judge denied and granted a period of fifteen days for
respondent Erlinda to file an attachment bond
 Erlinda filed her attachment bond on June 25,
2009 in the amount of P35,000,000.00
 P filed a motion for extension of time to comply
and/or file the appropriate pleading and to hold in
abeyance the reinstatement of the writ of attachment
 P filed a motion to admit bank property in lieu
of counterbond which was opposed by respondent
Erlinda
 R judge denied petitioners' motion in the
assailed Order, issued an Order reinstating the Writ of
Attachment dated March 1, 2001 for failure of
petitioners to file the required counterbond, and issued
an amended Reinstated Writ of Attachment directing
respondent Sheriff Oscar L. Rojas (hereafter
respondent Sheriff) to attach the real estate or
personal properties of petitioners in the amount of
P28,597,472.70. On June 30, 2011, the sheriff served
the Notice of Garnishment and the Amended
Reinstated Writ of Attachment
 P filed an urgent motion to recall, suspend or
hold in abeyance and re-examination of the amended
reinstated writ of preliminary attachment
 P filed this petition for certiorari
 CA–dismissed petitioners' certiorari petition
and affirmed the Orders of the RTC reinstating the Writ
of Attachment for failure of petitioners to file the
required counter-bond.
Issue:Whether the CA erred in affirming the RTC's
decision which denied petitioners' motion praying that
bank property be deposited in lieu of cash or a
counter-bond
Ruling:We rule in the negative.Section 2, Rule 57 of
the Rules of Court explicitly states that "[a]n order of
attachment may be issued either ex parte or upon
motion with notice and hearing by the court in which
the action is pending, or by the Court of Appeals or the
Supreme Court, and must require the sheriff of the
court to attach so much of the property in the
Philippines of the party against whom it is issued, not
exempt from execution, as may be sufficient to satisfy
the applicant's demand, unless such party makes
deposit or gives a bond as hereinafter provided in
an amount equal to that fixed in the order, which
may be the amount sufficient to satisfy the applicant's
demand or the value of the property to be attached as
stated by the applicant, exclusive of costs."it is
evidently clear that once the writ of attachment has
been issued, the only remedy of the petitioners in
lifting the same is through a cash deposit or the filing
of the counter-bond.
Rule 58 - Preliminary Injunction
1. Filipino Metals v. Secretary of Trade and
Industry, G.R. No. 157498, 15 July 2005, 463 SCRA
616
Facts:EO 156 issued by President Arroyo on
December 12, 2002, imposes a partial ban on the
importation of used motor vehicles. The ban is part of
several measures EO 156 adopts to "accelerate the
sound development of the motor vehicle industry in the
Philippines." In Executive Secretary v. Southwing
Heavy Industries, Inc. and two related petitions, we
found EO 156 a valid executive issuance enforceable
throughout the Philippine customs territory, except in
the Subic Special Economic and Freeport Zone in
Zambales by virtue of its status as a "separate
customs territory" under Republic Act No. 7227.
Respondent Forerunner Multi Resources, Inc.
(respondent), a corporation engaged in the importation
of used motor vehicles via the ports of Aparri, Cagayan
and San Fernando, La Union, sued the government in
the RTC of Appari, to declare invalid EO 156,
impleading petitioner public officials as
respondents. Respondent attacked EO 156 for (1)
having been issued by President Arroyo ultra vires; (2)
trenching the Due Process and Equal Protection
Clauses of the Constitution; and (3) having been
superseded by Executive Order No. 418 (EO
418), issued by President Arroyo on 4 April 2005,
modifying the tariff rates of imported used motor
vehicles. Respondent sought a preliminary injunctive
writ to enjoin, litis pendentia, the enforcement of EO
156.
RTC: Acting on respondent’s application for
preliminary injunctive remedy, the trial court granted
relief, initially by issuing a TRO followed by a writ of
preliminary injunction granted in its Order of 27
November 2008. On petitioners’ motion, however, the
trial court reconsidered its Order and lifted the
injunctive writ on 7 July 2010. The trial court grounded
its ruling on Southwing which it considered as negating
any "clear and
the Court of Appeals erred in granting preliminary
injunctive relief to respondent to enjoin enforcement of
EO 156.
Held: Yes
It is a deeply ingrained doctrine in Philippine
remedial law that a preliminary injunctive writ under
Rule 58 issues only upon a showing of the applicant’s
"clear legal right" being violated or under threat of
violation by the defendant. "Clear legal right," within
the meaning of Rule 58, contemplates a right "clearly
founded in or granted by law." Any hint of doubt or
dispute on the asserted legal right precludes the grant
of preliminary injunctive relief.For suits attacking the
validity of laws or issuances with the force and effect of
law, as here, the applicant for preliminary injunctive
relief bears the added burden of overcoming the
presumption of validity inhering in such laws or
issuances. These procedural barriers to the issuance
of a preliminary injunctive writ are rooted on the
equitable nature of such relief, preserving the status
quo while, at the same time, restricting the course of
unmistakable legal right" on the part of respondent to
receive the "protection of a writ of preliminary
injunction."
Respondent elevated the case to the Court of
Appeals in a certiorari petition.
CA: Granted the certiorari and set aside the
RTC’s order reinstated its Order of 27 November 2008.
Petitioners are now before the CA with having
committed an error of law in reinstating the preliminary
injunctive writ for respondent. They argue that
Southwing controls the case, precluding the CA from
recognizing a clear legal right of respondent to import
used motor vehicles.
Respondent counters that the doctrinal import
of Southwing was weakened by the subsequent
issuance of EO 418, allegedly repealing EO 156.
Respondent invokes our minute Resolution of 15
November 2010 denying the petition as judicial
confirmation of the supposed repeal.
Issue: The question is whether action of the
defendants even before adverse judgment is rendered
against them.
Respondent sought preliminary injunctive relief
as ancillary to its principal cause of action to invalidate
EO 156. Respondent’s attack on EO 156, however,
comes on the heels of Southwing where we passed
upon and found EO 156 legally sound, albeit
overextended in application. We found EO 156 a valid
police power measure addressing an "urgent national
concern":
There is no doubt that the issuance of the ban
to protect the domestic industry is a reasonable
exercise of police power. The deterioration of the local
motor manufacturing firms due to the influx of imported
used motor vehicles is an urgent national concern that
needs to be swiftly addressed by the President. In the
exercise of delegated police power, the executive can
therefore validly proscribe the importation of these
vehicles
2. Power Sites v. United Neon, G.R. No. 163406, 24
November 2009, 605 SCRA 196
In Power Sites and Signs, Inc. vs. United Neon, the
Supreme Court stated that there is no “irreparable
injury” as understood in law. Rather, the damages
alleged by the petitioner, namely, “immense loss in
profit and possible damage claims from clients” and
the cost of the billboard which is “a considerable
amount of money” is easily quantifiable, and certainly
does not fall within the concept of irreparable damage
or injury as described in Social Security Commission v.
Bayona, 115 Phil. 105, 110 (1962)
3. Hernandez v. NAPOCOR, G.R. No. 145328, 23
March 2006, 485 SCRA 166
Sometimein1996,RespondentNationalPowerCorpor
ationbeganthe
constructionof29steelpolesinconnectionwithits230kilo-
voltSucat-Araneta-
BalintawakPowerTransmissionProject.Thesepoles,eac
hofwhichwas53.4meters
high,weretosupportoverheadtensioncablesthatwouldp
assthroughDasmariñas
Village,MakatiCity,wherepetitioners’homeswerelocate
d.
Troubleensuedwhenpetitionersdiscoveredsomescie
ntificstudies,findingthat
electromagneticfieldscreatedbyhigh-
voltagepowerlinescouldcausearangeof
illnessesfromcancertoleukemia.Inaprivilege speech,
Representative Francis Joseph
G.Escuderodenouncedthecavalier manner in which
Napocor had ignored
safetyandconsultationrequirements.Anexplanationwas
demandedby
RepresentativeArnulfoFuentebella,chairpersonof the
HouseCommitteeonEnergy.
Respondentadmittedthatitwasstillnegotiatingwithpetitio
ners,andthatithadcome
upwithfouroptionstoaddresstheproblem:transfertheline,
maintaina12-meter
distancefromthevillage,constructanundergroundline,orr
eroutealongC-5and
SouthLuzonExpressway.Thesenegotiationsresultedina
nimpasse.
OnMarch9,2000,petitionersfiledaComplaintforDamage
swithPrayerfor
theIssuanceofaTemporaryRestrainingOrderand/oraWri
tofPreliminary InjunctionagainstNapocor.Judge
Francisco B.IbayissuedanOrdertemporarily
restrainingitfromenergizingandtransmittinghigh-
voltageelectriccurrentthroughtheproject.ThisOrderwas
extendedfrom2daysto18days.
RespondentfiledwiththeCourtofAppeals(CA)aPetitio
nforCertiorariwith
PrayerforTROandPreliminaryInjunctionandsoughtthedi
smissalofthe
Complaint,onthegroundthatthetrialcourthadnojurisdicti
on. ItcitedSection1
ofPresidentialDecreeNo.1818,whichstates:
Section 1. No Court in the Philippines shall
have jurisdiction to issue any restraining order,
preliminary injunction or preliminary mandatory
injunction in any case, dispute, or controversy
involving an infrastructure project, or a mining, fishery,
forest or other natural resource development project
of the government, or any public utility operated
by the government, including among other public
utilities for transport of the goods or
commodities, stevedoring and arrastre contracts, to
prohibit any person or persons, entity or government
official from proceeding with or continuing the
execution or implementation of any such project, or
the operation of such public utility or pursuing any
lawful activity necessary for such execution,
implementation or operation.
WhilethePetitionwaspendingbeforetheCA,thetrialco
urtorderedthe
issuanceofawritofpreliminaryinjunctiontostopNapocorfr
ominstallinghigh-
voltagecablesandfromenergizingandtransmittinghigh-
voltageelectriccurrent throughthosecables.
OnMay3,2000,theCAreversedthetrialcourt’sOrderon
thegroundthat
Section1ofPresidentialDecree1818clearlyproscribedinj
unctionsagainst
infrastructureprojects.ItfurthercitedSupremeCourtCircu
lars2-91and13-
93datedMarch15,1991,andMarch5,1993,respectively.
PetitionersfiledtheinstantPetition,contendingthatthep
roscriptioninPD1818shouldnotbeappliedtocasesofextr
emeurgency,suchaswhentherightto
healthandsafetywashangingonthebalance.
Issue:Whetherthetrialcourtmaytemporarilyrestrainorpr
eliminarily
enjoinNapocorfromconstructingandoperatingthe29stee
lpolesortowers,
notwithstandingPresidentialDecree1818
Ruling:
The Court granted the
petition.ItheldthattheprohibitioncontainedinPresidential
Decree1818extendedonlytotheissuanceofinjunctionsor
restrainingordersagainst
administrativeacts,incontroversiesinvolvingfactsorthee
xerciseofdiscretionin
technicalcases.Itdidnotcovercontroversiesinvolvingque
stionsoflaw,asthose involvedintheinstantcase.
WhatPresidentialDecree1818aimedtoavertwastheu
ntimelyfrustrationof
governmentinfrastructureprojects,particularly by
provisional remedies.Otherwise,
thegreatergoodwouldsufferfromthedisruptionofthepurs
uitofessential
governmentprojectsorthefrustrationoftheeconomicdev
elopmenteffortofthe
nation.PDNo.1818,however,wasnotmeanttobeablanke
tprohibitionthatwould
disregardthefundamentalrighttothehealth,safetyandwel
l-beingof a community, guaranteedbytheConstitution.
Indeed, the prohibition was not
absolute.Itonlyprohibitedthecourtsfrom
issuinginjunctionsagainstadministrativeactsinvolvingfa
ctsortheexerciseof
discretionintechnicalcases.Outsidethisdimension,theS
upremeCourtdeclaredthat
courtscouldnotbepreventedfromexercisingtheirpowerto
restrainorprohibit
administrativeactsincasesinvolvingquestionsoflaw.
Theinstantcontroversyinvolvedquestionsof
law.Petitionersraisedtheissues of whether
therewasaviolationof their
constitutionallyprotectedrighttohealth,andwhetherresp
ondenthadindeedviolatedtheLocalGovernmentCodepr
ovisiononpriorconsultationwithaffectedcommunities.Th
esequestionsoflawremovedthecasefromtheprotective
mantleofPresidentialDecree1818.
Moreover,theissuancebythetrialcourtofapreli
minaryinjunctionfoundlegal
supportinSection3ofRule58oftheRulesofCourt,which
merelyrequireda
probableviolationoftheapplicant’srightsandatendency
torenderthejudgment
ineffectual.Inthecaseatbar,therewasadequateeviden
ceonrecordtojustifythe
conclusionthattheNAPOCORprojectwouldprobablyi
mperilthehealthandsafetyof petitioners.
First,petitionerspresentedcopiesofstudieslin
kingtheincidenceofillnesses,
suchascancerandleukemia,toexposuretoelectromag
neticfields.
Second,theNapocorbrochureonitsQuezonpo
werprojecthadaprovisionthat
powerlinesshouldbelocatedwithinsafedistancesfromre
sidencesbecauseofthe dangerconcomitantwithhigh-
voltagepower.
Third,documentsonrecordshowedthatrespo
ndenthadmaderepresentations
thatitwaslookingintothepossibilityof relocating
theproject,andthatithadeven undertakenaseriesof
negotiationsandmeetingswithpetitioners.Thesedocum
ents
andnegotiationssuggestedthattheirhealthconcernswer
efarfromimaginary.If
therewasindeednocauseforconcern,itwouldnothaveco
meupwithoptionsto address their woes.Neither would
Representative Escudero have fired away strong
wordsof censure inhisprivilegedspeech.
Whileitwastruethattheissueof
whetherthetransmissionlinesweresafewas
essentiallyevidentiaryinnatureandpertainedtothevery
meritsof theactionbelow,
theCourtfoundthatthepossibilityof
healthrisksfromexposuretoelectromagnetic
radiationwaswithintherealmof ascientificscaleof
probability.Itheldthatthere
wassufficientbasisonrecordengenderingacloudof
doubtoverthedangerposedby
theprojectuponthelivesof
petitioners.Indeed,probabilitywasenoughforinjunction
toissueasaprovisionalremedy.Incontrast,injunctionas
amainactionwasresortedto
whenoneneededtoestablishabsolutecertaintyasbasis
forafinalandpermanent
injunction.Pendingthefinaldeterminationof
thetrialcourtonthemaincase,itwasprudentto preserve
the status quo.
4. G.G. Sportswear v. BDO, G.R. No. 184434, 8
February 2010, 612 SCRA 47
Facts:On April 22, 1994 petitioners G.G. Sportswear
Manufacturing Corp. (G.G. Sportswear) and Naresh
Gidwani mortgaged a lot in Aranda, Makati, and a
house and lot in Bel-Air Village, also in Makati, to
Equitable-PCI Bank, now the respondent Banco de
Oro Unibank, Inc. (BDO), to secure a P20,357,000.00
loan to G.G. Sportswear. On April 25, 1996, to secure
an additional P11,643,000.00 loan that BDO gave
G.G. Sportswear, the parties amended the real estate
mortgages to include such loan. Petitioner G.G.
Sportswear was unable to pay its loans.
On March 15, 2005 respondent BDO told G.G.
Sportswear in a letter that the bank transferred on that
date its past due loan obligation with the bank, totaling
US$12,257,581.31 as of December 31, 2004, to
Philippine Investment One (SPV-AMC), Inc. (PIO),
including all interest, fees, charges, penalties, and
securities/collaterals, if any. This was followed by BDO
Certification[2] dated April 21, 2005 that it has
assigned, conveyed, transferred and sold to PIO, on a
without recourse basis, all its rights, title, benefits and
interest to the Loan Receivables of G.G. Sportswear.
Subsequently, however, respondent BDO
applied with the Ex Officio Sheriff of Makati for the
foreclosure of the properties that petitioners G.G.
Sportswear and Gidwani mortgaged with the bank.
The notice of sheriffs sale scheduled the auction of the
properties on May 31, 2007 but this was subsequently
rescheduled to July 18, 2007. At any rate, the sheriff
auctioned off the Aranda property to BDO on June 21,
2007.
On July 16, 2007, two days before the
rescheduled auction of the Bel-Air property, petitioners
G.G. Sportswear and Gidwani filed an action with the
Regional Trial Court (RTC) of Makati, in Civil Case 07-
631,[4] to annul the foreclosure, hold respondent BDO
in indirect contempt, award damages, and enjoin
further foreclosure by TRO and preliminary injunction.
They alleged that, as a result of BDOs transfer of G.G.
Sportswears loan receivables to PIO in 2005, BDO lost
the right to foreclose.
In its answer, respondent BDO denied
transferring petitioner G.G. Sportswears loan
receivables to PIO, stating that the April 21, 2005
Certification it issued was a mere general certification
that did not specify which of several loan receivables
were sold to PIO. BDO in fact transferred to Philippine
Asset Investment, which entity was subsequently
taken over by respondent PIO, only P290,820.00 out
of G.G. Sportswears total loan.[6] BDO attached
Certifications from itself and from PIO to the effect that
the credits secured by the Aranda and Bel-Air
properties had not been transferred to PIO. The latter
filed an answer of the same tenor.
On August 7, 2007 the RTC issued an
order,[9] denying petitioners G.G. Sportswear and
Gidwanis applications for TRO and preliminary
injunction. They filed a motion for reconsideration and
a motion to inhibit the presiding judge, but on October
11, 2007 the RTC denied both motions. This prompted
G.G. Sportswear and Gidwani to file a special civil
action of certiorari with the Court of Appeals (CA) in
CA-G.R. SP 101799, assailing the RTC orders mainly
based on the proposition that respondent BDO had
lost its right to foreclose the mortgages when it
assigned its rights to PIO.
On June 26, 2008 the CA rendered judgment,
dismissing the petition for lack of merit. It denied on
August 29, 2008 petitioners G.G. Sportswear and
Gidwanis subsequent motion for reconsideration,
prompting them to file the present petition for review.
Issue: Whether or not the CA erred in finding that the
RTC did not gravely abuse its discretion when it
denied petitioners G.G. Sportswear and Gidwanis
application for TRO and preliminary injunction despite
the banks apparent assignment of its credit to another
entity.
Held:Petitioners G.G. Sportswear and Gidwani point
out that BDOs March 15, 2005 letter and its April 21,
2005 certification show that the bank already
transferred to PIO all its rights to the loan receivables
of G.G. Sportswear. Thus, BDO lost its right to
foreclose the mortgages on the properties that secured
the unpaid loans, thus, entitling petitioners to an order
enjoining the foreclosures. Further, petitioners claim
that BDO bloated G.G. Sportswears outstanding
obligation such that it was being made to pay more
through the foreclosure than was actually due.
The test for issuing a TRO or an injunction is
whether the facts show a need for equity to intervene
in order to protect perceived rights in equity.[14] In
general, a higher court will not set aside the trial courts
grant or denial of an application for preliminary
injunction unless it gravely abused its discretion as
when it lacks jurisdiction over the action, ignores
relevant considerations that stick out of the parties
pleadings, sees the facts with a blurred lens, ignores
what is relevant, draws illogical conclusions, or simply
acts in random fashion.
Injunction may be issued only when the
plaintiff appears to be entitled to the main relief he
asks in his complaint. This means that the plaintiffs
allegations should show clearly that he has a cause of
action. This means that he enjoys some right and that
the defendant has violated it. And, where the
defendant is heard on the application for injunction, the
trial court must consider, too, the weight of his
opposition.
Did the allegations of the parties and the
documents they attached to their pleadings give ample
justification for the issuance of a TRO or preliminary
injunction order to stop the foreclosure sale of the Bel-
Air property? Two considerations militate against it:
First. The mortgaged properties were due for
foreclosure. Admittedly, petitioner G.G. Sportswear
had defaulted on the loans secured by the subject
mortgages. Petitioners had, therefore, no right to
complain about losing their properties to foreclosure.
Second. The issue of which party owns the
loan receivables and, consequently, had the right to
foreclose the mortgages is essentially an issue
between BDO and PIO. This issue is the concern of
petitioners G.G. Sportswear and Gidwani but only to
the extent that they are entitled to ensure that the
proceeds of the foreclosure sale were paid to the right
party.
For the above reasons, it cannot be said that
petitioners G.G. Sportswear and Gidwani have
established a right to the main relief they want,
namely, the arrest of the foreclosure sale of their
mortgaged properties after they had admitted not
paying their loans. As for their claim that BDO had
bloated G.G. Sportswears outstanding obligation, the
remedy if this turns out to be true is to direct BDO to
return the excess proceeds with damages as the
circumstances may warrant.
What is more, the provisional remedy of
preliminary injunction may only be resorted to when
there is a pressing necessity to avoid injurious
consequences which cannot be remedied under any
standard of compensation. Here, since there is a valid
cause to foreclose on the mortgages, petitioners G.G.
Sportswear and Gidwani cannot claim that the
irreparable damage they wanted to prevent by their
application for preliminary injunction is the loss of their
properties to auction sale. Their real injury, if it turns
out that the right to foreclose belongs to PIO rather
than to BDO, is payment of the proceeds of the auction
sale to the wrong party rather than to their creditor. But
this kind of injury is purely monetary and is
compensable by an appropriate judgment against
BDO. It is not in any sense an irreparable injury.
5. Borja v. Salcedo, Adm. Matter No. RTJ-03-1746
(formerly OCA IPI No. 10-
1225-RTJ), 26 September 2003, 412 SCRA 110
FACTS:
 In a Complaint, Roger F. Borja accuses
Presiding Judge Zorayda H. Salcedo of the RTC (Br
32) of San Pablo City of gross ignorance of the law
and grave abuse of discretion in issuing a temporary
restraining order (TRO) in Civil Case No. SP-5775
(01), without complying with the 1997 Rules of Civil
Procedure.
 Complainant claims that the procedure
followed by respondent Judge violated Rule 58 Section
4 [b-c-d], 1997 Rules of Civil Procedure on the
following grounds:
(a) Being a multi-sala court, it is the Executive
Judge that may issue an ex-parte TRO good for 72
hours
(b) The notice of raffle was not preceded or
contemporaneously accompanied, by service of
summons, with the complaint or initiatory pleading and
the applicants affidavit and bond.
(c) Respondent Judge who was assigned to
the case did not conduct the required summary
hearing with notice and in the presence of the parties
within 24 hours after the Sheriffs return of service
and/or the records are received by the branch selected
by raffle.
(d) The TRO was issued ex-parte without the
required bond and without alleging that the matter is of
extreme urgency and applicant would suffer grave or
irreparable injury.
(e) Complainant did not ask for the issuance of
a preliminary injunction on January 4, 2001 in the
morning.
 Court Administrator Alfredo Benipayo,
informed complainant that the subject matter of his
complaint is judicial in nature hence it shall be denied
due course as there are judicial remedies available
under the Rules of Court yet to be exhausted.
 Complainant argues that when the law
transgressed is elementary, as in the instant case, the
failure to know or observe it constitutes gross
ignorance of the law
 respondent judge submitted her comment and
apologized for the delay in its submission explaining
that she, as well as her husband, underwent cataract
operation
 She likewise emphasized her denial of
partiality, ignorance of the law, bias and so forth being
attributed to her by complainant for the reverse is true
as it has been (her) desire to always observe
impartiality, fairness, and dedication in the
administration of justice
 Judge Salcedo issued a Temporary
Restraining Order
 Defendant Borja filed a Motion to Inhibit Judge
Herradura [Salcedo] from the case and which the latter
granted
 Defendant Brion filed a Motion to Dissolve
Temporary Restraining Order anchored on the ground
that the TRO was issued in violation of Rule 58,
Section 4(d) of the 1997 Rules of Civil Procedure and
is therefore a patent nullity
 The undersigned resolved the Motion to
Dissolve Temporary Restraining Order; The
undersigned dissolved the TRO because it was issued
in violation of Supreme Court
 The undersigned humbly submits that as
aforestated, Judge Salcedo inhibited herself from the
case which was thereafter re-raffled to the sala of the
undersigned. The motion to Dissolve TRO had to be
resolved.
 this Court referred the case to the Office of the
Court Administrator for evaluation, report and
recommendation
 R judge failed to comply with Administrative
Circular No. 20-95. No order setting a summary
hearing on the application for temporary restraining
order was furnished the defendants
 A TRO may however be issued ex-parte if the
matter is of such extreme urgency that grave injustice
and irreparable injury will arise unless it is issued
immediately. Under such circumstances, the executive
judge shall issue the TRO effective only for seventy-
two (72) hours from its issuance. But such a
procedure is not applicable to respondent judge
because she is not the executive judge of RTC,
San Pablo City
 Recommendation of OCA
(1) OCA IPI No. 01-1225-RTJ be RE-DOCKETED as a
regular administrative matter;
(2) Respondent Judge Zorayda H. Salcedo, RTC,
Branch 32, San Pablo City be fined for her failure to
comply with Administrative Circular No. 20-95, with a
warning that a repetition of similar acts in the future
shall be dealt with more severely; and
(3) The explanation of Judge Marivic T. Balisi-Umali,
then RTC Judge, Branch 30, San Pablo City
be ACCEPTED for being meritorious
Issue: Whether the TRO can be extended for another
period until a hearing in the pending application for
preliminary injunction can be conducted
Ruling:
 The application for a TRO shall be acted upon
only after all parties are heard in a summary hearing
conducted within twenty-four (24) hours after the
records are transmitted to the branch selected by
raffle. The records shall be transmitted immediately
after raffle.
 A TRO can be issued ex parte if the matter is
of such extreme urgency that grave injustice and
irreparable injury will arise unless it is issued
immediately. Under such circumstance, the executive
judge shall issue the TRO effective only for seventy-
two (72) hours from its issuance. The executive judge
is then required to summon the parties to a
conference, during which the case should be raffled in
their presence. Before the expiry of the seventy-two
hours, the presiding judge to whom the case was
raffled shall conduct a summary hearing to determine
whether the TRO can be extended for another period
until a hearing on the pending application for
preliminary injunction can be held
 In the present case, there is neither allegation
nor proof that respondent judge was motivated by bad
faith, fraud, dishonesty, corruption or any other ill-
motive.
 Where this Court pronounced that the failure of
respondent therein, as an Executive Judge, to abide
by Administrative Circular No. 20-95 in issuing the
TRO constituted grave abuse of authority, misconduct,
and conduct prejudicial to the proper administration of
justice for which reason, a fine of P5,000.00 was
imposed on respondent judge
there is neither allegation nor proof that respondent
judge was motivated by bad faith, fraud, dishonesty,
corruption or any other ill-motive
 Respondent judge had earlier been apprised
of the provisions of Administrative Circular No. 20-95
and therefore, it cannot be said that she is ignorant of
the law. For her conscious disregard of a a basic rule
on the issuance of a TRO, Judge Salcedo must be
held administratively liable not for gross ignorance of
the law but for grave abuse of authority and conduct
prejudicial to the proper administration of justice
6. Solid Builders, Inc. v. China Banking Corp., G.R.
No. 179665, 3 April 2013, 695
SCRA 101
Facts: China Banking Corporation (CBC) granted
several loans to Solid Builders, Inc. (SBI). To secure
the loans, Medina Foods Industries, Inc. (MFII)
executed in CBC’s favor several surety agreements
and contracts of real estate mortgage over parcels of
land in the Loyola Grand Villas in Quezon City and
New Cubao Central in Cainta, Rizal. Subsequently,
SBI proposed to CBC a scheme through which SBI
would sell the mortgaged properties and share the
proceeds with CBC on a 50-50 basis until such time
that the whole obligation would be fully paid. SBI also
proposed that there be partial releases of the
certificates of title of the mortgaged properties without
the burden of updating interests on all loans.
In a letter dated March 20, 2000 addressed to
CBC, SBI requested the restructuring of its loans, a
reduction of interests and penalties.
In response, CBC sent SBI a letter dated April
17, 2000 stating that the loans had been completely
restructured effective March 1, 1999 when SBI signed
a new promissory note. Since interest payment has not
been made, no re-pricing is possible.
Subsequently, in a letter dated September 18, 2000,
CBC demanded SBI to settle its outstanding account
within ten days from receipt thereof.
On October 5, 2000, claiming that the
interests, penalties and charges imposed by CBC were
iniquitous and unconscionable and to enjoin CBC from
initiating foreclosure proceedings, SBI and MFII filed a
Complaint “To Compel Execution of Contract and for
Performance and Damages, With Prayer for Writ of
Preliminary Injunction and Ex-Parte Temporary
Restraining Order” in the Regional Trial Court (RTC) of
Pasig City which was granted.
Here, SBI and MFII basically claim a right to
have their mortgaged properties shielded from a
possible foreclosure by CBC on the ground that the
interest rate and penalty charges imposed by CBC on
the loans availed of by SBI are iniquitous and
unconscionable.
ISSUE: Whether or not plaintiffs have the right to ask
for an injunctive writ in order to prevent defendant
bank from taking over their properties.
Held: NO. This Court has recently reiterated the
general principles in issuing a writ of preliminary
injunction in Palm Tree Estates, Inc. v. Philippine
National Bank:
At times referred to as the “Strong Arm of
Equity,” we have consistently ruled that there is no
power the exercise of which is more delicate and
which calls for greater circumspection than the
issuance of an injunction. It should only be extended in
cases of great injury where courts of law cannot afford
an adequate or commensurate remedy in damages; “in
cases of extreme urgency; where the right is very
clear; where considerations of relative inconvenience
bear strongly in complainant’s favor; where there is a
willful and unlawful invasion of plaintiff’s right against
his protest and remonstrance, the injury being a
continuing one, and where the effect of the mandatory
injunction is rather to reestablish and maintain a
preexisting continuing relation between the parties,
recently and arbitrarily interrupted by the defendant,
than to establish a new relation.”
A writ of preliminary injunction is an
extraordinary event which must be granted only in the
face of actual and existing substantial rights. The duty
of the court taking cognizance of a prayer for a writ of
preliminary injunction is to determine whether the
requisites necessary for the grant of an injunction are
present in the case before it. In this connection, a writ
of preliminary injunction is issued to preserve the
status quo ante, upon the applicant’s showing of two
important requisite conditions, namely: (1) the right to
be protected exists prima facie, and (2) the acts sought
to be enjoined are violative of that right. It must be
proven that the violation sought to be prevented would
cause an irreparable injury.
The basis of the right claimed by SBI and MFII
remains to be controversial or disputable as there is
still a need to determine whether or not, upon
consideration of the various circumstances
surrounding the agreement of the parties, the interest
rates and penalty charges are unconscionable.
Therefore, such claimed right cannot be considered
clear, actual and subsisting. In the absence of a clear
legal right, the issuance of the injunctive writ
constitutes grave abuse of discretion.
In addition, the default of SBI and MFII to pay
the mortgage indebtedness disqualifies them from
availing of the equitable relief that is the injunctive writ.
SBI’s default or failure to settle its obligation is a
breach of contractual obligation which tainted its hands
and disqualified it from availing of the equitable
remedy of preliminary injunction.
As SBI is not entitled to the issuance of a writ
of preliminary injunction, so is MFII. The accessory
follows the principal. The accessory obligation of MFII
as accommodation mortgagor and surety is tied to
SBI’s principal obligation to CBC and arises only in the
event of SBI’s default.
Rule 60 – Replevin
1. Rivera v. Vargas, G.R. No. 165895, 5 June 2009,
588 SCRA 529
FACTS:Petitioner avers that the writ of replevin was
served upon and signed by the security guard on duty
where the rock-crushing plant to be seized was located
contrary to the sheriff’s return stating that both the writ
and the summons was served upon petitioner. Nine (9)
days after the writ was served on the security guard,
petitioner filed an answer to the complaint
accompanied by a prayer for the approval of her
redelivery bond. The RTC, however, denied the
redelivery bond for having been filed beyond the five-
day mandatory period prescribed in Sections 5 and 6
of Rule 60.
 Petitioner argues in the case at bar via the
petition on Rule 45 that the RTC committed grave
abuse of discretion in denying her counterbond on the
ground that it was filed out of time. She contends that
the mandatory five-day period did not even begin to
run in this case due to the improper service of the writ
of replevin, contrary to Section 4 of Rule 60.
Issue: WON the denial of counterbond filed beyond
the 5 day mandatory period is erroneous considering
the writ was improperly served.
Held: Yes.Before a final judgment, property cannot be
seized unless by virtue of some provision of law. The
Rules of Court, under Rule 60, authorizes such seizure
in cases of replevin. However, a person seeking a
remedy in an action for replevin must follow the course
laid down in the statute, since the remedy is penal in
nature. When no attempt is made to comply with the
provisions of the law relating to seizure in this kind of
action, the writ or order allowing the seizure is
erroneous and may be set aside on motion by the
adverse party.
 The process regarding the execution of the
writ of replevin in Section 4 of Rule 60 is unambiguous:
the sheriff, upon receipt of the writ of replevin and prior
to the taking of the property, must serve a copy thereof
to the adverse party (petitioner, in this case) together
with the application, the affidavit of merit, and the
replevin bond. The reasons are simple, i.e., to provide
proper notice to the adverse party that his property is
being seized in accordance with the court’s order upon
application by the other party, and ultimately to allow
the adverse party to take the proper remedy
consequent thereto.
 Service of the writ upon the adverse party is
mandatory in line with the constitutional guaranty on
procedural due process and as safeguard against
unreasonable searches and seizures.
 In the case at bar since the writ was invalidly
served, petitioner is correct in contending that there is
no reckoning point from which the mandatory five-day
period shall commence to run.
 The writ must satisfy proper service in order to
be valid and effective: i.e. it should be directed to the
officer who is authorized to serve it; and it should be
served upon the person who not only has the
possession or custody of the property involved but who
is also a party or agent of a party to the action.
Consequently, a trial court is deemed to have acted
without or in excess of its jurisdiction with respect to
the ancillary action of replevin if it seizes and detains a
personalty on the basis of a writ that was improperly
served, such as what happened in this case.
Petitioner’s proper remedy should have been to file a
motion to quash the writ of replevin or a motion to
vacate the order of seizure. Nevertheless, petitioner’s
filing of an application for a redelivery bond, while not
necessary, did not thereby waive her right to question
the improper service.
The trial for the main action shall continue.
Respondent may, however, file a new application for
replevin should he choose to do so.
Rule 61 - Support Pendente Lite
1. Lam v. Chua, G.R. No. 131286, 18 March 2004,
426 SCRA 29
Facts:The case commenced on March 11, 1994 upon
the filing of a petition for declaration of nullity of
marriage by Adriana Chua against Jose Lam in the
Regional Trial Court of Pasay City (Branch
109). Adriana alleged in the petition that: she and Jose
were married on January 13, 1984; out of said
marriage, they begot one son, John Paul Chua Lam;
Jose was psychologically incapacitated to comply with
the essential marital obligations of marriage but said
incapacity was not then apparent; such psychological
incapacity of Jose became manifest only after the
celebration of the marriage when he frequently failed
to go home, indulged in womanizing and irresponsible
activities, such as, mismanaging the conjugal
partnership of gains; in order to save what was left of
the conjugal properties, she was forced to agree with
Jose on the dissolution of their conjugal partnership of
gains and the separation of present and future
properties; said agreement was approved by the
Regional Trial Court of Makati City (Branch 149) in a
Decision dated February 28, 1994; they had long been
separated in bed and board; they have agreed that the
custody of their child will be with her, subject to
visitation rights of Jose. Adriana prayed that the
marriage between her and Jose be declared null and
void but she failed to claim and pray for the support of
their child, John Paul.
Summons was duly served on Jose Lam
on March 22, 1994. Despite the lapse of fifteen days
after service of summons, no responsive pleading was
filed by him. Hence, the trial court issued an Order
dated April 13, 1994, directing Asst. City Prosecutor
Bonifacio Barrera to conduct an investigation for
determination whether or not there was collusion
between the parties and to submit his report
thereon. On April 28, 1994, Asst. City Prosecutor
Barrera filed his Report stating that there seems to be
no collusion between the parties.
The trial court then set the case for
hearing. The lone witness was Adriana herself. She
testified that her marriage with Jose was arranged by
her parents in the traditional Chinese way; that her
married life was abnormal because Jose very seldom
came home, never worked for a living and instead kept
asking for money from her to buy his sports cars; that
she was also the one spending for all the expenses of
their only child, John Paul. After her testimony, counsel
for Adriana formally offered the documentary evidence.
No evidence was presented regarding the amount of
support needed by John Paul or the capacity of Jose
to give support.
On June 23, 1994, Adriana filed an Urgent
Motion to Re-Openon the ground that she was able to
secure additional new evidence which were significant,
material and indispensable. On July 6, 1994, the trial
court granted the motion to re-open the case and held
a hearing for the reception of additional evidence. The
Pasay RTC admitted into evidence the Marriage
Contract dated May 25, 1977 between Jose and one
Celia Santiago, and another Marriage Contract
dated May 6, 1982 between Jose and one Evan
Lock, showing that Jose had been married twice
before he married Adriana in 1984.
RTC- declares the marriage between petitioner
Adriana Chua and respondent Jose Lam null and void
for being bigamous by nature.
On November 3, 1994, Jose filed a Motion for
Reconsideration thereof but only insofar as the
decision awarded monthly support to his son in the
amount of P20,000.00. He argued that there was
already a provision for support of the child as
embodied in the decision dated February 28, 1994 of
the Makati RTC wherein he and Adriana agreed to
contribute P250,000.00 each to a common fund for the
benefit of the child, to wit:
Nothing herein shall diminish the rights and
obligations of both parties with respect to their son. In
the best interest of the child, the Second Party shall
retain care and custody, subject to visitation rights by
the First Party to be exercised through mutual
arrangements.
It is hereby agreed by the First Party and the
Second Party that the First Party and the Second Party
shall initially contribute P250,000.00 each to a
common fund, to be increased as required, to be used
solely and exclusively for the benefit of their son. Said
common fund shall be managed and administered by
the Second Party, subject to periodic accounting, until
the son reaches majority age.
Jose further alleged in his motion that his
contribution to the common fund had even amounted
to P500,000.00.
On August 22, 1995, the Pasay RTC issued an
Order denying Jose Lams motion for reconsideration
ruling that the compromise agreement entered into by
the parties and approved by the Makati RTC before
the marriage was declared null and void ab initio by
the Pasay RTC, is of no moment and cannot limit
and/or affect the support ordered by the latter court.
CA- On appeal, the CA affirmed the RTC’s
decision in all respect.
Issue:Whether the compromise agreement between
petitioner and Adriana is a bar to any further award of
support in favor of their child John Paul?
Held:Thus, there is no merit to the claim of Jose that
the compromise agreement between him and Adriana,
as approved by the Makati RTC and embodied in its
decision dated February 28, 1994 in the case for
voluntary dissolution of conjugal partnership of gains,
is a bar to any further award of support in favor of their
child John Paul. The provision for a common fund for
the benefit of their child John Paul, as embodied in the
compromise agreement between herein parties which
had been approved by the Makati RTC, cannot be
considered final and res judicata since any judgment
for support is always subject to modification,
depending upon the needs of the child and the
capabilities of the parents to give support.
Having settled the issue on the authority of the
trial court to award support for the child in an action for
declaration of nullity of marriage of the childs parents,
this Court will now discuss the propriety of the
proceedings conducted by the Pasay RTC and the
decision it rendered, as affirmed by the Court of
Appeals.
The Court notes four circumstances that taint
the regularity of the proceedings and the decision
rendered by the trial court.
First, the only ground alleged in the petition for
declaration of nullity of marriage filed by Adriana with
the Pasay RTC is the psychological incapacity of Jose
without any prayer for the support of her child. Adriana
presented, formally offered her evidence in support of
the petition and submitted the case for decision as
of May 12, 1994.[14] But on a motion to re-open filed
by her on June 23, 1994, the trial court set the case for
reception of evidence on July 6, 1994 and
subsequently allowed Adriana to present evidence of
two previous marriages contracted by Jose with other
women to prove that the marriage between Adriana
and Jose was null and void for being bigamous. It is
only at the July 6, 1994 hearing that respondent
Adriana first claimed support for John Paul when she
testified in open court.
The petition of Adriana was, in effect,
substantially changed by the admission of the
additional evidence. The ground relied on for nullity of
the marriage was changed from the psychological
incapacity of Jose to that of existence of previous
marriages of Jose with two different women with an
additional claim for support of the child. Such
substantial changes were not reflected in the petition
filed with the trial court, as no formal amendment was
ever made by Adriana except the insertion of the
handwritten phrase And for respondent to support the
child of petitioner in an amount this Honorable Court
may deem just and reasonable found at the ultimate
paragraph of the petition, as allowed by the Pasay
RTC. There is nothing on record to show that petitioner
Jose was notified of the substantial changes in the
petition of Adriana.
Second, the Pasay RTC did not give Jose an
opportunity to be present on July 6, 1994 for the
presentation of evidence by Adriana and to refute the
same. Although copy of the motion filed on June 23,
1994 with a notice of hearing on June 27, 1994 was
sent to Jose, the record does not show that he
received the notice in due time; neither does the
record show that he was notified of the subsequent
hearing held on July 6, 1994 where Adriana presented
the marriage certificates and claimed for the support of
their child sans the presence of Jose.
Third, the records do not show that petitioner
was sent a copy of the Order dated July 6,
1994 wherein the trial court granted the Urgent Motion
to Re-Open of respondent Adriana and forthwith
allowed her to present her evidence to prove that
petitioner herein contracted previous marriages with
different women.
Fourth, the evidence presented by respondent
regarding her claim for support for John Paul is
glaringly insufficient and cannot be made a valid basis
upon which the Pasay RTC could have determined the
monthly amount of P20,000.00 for the support to be
given to John Paul by petitioner Jose.
A party who has been declared in default is
entitled to service of substantially amended or
supplemental pleadings.Considering that in cases of
declaration of nullity of marriage or annulment of
marriage, there can be no default pursuant to Section
6, Rule 18 of the Revised Rules of Courtin relation to
Article 48 of the Family Code, it is with more reason
that petitioner should likewise be entitled to notice of
all proceedings.
Furthermore, the lower courts are reminded of the
ruling of the Court in Asian Transmission Corporation
vs. Canlubang Sugar Estates,to wit:
It is a general principle of law that a court
cannot set itself in motion, nor has it power to decide
questions except as presented by the parties in their
pleadings. Anything that is decided beyond them is
coram non-judice and void. Therefore where a court
enters a judgment or awards relief beyond the prayer
of the complaint or the scope of its allegations the
excessive relief is not merely irregular but is void for
want of jurisdiction, and is open to collateral attack.
The appellate court also ruled that a judgment
of a court upon a subject within its general jurisdiction,
but which is not brought before it by any statement or
claim of the parties, and is foreign to the issues
submitted for its determination, is a nullity. (Emphasis
supplied)
Pursuant to the foregoing principle, it is a
serious error for the trial court to have rendered
judgment on issues not presented in the pleadings as
it was beyond its jurisdiction to do so. The amendment
of the petition to reflect the new issues and claims
against Jose was, therefore, indispensable so as to
authorize the court to act on the issue of whether the
marriage of Jose and Adriana was bigamous and the
determination of the amount that should have been
awarded for the support of John Paul. When the trial
court rendered judgment beyond the allegations
contained in the copy of the petition served upon Jose,
the Pasay RTC had acted in excess of its jurisdiction
and deprived petitioner Lam of due process.
 Insofar as the declaration of nullity of the
marriage between Adriana and Jose for being
bigamous is concerned, the decision rendered by the
Pasay RTC could be declared as invalid for having
been issued beyond its jurisdiction. Nonetheless,
considering that Jose, did not assail the declaration of
nullity of his marriage with Adriana in his motion for
reconsideration which he filed with the Pasay RTC. In
the petitions he filed in the Court of Appeals and with
us, he likewise did not raise the issue of jurisdiction of
the Pasay RTC to receive evidence and render
judgment on his previous marriages with other woman
which were not alleged in the petition filed by
Adriana. Petitioner Jose is estopped from questioning
the declaration of nullity of his marriage with Adriana
and therefore, the Court will not undo the judgment of
the Pasay RTC declaring the marriage of Adriana and
Jose null and void for being bigamous. It is an
axiomatic rule that while a jurisdictional question may
be raised at any time, this, however, admits of an
exception where estoppel has supervened.
Consequently, the Court will only resolve the
lone issue raised by Jose in the present petition for
review on certiorari which is the award of support for
his child, John Paul.
The matter of support is a question that may
be raised and threshed out before the Makati RTC as it
was the court that approved the Compromise
Agreement, or before the Pasay RTC where the
petition for declaration of nullity or annulment of
marriage is filed. In the interest of orderly
administration of justice, the Court deems it proper that
the issue on support should be resolved by the Pasay
RTC where the claim for support of the child was
initiated by Adriana.
The trial courts action of merely ordering in
open court during the July 6, 1994 hearing that a
prayer for support be written and inserted in the
petition filed by respondent Adriana does not constitute
proper amendment and notice upon petitioner Jose.
Consequently, herein petitioner Jose was deprived of
due process when the trial court proceeded to hear the
case on a motion to re-open and render judgment
without giving Jose the requisite notice and the
opportunity to refute the new claim against him.
Verily, the manner by which the trial court
arrived at the amount of support awarded to John Paul
was whimsical, arbitrary and without any basis.
Such being the case, the Court has no other
recourse but to reverse the decision of the Court of
Appeals and Pasay RTC insofar as the award of
support is concerned and order the remand of the case
to Pasay RTC for further proceedings as to the issue
regarding support.
WHEREFORE, the petition for review on
certiorari is GRANTED. The Decision and Resolution
of the Court of Appeals in CA-G.R. CV. No. 51107,
dated June 11, 1997 and October 27,
1997, dismissing the appeal and denying the motion
for reconsideration, respectively, are hereby SET
ASIDE but only insofar as the award of support in favor
of John Paul Chua Lam is concerned. The Decision
dated August 4, 1994 and the Order of the Regional
Trial Court of Pasay City (Branch 109), dated August
22, 1995, are REVERSED and SET ASIDE for being
null and void, likewise only insofar as the matter on
support is concerned.
Let the records of Civil Case No. 94-0331 be
remanded to the Regional Trial Court of Pasay City
(Branch 109) which is DIRECTED to reopen the trial of
Civil Case No. 94-0331 with respect to the claim of
Adriana Chua against Jose Lam for the support of
John Paul Chua Lam and conduct hearings for further
reception of evidence for the proper determination of
the proper amount of support to be awarded to the
child John Paul Chua Lam.
Rule 62 – Interpleader
1. Makati Dev’t. Corp. v. Tanjuatco, G.R. L-26443,
25 March 1969, 27 SCRA 401
Facts:On February 21, 1963, said plaintiff and
defendant Pedro C. Tanjuatco entered into a contract
whereby the latter bound himself to construct a
reinforced concrete covered water reservoir, office and
pump house and water main at Forbes Park, Makati,
Rizal, furnishing, inter alia, the materials necessary
therefor. Before making the final payment of the
consideration agreed upon, plaintiff inquired from the
suppliers of materials, who had called its attention to
unpaid bills therefor of Tanjuatco, whether the latter
had settled his accounts with them. In response to this
inquiry, Concrete Aggregates, Inc. — hereinafter
referred to as the Supplier — made a claim in the sum
of P5,198.75, representing the cost of transit-mixed
concrete allegedly delivered to Tanjuatco. With his
consent, plaintiff withheld said amount from the final
payment made to him and, in view of his subsequent
failure to settle the issue thereon with the Supplier, on
September 16, 1955, plaintiff instituted the present
action, in the Court of First Instance of Rizal, against
Tanjuatco and the Supplier, to compel them "to
interplead their conflicting claims."
On October 4, 1965, Tanjuatco moved to
dismiss the case, upon the ground that the court had
no jurisdiction over the subject-matter of the litigation,
the amount involved therein being less than
P10,000.00. 1 Finding this motion "to be well-taken",
the lower court granted the same, over plaintiffs
opposition thereto, and, accordingly, issued an order,
dated November 16, 1965, dismissing the case,
without costs. Hence, this appeal, in which plaintiff
maintains that the subject-matter of this litigation is not
the aforementioned sum of P5,198.75, but the right to
compel the defendants "to litigate among themselves"
in order to protect the plaintiff "against a double
vexation in respect to one liability."
Held: We find no merit in this contention. There is no
question in this case that plaintiff may compel the
defendants to interplead among themselves,
concerning the aforementioned sum of P5,198.75. The
only issue is who among the defendants is entitled to
collect the same. This is the object of the action, which
is not within the jurisdiction of the lower court. As a
matter of fact, on May 25, 1966 the Supplier sued
Tanjuatco, in Civil Case No. 149173 of the Municipal
Court of Manila, for the recovery of said amount of
P5,198.75, and the decision therein will settle the
question as to who has a right to the sum withheld by
plaintiff herein.
The latter relies upon Rule 63 of the present
Rules of Court, prescribing the procedure in cases of
interpleading, and section 19 of Rule 5 of said Rules of
Court, which, unlike section 19 of Rule 4 of the Old
Rules, omits the Rules on Interpleading among those
made applicable to inferior courts. This fact does not
warrant, however, the conclusion drawn therefrom by
plaintiff herein. To begin with, the jurisdiction of our
courts over the subject-matter of justiciable
controversies is governed by Rep. Act No. 296, as
amended, pursuant to which 2 municipal courts shall
have exclusive original jurisdiction in all civil cases "in
which the demand, exclusive of interest, or the value of
the property in controversy", amounts to not more than
"ten thousand pesos." Secondly, "the power to define,
prescribe, and apportion the jurisdiction of the various
courts" belongs to Congress 3 and is beyond the rule-
making power of the Supreme Court, which is limited
to matters concerning pleading, practice, and
procedure in all courts, and the admission to the
practice of law. 4 Thirdly, the failure of said section 19
of Rule 5 of the present Rules of Court to make its
Rule 63, on interpleading, applicable to inferior courts,
merely implies that the same are not bound to follow
Rule 63 in dealing with cases of interpleading, but may
apply thereto the general rules on procedure
applicable to ordinary civil action in said courts.
2. Lui Enterprises v. Zuellig Pharma, G.R. No.
193494, 12 March 2014, 719 SCRA
88
FACTS:
 On March 9, 1995, Lui Enterprises, Inc. and
Zuellig Pharma Corporation entered into a 10-year
contract of lease4over a parcel of land located in Barrio
Tigatto, Buhangin, Davao City.
 Zuellig Pharma received a letter from the
Philippine Bank of Communications. Claiming to be the
new owner of the leased property, the bank asked
Zuellig Pharma to pay rent directly
 Due to the conflicting claims of Lui Enterprises
and the Philippine Bank of Communications over the
rental payments, Zuellig Pharma filed a complaintfor
interpleader
 Zuellig Pharma prayed that it be allowed to
consign in court its succeeding monthly rental
payments and that Lui Enterprises and the Philippine
Bank of Communications be ordered to litigate their
conflicting claims
 Philippine Bank of Communications filed its
answer
 Lui Enterprises filed a motion to dismisson the
ground that Zuellig Pharma’s alleged representative
did not have authority to file the complaint for
interpleader on behalf of the corporation
 Atty. Ana L.A. Peralta was only authorized to
"initiate and represent [Zuellig Pharma] in the civil
proceedings for consignation of rental payments to be
filed against Lui Enterprises, Inc. and/or [the Philippine
Bank of Communications
 Lui Enterprises filed nullification case against
the Philippine Bank of Communications with respect to
several properties it dationed to the bank in payment of
its obligations
 The property leased by Zuellig Pharma was
among those allegedly dationed to the Philippine Bank
of Communications
 Lui Enterprises cited a writ of preliminary
injunction
 By virtue of the writ of preliminary injunction,
Lui Enterprises argued that it should continue
collecting the rental payments from its lessees until the
nullification of deed of dation in payment case was
resolved
 Judge orders, the Philippine Bank of
Communications and all its attorneys, representatives,
agents and any other persons assisting the bank, are
directed to restrain from conducting auction sale on the
Properties of Lui Enterprises
 Zuellig Pharma filed its oppositionto the motion
to dismiss. It argued that the motion to dismiss should
be denied for having been filed late
 Under Rule 16, Section 1 of the 1997 Rules of
Civil Procedure, a motion to dismiss should be filed
within the required time given to file an answer to the
complaint, which is 15 days from service of summons
on the defendant
 Lui Enterprises’ claim that the interpleader
case was filed without authority, Zuellig Pharma
argued that an action interpleader "is a necessary
consequence of the action for consignation
 With respect to the nullification of deed of
dation in payment case, Zuellig Pharma argued that its
pendency did not bar the filing of the interpleader case.
 Under the writ of preliminary injunction, auction
sale of Lui Enterprises’ properties, the proceeds of
which were supposed to satisfy its obligations to the
Philippine Bank of Communications
 The Regional Trial Court of Makati found that
Lui Enterprises failed to file its motion to dismiss within
the reglementary period
 Lui Enterprises did not move for the
reconsideration thus heard the interpleader case
without Lui Enterprises’ participation
 Despite having been declared in default, Lui
Enterprises filed the manifestation with prayer
 Plaintiffs move for execution or implementation
of the Order
 status quo order was a necessary implement
of the writ of preliminary injunction follows the plaintiff's
right to collect and receive rental payments which he
enjoyed prior to the filing of this case, must be
respected and protected and maintained until the case
is resolved
 Status quo simply means the last actual
peaceable uncontested status that preceded the actual
controversy
 Lui Enterprises appealed to the Court of
Appeals, however found insufficient
 As to the denial of Lui Enterprises’ motion to
dismiss, the Court of Appeals sustained the trial court.
The Court of Appeals found that Lui Enterprises filed
its motion to dismiss four days late
 With respect to Lui Enterprises’ motion to set
aside order of default, the Court of Appeals found that
Lui Enterprises failed to show the excusable
negligence that prevented it from filing its motion to
dismiss on time
 the Court of Appeals sustained the trial court
since "Zuellig Pharma x x x was constrained to file the
action for interpleader with consignation in order to
protect its interests
 Lui Enterprises filed a motion for
reconsideration
Issue:Whether the annulment of deed of dation in
payment pending in the Regional Trial Court of Davao
barred the subsequent filing of the interpleader case in
the Regional Trial Court of Makati
Ruling:The nullification of deed in dation in payment
case did not bar the filing of the interpleader case. Litis
pendentia is not present in this case.
 Lui Enterprises allegedly filed for nullification of
deed of dation in payment with the Regional Trial
Court of Davao. It sought to nullify the deed of dation
in payment through which the Philippine Bank of
Communications acquired title over the leased
property. Lui Enterprises argued that this pending
nullification case barred the Regional Trial Court of
Makati from hearing the interpleader case. Since the
interpleader case was filed subsequently to the
nullification case, the interpleader case should be
dismissed.
Under Rule 16, Section 1, paragraph (e) of the 1997
Rules of Civil Procedure, a motion to dismiss may be
filed on the ground of litis pendentia:
Section 1. Grounds. – Within the time for but before
filing the answer to the complaint or pleading asserting
a claim, a motion to dismiss may be made on any of
the following grounds:
(e)That there is another action pending between the
same parties for the same cause;
Litis pendentia is Latin for "a pending suit.” It exists
when "another action is pending between the same
parties for the same cause of actionx x x.” The
subsequent action is "unnecessary and
vexatious"142 and is instituted to "harass the
respondent [in the subsequent action]."
The requisites of litis pendentia are:
(1)Identity of parties or at least such as
represent the same interest in both actions;
(2)Identity of rights asserted and reliefs prayed
for, the reliefs being founded on the same
facts; and
(3)The identity in the two cases should be
such that the judgment that may be rendered
in one would, regardless of which party is
successful, amount to res judicata in the
other.144
All of the requisites must be present.145 Absent one
requisite, there is no litis pendentia.146
In this case, there is no litis pendentia since there is no
identity of parties in the nullification of deed of dation in
payment case and the interpleader case. Zuellig
Pharma is not a party to the nullification case filed in
the Davao trial court.
 There is also no identity of rights asserted and
reliefs prayed for. Lui Enterprises filed the first case to
nullify the deed of dation in payment it executed in
favor of the Philippine Bank of Communications.
Zuellig Pharma subsequently filed the interpleader
case to consign in court the rental payments and
extinguish its obligation as lessee. The interpleader
case was necessary and was not instituted to harass
either Lui Enterprises or the Philippine Bank of
Communications.
Thus, the pending nullification case did not bar the
filing of the interpleader case.
 Lui Enterprises cited Progressive Development
Corporation, Inc. v. Court of Appeals147 as authority to
set aside the subsequently filed interpleader case. In
this cited case, petitioner Progressive Development
Corporation, Inc. entered into a lease contract with
Westin Seafood Market, Inc. The latter failed to pay
rent. Thus, Progressive Development Corporation, Inc.
repossessed the leased premises, inventoried the
movable properties inside the leased premises, and
scheduled the public sale of the inventoried properties
as they agreed upon in their lease contract.
 In this case, the nullification of deed of dation
in payment case was filed by Lui Enterprises against
the Philippine Bank of Communications. The
interpleader case was filed by Zuellig Pharma against
Lui Enterprises and the Philippine Bank of
Communications. A different plaintiff filed the
interpleader case against Lui Enterprises and the
Philippine Bank of Communications. Thus, there is no
identity of parties, and the first requisite of litis
pendentia is absent.
Since two requisites of litis pendentia are absent, the
nullification of deed of dation in payment case did not
bar the filing of the interpleader case.
Rule 63 - Declaratory Relief and Similar Remedies
1. Aquino v. Malay, Aklan, G.R. No. 211356, 29
September 2014, 737 SCRA 145
FACTS: Petitioner is the president and chief executive
officer of Boracay Island West Cove Management
Philippines, Inc. (Boracay West Cove). On January 7,
2010, the company applied for a zoning compliance
with the municipal government of Malay, Aklan. While
the company was already operating a resort in the
area, and the application sought the issuance of a
building permit covering the construction of a three-
storey hotel over a parcel of land measuring 998 sqm.
located in Sitio Diniwid, Barangay Balagab, Boracay
Island, Malay, Aklan, which is covered by a Forest
Land Use Agreement for Tourism Purposes (FLAgT)
issued by the Department of Environment and Natural
Resources (DENR) in favor of Boracay West Cove.
Through a Decision on Zoning dated January
20, 2010, the Municipal Zoning Administrator denied
petitioner’s application on the ground that the
proposed construction site was within the “no build
zone” demarcated in Municipal Ordinance 2000-131
(Ordinance).
Petitioner appealed the denial action to the
Office of the Mayor but despite follow up, no action
was ever taken by the respondent mayor. A Cease
and Desist Order was issued by the municipal
government, enjoining the expansion of the resort, and
on June 7, 2011, the Office of the Mayor of Malay,
Aklan issued the assailed EO 10, ordering the closure
and demolition of Boracay West Cove’s hotel.
Petitioner filed a Petition for Certiorari with
prayer for injunctive relief with the CA Alleging that the
order was issued and executed with grave abuse of
discretion.
PETITIONER CONTENTION: The hotel
cannot summarily be abated because it is not a
nuisance per se, given the hundred million peso-worth
of capital infused in the venture. And the Municipality
of Malay, Aklan should have first secured a court order
before proceeding with the demolition.
RESPONDENTS CONTENTION: The
demolition needed no court order because the
municipal mayor has the express power under the
Local Government Code (LGC) to order the removal of
illegally constructed buildings.
CA RULING: The CA dismissed the petition
and ruled that the special writ of certiorari can only be
directed against a tribunal, board, or officer exercising
judicial or quasi-judicial functions and since the
issuance of EO 10 was done in the exercise of
executive functions, and not of judicial or quasi-judicial
functions, certiorari will not lie. Instead, the proper
remedy for the petitioner, according to the CA, is to file
a petition for declaratory relief with the Regional Trial
Court.
Petitioner sought reconsideration but this was denied
by the CA through the challenged Resolution.
Issue:
a. Whether or not declaratory relief is still available to
petitioner;
b. Whether or not the CA correctly ruled that the
respondent mayor was performing neither a judicial
nor quasi-judicial function when he ordered the closure
and demolition of Boracay West Cove’s hotel;
Held:
a. Declaratory relief no longer viable
Resolving first the procedural aspect of the case, We
find merit in petitioner’s contention that the special writ
of certiorari, and not declaratory relief, is the proper
remedy for assailing EO 10. As provided under Sec. 1,
Rule 63 of the Rules of Court:
SECTION 1. Who may file petition. – Any
person interested under a deed, will, contract or other
written instrument, whose rights are affected by a
statute, executive order or regulation, ordinance or any
other governmental regulation may, before breach or
violation thereof, bring an action in the appropriate
Regional Trial Court to determine any question of
construction or validity arising, and for a declaration of
his rights or duties, thereunder.
An action for declaratory relief presupposes
that there has been no actual breach of the
instruments involved or of the rights arising
thereunder. Since the purpose of an action for
declaratory relief is to secure an authoritative
statement of the rights and obligations of the parties
under a statute, deed, or contract for their guidance in
the enforcement thereof, or compliance therewith, and
not to settle issues arising from an alleged breach
thereof, it may be entertained before the breach or
violation of the statute, deed or contract to which it
refers. A petition for declaratory relief gives a practical
remedy for ending controversies that have not reached
the state where another relief is immediately available;
and supplies the need for a form of action that will set
controversies at rest before they lead to a repudiation
of obligations, an invasion of rights, and a commission
of wrongs.
In the case at bar, the petition for declaratory
relief became unavailable by EO 10’s enforcement and
implementation. The closure and demolition of the
hotel rendered futile any possible guidelines that may
be issued by the trial court for carrying outthe
directives in the challenged EO 10. Indubitably, the CA
erred when it ruled that declaratory relief is the proper
remedy given such a situation.
2.Monetary Board v. Philippine Veterans Bank,
G.R. No. 189571, 21 January 2015,
746 SCRA 508
FACTS:
The Philippine Veterans Bank, pursuant to its
mandate to provide financial assistance to veterans
and teachers under Republic Acts 3518 and 7169,
established pension loans for bona fide veterans and
beneficiaries, as well as salary loan products for
teachers. As these clientele do not have security other
than their continuing good health or employment, to
secure their loans, the PVB devised a program by
charging a premium, a higher fee known as Credit
Redemption Fund (CRF) from the borrowers. Special
Trust Funds were established by PVB for the loans of
its clientele and in case of death of the borrower, the
fees charged from him and credited to the trust funds
will be used to fully pay the loan.
Bangko Sentral ng Pilipinas found that PVB’s
collection of the CRF violated Section 54 of Republic
Act No. 8791 which prohibited banks from directly
engaging in insurance business as insurer. Thus, it
wrote the PVB to inform it that CRF is a form of
insurance, based on opinion by the Insurance
Commission and should be discontinued. PVB then
stopped collecting the fees.
The Monetary Board issued MB Resolution
No. 1139 directing the PVB’s Trust and Investment
Department to return to the borrowers all the balances
of the CRF; and to preserve the records of borrowers
who were deducted CRF pending resolution of ruling
of the Office of the General Counsel of the BSP. The
BSP denied PVB’s request for reconsideration, hence
it filed a petition for declamatory relief before the RTC
of Makati City.
The Monetary Board moved to dismiss the
petition, citing that the petition should not prosper
because of the prior breach of PVB by Section 54 of
RA 8791. The RTC dismissed the petition for
declaratory relief, ruling that the issue of whether or
not PVB violated Section 54 of Republic Act 8791
should be resolved in an ordinary civil action, not a
declaratory relief.
Almost year later, it filed a Motion to Admit
Motion for Reconsideration, stating that it did not
receive a copy of the order until September 3, 2008,
which the Monetary Board opposed, alleging that per
certification by the Philippine Postal Corporation, the
order was served on respondent on October 17, 2007.
The RTC ruling on the motion for
reconsideration, reversed itself and ruled that the
collection of the CRF by PVB did not constitute
engaging in the issuance business as an insurer,
hence not a violation of Section 54 of RA 8791.
Accordingly, it declared MB Resolution No. 1189 null
and void. Its motion for reconsideration denied, it filed
before the Supreme Court a petition for review on
certiorari to contest the RTC decision, on the issue of
whether or not the petition for declaratory relief is
proper.
ISSUE:Was the petition for declaratory relief proper?
HELD:
 Declaratory relief is an action by any person
interested in a deed, will, contract or other written
instrument, executive order or resolution, to determine
any question of construction or validity arising from the
instrument, executive order or regulation, or statute;
and for a declaration of his rights and duties
thereunder. The only issue that may be raised in such
a petition is the question of construction or validity of
provisions in an instrument or statute
 In CJH Development Corporation v. Bureau of
Internal Revenue, the SC that in the same manner that
court decisions cannot be the proper subjects of a
petition for declaratory relief, decisions of quasi-
judicial agencies cannot be subjects of a petition
for declaratory relief for the simple reason that if a
party is not agreeable to a decision either on
questions of law or of fact, it may avail of the
various remedies provided by the Rules of Court.
 In this case, the decision of the BSP Monetary
Board cannot be a proper subject matter for a petition
for declaratory relief. The BSP Monetary Board is a
quasi-judicial agency and the MB resolution it issued
was in its exercise of quasi-judicial powers or
functions.
o The authority of the petitioners to issue the
questioned MB Resolution emanated from its
powers under Section 37 of RA No. 7653 and
Section 66 of RA No. 8791 to impose, at its
discretion, administrative sanctions, upon any bank
for violation of any banking law.
o The nature of the BSP Monetary Board as a
quasi-judicial agency, and the character of its
determination of whether or not appropriate
sanctions may be imposed upon erring banks, as
an exercise of quasi-judicial function
 A quasi-judicial agency or body is an organ of
government other than a court and other than a
legislature, which affects the rights of private parties
through either adjudication or rule making. The very
definition of an administrative agency includes its
being vested with quasi-judicial powers.
o It recognizes the need for the active
intervention of administrative agencies in matters
calling for technical knowledge and speed in
countless controversies, which cannot possibly be
handled by regular courts.
 A “quasi-judicial function” is a term which
applies to the action, discretion, etc. of public
administrative officers or bodies, who are
required to investigate facts, or ascertain the
existence of facts, hold hearings, and draw
conclusions from them, as a basis for their
official action and to exercise discretion of a
judicial nature.
 Lastly, also worth noting is the fact that the
court a quo’s Order dated September 24,
2007, which dismissed respondent’s petition
for declaratory relief, had long become final
and executory.
o To recall, said Order was duly served
on and received by respondent on October 17,
2007, as evidenced by the Certification issued
by the Philippine Postal Corporation. Almost a
year later, however, or on October 15, 2008,
respondent moved for reconsideration of the
court a quo’s Order of dismissal, claiming it
received a copy of said Order only on
September 3, 2008.
o Thus, respondent’s self-serving claim
should not have prevailed over the
Certification issued by the Philippine Postal
Corporation. It was error for the trial court to
entertain it for the second time despite the
lapse of almost a year before respondent filed
its motion for reconsideration against said
Order.
3. SJS v. Lina, G.R. No. 160031, 18 December 2008,
574 SCRA 462
Facts:
 Petitioner, a registered political party, filed a
petition for declaratory relief against Sec Lina (later on
impleaded other respondents; look at the title) for the
proper construction of Section 90(a) of LGC which
provides:
o “All governors, city and municipal
mayors are prohibited from practicing their
profession or engaging in any other occupation
other than the exercise of their functions as local
chief executives.”
 The DILG, thru OSG, moved for the dismissal
arguing that (1) petitioner had no legal standing, (2)
there is no judicial controversy, (2) declaratory relief is
not the proper remedy.
 RTC dismissed the petition for declaratory
relief. Hence this petition for review on certiorari.
Issue: WON the petition for declaratory relief will
prosper – NO. Petition denied.
 In the petition filed with the trial court,
petitioner failed to allege the ultimate facts which
satisfy these requisites. Not only that, as admitted by
the petitioner, the provision the interpretation of which
is being sought has already been breached by the
respondents. Declaratory relief cannot thus be
availed of.
Ruling:
1. The Court agrees that petitioner has locus
standing; however, the action for declaratory relief is
an inappropriate remedy to enforce compliance with
Section 90 of LGC.
2. The appearance of incumbent city or municipal
mayors and provincial governors, who are actors in
movies and TV programs enhances their income but
reduces considerably the time they should devote their
constituents. This in violation of Section 90 of LGC
and Sec 7 of the Code of Conduct and Ethical
Standars for Public Officials and Employees. Their
appearance further gives them undue advantage in
future eletions over their opponents who are not
actors. (take note that there is nothing in the
dispositive portion ordering the respondents to
desists from being actors. Kasi mali remedy)
3. Indeed, an action for declaratory relief should
be filed by a person interested under a deed, a will, a
contract or other written instrument, and whose rights
are affected by a statute, an executive order, a
regulation or an ordinance. The purpose of the remedy
is to interpret or to determine the validity of the written
instrument and to seek a judicial declaration of the
parties rights or duties thereunder
For the action to prosper, it must be shown
that (1) there is a justiciable controversy; (2) the
controversy is between persons whose interests are
adverse; (3) the party seeking the relief has a legal
interest in the controversy; and (4) the issue is ripe for
judicial determination.
Rule 64 - Review of Judgments and Final Orders
and Resolutions of the Commission on Elections
and the Commission on Audit
1. Diocese of Bacolod v. COMELEC, G.R. No.
205728, 21 January 2015, 747 SCRA 1
Facts: On February 21, 2013, petitioners posted two
(2) tarpaulins within a private compound housing the
San Sebastian Cathedral of Bacolod. Each tarpaulin
was approximately six feet (6') by ten feet (10') in size.
They were posted on the front walls of the cathedral
within public view. The first tarpaulin contains the
message "IBASURA RH Law" referring to the
Reproductive Health Law of 2012 or Republic Act No.
10354. The second tarpaulin is the subject of the
present case. This tarpaulin contains the heading
"Conscience Vote" and lists candidates as either
"(Anti-RH) Team Buhay" with a check mark, or "(Pro-
RH) Team Patay" with an "X" mark. The electoral
candidates were classified according to their vote on
the adoption of Republic Act No. 10354, otherwise
known as the RH Law. Those who voted for the
passing of the law were classified by petitioners as
comprising "Team Patay," while those who voted
against it form "Team Buhay".
During oral arguments, respondents conceded
that the tarpaulin was neither sponsored nor paid for
by any candidate. Petitioners also conceded that the
tarpaulin contains names ofcandidates for the 2013
elections, but not of politicians who helped in the
passage of the RH Law but were not candidates for
that election.
On February 22, 2013, respondent Atty. Mavil
V. Majarucon, in her capacity as Election Officer of
Bacolod City, issued a Notice to Remove Campaign
Materials addressed to petitioner Most Rev. Bishop
Vicente M. Navarra. The election officer ordered the
tarpaulin’s removal within three (3) days from receipt
for being oversized. COMELEC Resolution No. 9615
provides for the size requirement of two feet (2’) by
three feet (3’)
On February 25, 2013, petitioners replied10
requesting, among others, that (1) petitioner Bishop be
given a definite ruling by COMELEC Law Department
regarding the tarpaulin; and (2) pending this opinion
and the availment of legal remedies, the tarpaulin be
allowed to remain.
On February 27, 2013, COMELEC Law
Department issued a letter12 ordering the immediate
removal of the tarpaulin; otherwise, it will be
constrained to file an election offense against
petitioners. The letter of COMELEC Law Department
was silenton the remedies available to petitioners.
Issue: Whether petitioners violated the hierarchy of
courts doctrine and jurisprudential rules governing
appeals from COMELEC decisions.
Held: Rule 64 is not the exclusive remedy for all acts
of the COMELEC. Rule 65 is applicable especially to
raise objections relating to a grave abuse of discretion
resulting in the ouster of jurisdiction.22 As a special
civil action, there must also be a showing that there be
no plain, speedy, and adequate remedy in the ordinary
course of the law.
Respondents contend that the assailed notice
and letter are not subject to review by this court,
whose power to review is "limited only to final
decisions, rulings and orders of the COMELEC En
Banc rendered in the exercise of its adjudicatory or
quasi-judicial power." Instead, respondents claim that
the assailed notice and letter are reviewable only by
COMELEC itself pursuant to Article IX-C, Section 2(3)
of the Constitution24 on COMELEC’s power to decide
all questions affecting elections.
In the present case, petitioners are not
candidates seeking for public office. Their petition is
filed to assert their fundamental right to expression.
Furthermore, all these cases cited by
respondents pertained to COMELEC’s exercise of its
adjudicatory or quasi-judicial power. This case pertains
to acts of COMELEC in the implementation of its
regulatory powers. When it issued the notice and
letter, the COMELEC was allegedly enforcingelection
laws.
Rule 65 – Certiorari

1. Aquino v. Malay, Aklan, G.R. No. 211356, 29
September 2014, 737 SCRA 145
DOCTRINE: Based on law and jurisprudence, the
office of the mayor has quasi-judicial powers to order
the closing and demolition of establishments. This
power granted by the LGC, as earlier explained, We
believe, is not the same power devolved in favor of the
LGU under Sec. 17 (b)(2)(ii), as above-quoted, which
is subject to review by the DENR. The fact that the
building to be demolished is located within a forestland
under the administration of the DENR is of no moment,
for what is involved herein, strictly speaking, is not an
issue on environmental protection, conservation of
natural resources, and the maintenance of ecological
balance, but the legality or illegality of the structure.
Rather than treating this as an environmental issue
then, focus should not be diverted from the root cause
of this debacle compliance.
Facts:Petitioner is the president and chief executive
officer of Boracay Island West Cove Management
Philippines, Inc. (Boracay West Cove) in which applied
for a zoning compliance with the municipal government
of Malay, Aklan.
While the company was already operating a
resort in the area, and the application sought the
issuance of a building permit covering the construction
of a three-storey hotel over a parcel of land located in
Sitio Diniwid, Barangay Balagab, Boracay Island,
Malay, Aklan, which is covered by a Forest Land Use
Agreement for Tourism Purposes issued by the
Department of Environment and Natural Resources
(DENR) in favor of Boracay West Cove.
Through a Decision on Zoning dated January
20, 2010, the Municipal Zoning Administrator denied
petitioner’s application on the ground that the
proposed construction site was within the “no build
zone” demarcated in Municipal Ordinance 2000-131.
Petitioner appealed the denial action to the
Office of the Mayor but despite follow up, no action
was ever taken by the respondent mayor. A Cease
and Desist Order was issued by the municipal
government, enjoining the expansion of the resort, and
on June 7, 2011, the Office of the Mayor of Malay,
Aklan issued the assailed EO 10, ordering the closure
and demolition of Boracay West Cove’s hotel.
Petitioner filed a Petition for Certiorari with
prayer for injunctive relief with the CA Alleging that the
order was issued and executed with grave abuse of
discretion. However, the CA dismissed the petition
solely on procedural ground, i.e., the special writ of
certiorari can only be directed against a tribunal,
board, or officer exercising judicial or quasi-judicial
functions and since the issuance of EO 10 was done in
the exercise of executive functions, and not of judicial
or quasi-judicial functions, certiorari will not lie.
Instead, the proper remedy for the petitioner,
according to the CA, is to file a petition for declaratory
relief with the Regional Trial Court.
Petitioner sought reconsideration but this was
denied by the CA. on February 3, 2014 through the
challenged Resolution. Hence, the instant petition
raising arguments on both procedure and substance.
PETITIONER CONTENTION: The hotel cannot
summarily be abated because it is not a nuisance per
se, given the hundred million peso-worth of capital
infused in the venture. And the Municipality of Malay,
Aklan should have first secured a court order before
proceeding with the demolition.
RESPONDENTS CONTENTION: The demolition
needed no court order because the municipal mayor
has the express power under the Local Government
Code (LGC) to order the removal of illegally
constructed buildings.
Issue:
1. Whether or not judicial proceedings are conducted
first before the LGU can order the closure and
demolition of the property in question.
2. Whether or not declaratory relief is still available to
petitioner;
Ruling:
1. Generally, LGUs have no power to declare a
particular thing as a nuisance unless such a thing is a
nuisance per se.
Despite the hotel’s classification as a
nuisance per accidens, however, we still find in this
case that the LGU may nevertheless properly order the
hotel’s demolition. This is because, in the exercise of
police power and the general welfare clause, property
rights of individuals may be subjected to restraints and
burdens in order to fulfill the objectives of the
government. Otherwise stated, the government may
enact legislation that may interfere with personal
liberty, property, lawful businesses and occupations to
promote the general welfare.
Under the law, insofar as illegal constructions
are concerned, the mayor can, after satisfying the
requirement of due notice and hearing, order their
closure and demolition.
One such piece of legislation is the LGC,
which authorizes city and municipal governments,
acting through their local chief executives, to issue
demolition orders. Under existing laws, the office of the
mayor is given powers not only relative to its function
as the executive official of the town; it has also been
endowed with authority to hear issues involving
property rights of individuals and to come out with an
effective order or resolution thereon.20 Pertinent
herein is Sec. 444 (b) (3) (vi) of the LGC, which
empowered the mayor to order the closure and
removal of illegally constructed establishments for
failing to secure the necessary permits.
2. Declaratory relief no longer viable
Resolving first the procedural aspect of the
case, We find merit in petitioner's contention that the
special writ of certiorari, and not declaratory relief, is
the proper remedy for assailing EO 10. As provided
under Sec. 1, Rule 63 of the Rules of Court:
SECTION 1. Who may file petition. Any person
interested under a deed, will, contract or other written
instrument, whose rights are affected by a statute,
executive order or regulation, ordinance or any other
governmental regulation may, before breach or...
violation thereof, bring an action in the appropriate
Regional Trial Court to determine any question of
construction or validity arising, and for a declaration of
his rights or duties, thereunder. x x x (emphasis
added)
An action for declaratory relief presupposes
that there has been no actual breach of the
instruments involved or of the rights arising
thereunder. Since the purpose of an action for
declaratory relief is to secure an authoritative
statement of the rights and obligations of... the parties
under a statute, deed, or contract for their guidance in
the enforcement thereof, or compliance therewith, and
not to settle issues arising from an alleged breach
thereof, it may be entertained before the breach or
violation of the statute, deed or contract to which... it
refers. A petition for declaratory relief gives a practical
remedy for ending controversies that have not reached
the state where another relief is immediately available;
and supplies the need for a form of action that will set
controversies at rest before they lead to... a
repudiation of obligations, an invasion of rights, and a
commission of wrongs.
In the case at bar, the petition for declaratory
relief became unavailable by EO 10's enforcement and
implementation. The closure and demolition of the
hotel rendered futile any possible guidelines that may
be issued by the trial court for carrying out the
directives in the... challenged EO 10. Indubitably, the
CA erred when it ruled that declaratory relief is the
proper remedy given such a situation.
Petitioner could have filed, as an alternative, a
petition for mandamus to compel the respondent
mayor to exercise discretion and resolve the
controversy pending before his office. There is indeed
an exception to the rule that... matters involving
judgment and discretion are beyond the reach of a writ
of mandamus, for such writ may be issued to compel
action in those matters, when refused. Whether or not
the decision would be for or against petitioner would
be for the respondent mayor to decide,... for while
mandamus may be invoked to compel the exercise of
discretion, it cannot compel such discretion to be
exercised in a particular way.[21] What would have
been important was for the respondent mayor to
immediately resolve the case for petitioner to... be able
to go through the motions that the zoning clearance
application process entailed
2.Villanueva v. Judicial & Bar Council, G.R. No.
211833, 7 April 2015, 755 SCRA
182
Facts: The petitioner was appointed on September 18,
2012 as the Presiding Judge of the Municipal Circuit
Trial Court, Compostela-New Bataan, Poblacion,
Compostela Valley Province, Region XI, which is a
first-level court. On September 27, 2013, he applied for
the vacant position of Presiding Judge in the following
Regional Trial Courts (RTCs): Branch 31, Tagum City;
Branch 13, Davao City; and Branch 6, Prosperidad,
Agusan Del Sur In a letter2 dated December 18, 2013,
JBC's Office of Recruitment, Selection and
Nomination, informed the petitioner that he was not
included in the list of candidates for the said stations.
On the same date, the petitioner sent a letter, through
electronic mail, seeking reconsideration of his non-
inclusion in the list of considered applicants and
protesting the inclusion of applicants who did not pass
the prejudicature examination. The petitioner was
informed by the JBC Executive Officer, through a
letter3 dated February 3, 2014, that his protest and
reconsideration was duly noted by the JBC en banc.
However, its decision not to include his name in the list
of applicants was upheld due to the JBC's long-
standing policy of opening the chance for promotion to
second-level courts to, among others, incumbent
judges who have served in their current position for at
least five years, and since the petitioner has been a
judge only for more than a year, he was excluded from
the list. This caused the petitioner to take recourse to
this Court
ISSUE:WON the writ of certiorari and prohibition
cannot issue to prevent the JBC from performing its
principal function under the Constitution to recommend
appointees to the Judiciary because the JBC is not a
tribunal exercising judicial or quasi-judicial function
Held:The remedies of certiorari and prohibition are
tenable. "The present Rules of Court uses two special
civil actions for determining and correcting grave
abuse of discretion amounting to lack or excess of
jurisdiction.
In this case, it is clear that the JBC does not
fall within the scope of a tribunal, board, or officer
exercising judicial or quasi-judicial functions. In the
process of selecting and screening applicants, the JBC
neither acted in any judicial or quasi-judicial capacity
nor assumed unto itself any performance of judicial or
quasi-judicial prerogative. However, since the
formulation of guidelines and criteria, including the
policy that the petitioner now assails, is necessary and
incidental to the exercise of the JBC's constitutional
mandate, a determination must be made on whether
the JBC has acted with grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing
and enforcing the said policy.
Besides, the Court can appropriately take
cognizance of this case by virtue of the Court's power
of supervision over the JBC. Jurisprudence provides
that the power of supervision is the power of oversight,
or the authority to see that subordinate officers perform
their duties.
Following this definition, the supervisory
authority of the Court over the JBC is to see to it that
the JBC complies with its own rules and procedures.
Thus, when the policies of the JBC are being attacked,
then the Court, through its supervisory authority over
the JBC, has the duty to inquire about the matter and
ensure that the JBC complies with its own rules
The remedy of mandamus cannot be availed
of by the petitioner in assailing JBC's policy. It is
essential to the issuance of a writ of mandamus that
the applicant should have a clear legal right to the
thing demanded and it must be the imperative duty of
the respondent to perform the act required. The
remedy of mandamus, as an extraordinary writ, lies
only to compel an officer to perform a ministerial duty,
not a discretionary one.14 Clearly, the use of
discretion and the performance of a ministerial act are
mutually exclusive. Clearly, to be included as an
applicant to second-level judge is not properly
compellable by mandamus inasmuch as it involves the
exercise of sound discretion by the JBC
The petition for declaratory relief is improper.
"An action for declaratory relief should be filed by a
person interested under a deed, a will, a contract or
other written instrument, and whose rights are affected
by a statute, an executive order, a regulation or an
ordinance. The relief sought under this remedy
includes the interpretation and determination of the
validity of the written instrument and the judicial
declaration of the parties' rights or duties thereunder."
In this case, the petition for declaratory relief
did not involve an unsound policy. Rather, the petition
specifically sought a judicial declaration that the
petitioner has the right to be included in the list of
applicants although he failed to meet JBC's five-year
requirement policy. Again, the Court reiterates that no
person possesses a legal right under the Constitution
to be included in the list of nominees for vacant judicial
positions. The opportunity of appointment to judicial
office is a mere privilege, and not a judicially
enforceable right that may be properly claimed by any
person
Furthermore, the instant petition must
necessarily fail because this Court does not have
original jurisdiction over a petition for declaratory relief
even if only questions of law are involved.18 The
special civil action of declaratory relief falls under the
exclusive jurisdiction of the appropriate RTC pursuant
to Section 1919 of Batas Pambansa Blg. 129, as
amended by R.A.No. 7691
Therefore, by virtue of the Court's supervisory
duty over the JBC and in the exercise of its expanded
judicial power, the Court assumes jurisdiction over the
present petition. But in any event, even if the Court will
set aside procedural infirmities
3. Clark Investors and Locators Association, Inc. v.
Secretary of Finance, G.R. No. 200670, 6 July
2015, 761 SCRA 586
Facts:On March 13, 1992, Congress enacted RA No.
7227 which mandated the accelerated conversion of
the Clark and Subic military reservations into special
economic zones. Based on Section 12 (c) of the said
law, in lieu of national and local taxes, all businesses
and enterprises operating within the Subic Special
Economic Zone shall pay a preferential gross income
tax rate of five percent (5%). In addition, Section 12 (b)
also provides that such businesses and enterprises
shall be exempt from the payment of all taxes and
duties on the importation of raw materials, capital, and
equipment into the Subic Special Economic Zone.
This tax and fiscal incentives under RA No. 7227was
further extended to the Clark Freeport Zone upon
enactment of RA No. 9400 on March 20, 2007. This
made the businesses and enterprises within the Clark
Freeport Zone exempt from the payment of all taxes
and duties on the importation of raw materials, capital
and equipment.
On February 17, 2012, the Dept. of Finance,
upon recommendation of the BIR, issued RR 2-2012
which imposed VAT and excise tax on the importation
of petroleum and petroleum products from abroad and
into the Freeport or Economic Zones.
Herein petitioner, which represents the
businesses and enterprises within the Clark Freeport
Zone, filed the instant petition alleging that
respondents acted with grave abuse of discretion in
issuing RR 2-2012. It argues that by imposing the VAT
and excise tax on the importation of petroleum and
petroleum products from abroad and into the Freeport
or Economic Zones, RR 2-2012 unilaterally revoked
the tax exemption granted by RA No. 7227 and RA No.
9400 to the businesses and enterprises operating
within the Subic Special Economic Zone and Clark
Freeport Zone.
This petition for certiorari prays for the
issuance of a TRO and/or writ of preliminary injunction
to annul and set aside RR 2-2012 issued by the
Department of Finance upon recommendation of the
BIR.
Issue:W/N the Secretary of Finance acted with grave
abuse of discretion in issuing RR 2-2012 that imposes
VAT and excise tax on the importation of petroleum
and petroleum products from abroad and into Freeport
or Economic Zones, as it is claimed to have unilaterally
revoked tax exemption granted by RA 7227 and RA
9400.
Held:The SC denied the petition for being an
improper remedy.
FIRSTLY, a petition for certiorari under Rule
65 of the 1997 Rules of Civil Procedure, as amended,
is a special civil action that may be invoked ONLY
against a tribunal, board, or officer exercising judicial
or quasi-judicial functions. Before a tribunal, board, or
officer may exercise judicial or quasi-judicial acts, it is
necessary that there be a law that gives rise to some
specific rights of persons or property under which
adverse claims to such rights are made, and the
controversy ensuing therefrom is brought before a
tribunal, board, or officer clothed with power and
authority to determine the law and adjudicate the
respective rights of the contending parties.
In determining whether a Revenue Regulation
is quasi-legislative in nature, the legal basis of the
Secretary of Finance in the issuance thereof must be
examined. RR 2-2012 was issued by the Secretary of
Finance based on Section 244 of the NIRC. Section
244 is an express grant of authority to the Secretary of
Finance to promulgate all needful rules and regulations
for the effective enforcement of the provisions of the
NIRC. And since RR 2-2012 was issued by the
Secretary of Finance based on Section 244 of the
NIRC, such administrative issuance is therefore
quasi-legislative in nature which is outside the
scope of a petition for certiorari.
SECONDLY, Supreme Court explained that it
could not be denied that even if the petition is filed as a
certiorari, in real essence, it seeks the declaration by
the High Court of the unconstitutionality and
illegality of the questioned rule, thus partaking the
nature, in reality, of one for declaratory relief over
which the SC has only appellate, not original,
jurisdiction.
LASTLY, although the SC, the CA and the RTC have
concurrent jurisdiction to issue writs of certiorari,
prohibition, mandamus, quo warranto, habeas
corpus and injunction, such concurrence does not
give the petitioner unrestricted freedom of choice
of court forum, as hierarchy of courts must be
respected. That hierarchy is determinative of the
venue of appeals, and also serves as a general
determinant of the appropriate forum for petitions for
the extraordinary writs.
A direct invocation of the Supreme Court's
original jurisdiction to issue these writs should be
allowed only when there are special and important
reasons therefor, clearly and specifically set out in
the petition. This is [an] established policy. It is a
policy necessary to prevent inordinate demands upon
the Court's time and attention which are better devoted
to those matters within its exclusive jurisdiction, and to
prevent further over-crowding of the Court's docket.
4. Tagle v. Equitable PCI, G.R. No. 172299, 22 April
2008, 552 SCRA 424
Facts:This Petition for Certiorari under Rule 65 of the
Revised Rules of Court was filed by petitioner Alfredo
Tagle (petitioner Alfredo).
 Petitioner Alfredo urges the Court to set aside,
on the ground of grave abuse of discretion amounting
to lack or excess of jurisdiction, which denied petitioner
Alfredos Motion to Stop Writ of Possession. He prays
that this Court certify for review with prayer for
preliminary injunction to stop the writ of possession of
the property located at Concepcion Subdivision,
Baliuag, Bulacan and embraced in Transfer Certificate
of Title
 According to petitioner Alfredo, the subject
property is registered in his name and was constituted
as a Family Home in accordance with the provisions of
the Family Code. He and his wife Arsenia Bautista
Tagle (Arsenia) never mortgaged the subject property
to respondent Equitable PCI Bank whether before or
after the subject property was constituted as their
Family Home.
 It was Josefino Tagle (Josefino), who was not
the owner of the subject property, who mortgaged the
same with respondent E-PCI. Josefino was religiously
paying the installments on his mortgage obligation and
had paid more than half. Josefino, however, passed
away. Petitioner Alfredo was then forced to assume
Josefinos outstanding mortgage obligation. Even as
petitioner Alfredo was already paying Josefinos
mortgage obligation in installments, respondent E-PCI
still foreclosed the mortgage on the subject property.
 On the other hand, respondent E-PCI recounts
that the subject property was formerly registered in the
name of petitioner Alfredo. It was mortgaged, pursuant
to a Special Power of Attorney executed by petitioner
Alfredo, to secure the obligation of the spouses
Josefino and Emma Tagle with respondent E-
PCI. Respondent E-PCI foreclosed the mortgage on
the subject property upon default in payment by
spouses Josefino and Emma, and upon the expiration
of the period of redemption, caused the consolidation
and transfer of the title to the subject property in its
name. Consequently, respondent E-PCI filed with the
RTC a Petition for Issuance of Writ of Possession of
the subject property, which was docketed as LRC
Case No. P-71-2004. Petitioner Alfredo, however, filed
a Motion to Stop Writ of Possession on the ground that
the subject property is a Family Home which is exempt
from execution, forced sale or attachment.
 RTC issued the assailed Order denying
petitioner Alfredos Motion
 RTC held that:In the case at bar, the mortgage
transaction happened on May 9, 1997 (Exhibit D), after
the effectivity of the Family Code.
 Petitioner Alfredo and his spouse Arsenia filed
with the RTC a Motion for Reconsideration; again
denied by the RTC.
 Petitioner elevated the case to the Court of
Appeals on a Petition for Certiorari and Prohibition
assailing and seeking the nullification and the setting
aside of the denial of his Motion to Stop Writ of
Possession.
 Appellate court resolved to dismiss the
petition, stating thus: The instant petition is not
accompanied by (i) the order denying petitioners
motion to exempt from foreclosure of mortgage; and
(ii) a relevant and pertinent document, i.e., motion to
exempt from foreclosure of mortgage (Sec. 1, Rule 65,
in relation to Sec. 3, Rule 46, 1997 Rules of Civil
Procedure).
 Alfredo moved for the reconsideration,
however denied for lack of merit.
 Petitioner once more filed a Motion for
Reconsideration of the appellate courts
 Court of Appeals promulgated the last of
its Resolutions, denying, as expected, petitioner
Alfredos Second Motion for Reconsideration stating
that: “Appellant has not cured the formal defects of the
petition noted in Our resolution dated September 6,
2005. And, more importantly, a second motion for
reconsideration of a final order is not allowed”
 The subject motion for reconsideration is
DENIED
 Petitioner filed the instant petition designating
it in both the caption and the body as one
for certiorari under Rule 65 of the RRC. He anchors
the present petition on the sole issue whether or not
the subject property subject of the mortgage being a
family home is exempt from foreclosure of mortgage
 Respondent E-PCI counters that the petition at
bar must be dismissed on the following grounds:
First, petitioner Alfredos Petition
for Certiorari with this Court failed to comply with the
technical requirements of the Rules of Court for
petitions for certiorari in that (a) the present petition
was filed out of time considering that the 60-day period
within which to file the same was reckoned from
receipt of the 11 April 2006 Resolution denying
petitioner Alfredos second Motion for Reconsideration,
instead of the 16 February 2006 Resolution denying
his first Motion for Reconsideration; (b) petitioner
Alfredo did not allege in the present petition that the
Court of Appeals acted without or in excess of its or his
jurisdiction or with grave abuse of discretion amounting
to lack or excess of jurisdiction when it dismissed his
petition in CA-G.R. SP No. 90461 for failure to attach
thereto certified true copies of the 4 April 2005 RTC
Order denying his Motion to Stop Writ of Possession,
as well as the very motion subject of the assailed
order; (c) the present petition lacks the proper
verification and is considered an unsigned pleading
which produces no effect whatsoever; and (d) the
present petition requested for the issuance of an
injunction without stating the grounds therefor.
Second, petitioner Alfredos second Motion for
Reconsideration filed with the Court of Appeals is
prohibited by law, as a second motion for
reconsideration of a judgment or final resolution is
clearly disallowed by Sec. 2, Rule 52 of the Rules of
Court, as amended.
And third, granting arguendo that the petition
at bar was properly filed by petitioner Alfredo with this
Court, the Court of Appeals did not err in dismissing
the Petition for Certiorari in CA-G.R. SP No. 90461 for
failure of petitioner Alfredo to submit the required
documents
 Respondent E-PCI then concludes that the
present Petition for Certiorari was filed not to question
the jurisdiction of the Court of Appeals but as a vain
hope of appealing the Order dated April 4, 2005 issued
by the RTC
Issue:W/N the present Petition for Certiorari filed
under Rule 65 of the Revised Rules of Court is the
proper remedy for petitioner Alfredo to avail of in
seeking the reversal of the three Resolutions of the
Court of Appeals
Ruling:The instant Petition
for Certiorari is DISMISSED for lack of merit.
 The three Resolutions of the Court of Appeals
dated 6 September 2005, 16 February 2006 and 11
April 2006, respectively, in CA-G.R. SP No. 90461, are
hereby AFFIRMED in toto. With costs against
petitioner Alfredo Tagle.
 A petition for certiorari is governed by Rule 65
of the Revised Rules of Court, which reads:
Section 1-Petition for certiorari. When any
tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of [its
or his] jurisdiction, or with grave abuse of discretion
amounting to lack or excess of its or his jurisdiction,
and there is no appeal, or any plain, speedy, and
adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in
the proper court, alleging the facts with certainty and
praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or
officer, and granting such incidental reliefs as law and
justice may require.
The petition shall be accompanied by a
certified true copy of the judgment, order or resolution
subject thereof, copies of all pleadings and documents
relevant and pertinent thereto, and a sworn
certification of non-forum shopping as provided in the
third paragraph of Section 3, Rule 46.
A writ of certiorari may be issued only for the
correction of errors of jurisdiction or grave abuse of
discretion amounting to lack or excess of
jurisdiction. Such cannot be used for any other
purpose, as its function is limited to keeping the inferior
court within the bounds of its jurisdiction.
In the case at bar, the assailed Resolutions of
the Court of Appeals dismissing petitioner Alfredos
petition in CA-G.R. SP No. 90461 were final orders.
They were not interlocutory because the proceedings
were terminated; and left nothing more to be done by
the appellate court. There were no remaining issues to
be resolved in CA-G.R. SP No. 90461. Consequently,
the proper remedy available to petitioner Alfredo then
was to file before this Court a Petition for Review
on Certiorari under Rule 45 of the Revised Rules of
Court of the assailed Resolutions of the Court of
Appeals, and not a special civil action for certiorari.
From the foregoing discussion, it is fairly
obvious that the third requisite for a petition
for certiorari is wanting, that is, there must be no
appeal or any plain, speedy, and adequate remedy in
the ordinary course of law. The availability to petitioner
Alfredo of the remedy of a petition for review
on certiorari from the assailed Resolutions of the Court
of Appeals effectively barred his right to resort to a
petition for certiorari. Basic is the rule that a writ
of certiorari will not issue where the remedy of appeal
is available to an aggrieved party. A remedy is
considered "plain, speedy and adequate" if it will
promptly relieve the petitioner from the injurious effects
of the judgment and the acts of the lower court or
agency. In this case, appeal was not only available but
also a speedy and adequate remedy. Moreover,
petitioner Alfredo failed to show circumstances that
would justify a deviation from the general rule as to
make available to him a petition for certiorari in lieu of
making an appeal.
Petitioner failed to show any valid reason why
the issue raised in his petition for certiorari could not
have been raised on ordinary appeal by certiorari. He
simply argued that the appellate court gravely abuse
its discretion which amounted to lack or excess of
jurisdiction in dismissing his petition in CA-G.R. SP No.
90461 and not finding that the subject property
covered by the Writ of Possession was a Family
Home, hence, exempt from execution or forced
sale. He did not give a single explanation as to why the
errors committed by the Court of Appeals cannot
possibly be cured by ordinary appeal under Rule 45 of
the Revised Rules of Court.
The remedies of appeal in the ordinary course
of law and that of certiorari under Rule 65 of the
Revised Rules of Court are mutually exclusive and not
alternative or cumulative.
To be sure, once again, we take this
opportunity to distinguish between a Petition for
Review on Certiorari (an appeal by certiorari) and a
Petition for Certiorari (a special civil action/an original
action for Certiorari), under Rules 45 and 65,
respectively, of the Revised Rules of Court. Madrigal
Transport Inc. v. Lapanday Holdings
Corporation,[43] summarizes the distinctions between
these two remedies, to wit:
As to the Purpose. Certiorari is a remedy
designed for the correction of errors of jurisdiction, not
errors of judgment.
As to the Manner of Filing. Over an appeal, the
CA exercises its appellate jurisdiction and power of
review. Over a certiorari, the higher court uses its
original jurisdiction in accordance with its power of
control and supervision over the proceedings of lower
courts. An appeal is thus a continuation of the original
suit, while a petition for certiorari is an original and
independent action that was not part of the trial that
had resulted in the rendition of the judgment or order
complained of. The parties to an appeal are the
original parties to the action. In contrast, the parties to
a petition for certiorari are the aggrieved party (who
thereby becomes the petitioner) against the lower
court or quasi-judicial agency, and the prevailing
parties (the public and the private respondents,
respectively).
As to the Subject Matter. Only judgments or
final orders and those that the Rules of Court so
declared are appealable. Since the issue is jurisdiction,
an original action for certiorari may be directed against
an interlocutory order of the lower court prior to an
appeal from the judgment; or where there is no appeal
or any plain, speedy or adequate remedy.
As to the Period of Filing. Ordinary appeals
should be filed within fifteen days from the notice of
judgment or final order appealed from. Where a record
on appeal is required, the appellant must file a notice
of appeal and a record on appeal within thirty days
from the said notice of judgment or final order. A
petition for review should be filed and served within
fifteen days from the notice of denial of the decision, or
of the petitioners timely filed motion for new trial or
motion for reconsideration. In an appeal by certiorari,
the petition should be filed also within fifteen days from
the notice of judgment or final order, or of the denial of
the petitioners motion for new trial or motion for
reconsideration.
On the other hand, a petition for certiorari
should be filed not later than sixty days from the notice
of judgment, order, or resolution. If a motion for new
trial or motion for reconsideration was timely filed, the
period shall be counted from the denial of the motion.
As to the Need for a Motion for
Reconsideration. A motion for reconsideration is
generally required prior to the filing of a petition for
certiorari, in order to afford the tribunal an opportunity
to correct the alleged errors. Note also that this motion
is a plain and adequate remedy expressly available
under the law. Such motion is not required before
appealing a judgment or final order.
5. Cervantes v. Court of Appeals, G.R. No. 166755,
18 November 2005, 475 SCRA
562
Facts: On December 6, 1995, petitioner filed a petition
for annulment of marriage and custody of minor
children before the Regional Trial Court of Muntinlupa
City, Branch 276, docketed as Civil Case No. 95-194.
The trial court resolved to grant the annulment of the
marriage based on private respondents psychological
incapacity, award to petitioner the custody of the minor
children, and order the liquidation of the conjugal
properties.
Private respondent filed a Motion for
Reconsideration/New Trial and to Admit Answer which
the trial court granted in an order dated February 12,
1997. In addition, private respondent was awarded
visitation rights over the minor children.
Petitioner moved to reconsider the February
12, 1997 Order which was granted by the trial court in
the Order of October 10, 1997. The trial court set aside
the February 12, 1997 Order and affirmed the
December 13, 1996 Resolution granting the annulment
of the marriage and directed the parties to submit an
inventory of their conjugal assets.
Thereafter, private respondent submitted an
inventory of conjugal assets which included their Ayala
Alabang Village house and lot. Petitioner manifested
that the conjugal abode be adjudicated in his favor
considering that he was awarded the custody of the
children while private respondent was adjudged to be
the party in bad faith.
The trial court ordered that the conjugal
properties which include the conjugal abode, certificate
of stock and motor vehicle, should be sold and the
proceeds thereof be divided equally between the
parties. Respondent filed a motion for execution of the
August 4, 1999 resolution,while on November 18,
1999, petitioner prayed for its reconsideration. On
March 15, 2000, the trial court declared that the
August 4, 1999 resolution has become final. A writ of
execution was accordingly issued on March 17, 2000.
Petitioner thus filed a petition for certiorari
before the Court of Appeals seeking to annul the
August 4, 1999 Resolution and the March 17, 2000
Writ of Execution.
The Court of Appeals dismissed the petition
and held that the August 4, 1999 Resolution of the trial
court had long become final and executory for failure
of petitioner to file a timely motion for reconsideration
or appeal. It also denied petitioners motion for
reconsideration.
Petitioner then elevated the case to the
Supreme Court. Thereafter, petitioner filed a
Manifestation and Motion clarifying that what he filed
on September 22, 2003 was a motion to forfeit the
share of the private respondent in the net profits of the
conjugal properties and not a motion to amend an
order, and praying that the same motion be resolved
by the trial court. Petitioner contends that filing a
motion for reconsideration before recourse to the
special civil action of certiorari would be futile because
the trial court had already ordered the execution of the
judgment, citing the case of Guevarra v. Court of
Appeals. He claims that the trial court was amply given
opportunity to correct itself when he filed the
Manifestation and Motion clarifying the August 2, 2004
Order.
Issue: Whether Rule 65 applies in the case at bar.
Held: Section 1, Rule 65 of the Rules of Court
provides: SECTION 1. Petition for certiorari. When
any tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess
of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction,
and there is no appeal, nor any plain, speedy, and
adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in
the proper court, alleging the facts with certainty and
praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or
officer, and granting such incidental reliefs as law and
justice may require.
The petition shall be accompanied by a
certified true copy of the judgment, order or resolution
subject thereof, copies of all pleadings and documents
relevant and pertinent thereto, and a sworn
certification of non-forum shopping as provided in the
third paragraph of Section 3, Rule 46.
As held in Flores v. Sangguniang
Panlalawigan of Pampanga, the plain and adequate
remedy referred to in the foregoing Rule is a motion for
reconsideration of the assailed Order or Resolution,
the filing of which is an indispensable condition to the
filing of a special civil action for certiorari, subject to
certain exceptions, to wit:
(a) where the order is a patent nullity, as
where the court a quo has no jurisdiction;
(b) where the questions raised in the certiorari
proceedings have been duly raised and passed upon
by the lower court, or are the same as those raised
and passed upon in the lower court;
(c) where there is an urgent necessity for the
resolution of the question and any further delay would
prejudice the interests of the Government or of the
petitioner or the subject matter of the action is
perishable;
(d) where, under the circumstances, a motion
for reconsideration would be useless;
(e) where petitioner was deprived of due
process and there is extreme urgency for relief;
(f) where, in a criminal case, relief from an
order of arrest is urgent and the granting of such relief
by the trial court is improbable;
(g) where the proceedings in the lower court
are a nullity for lack of due process;
(h) where the proceedings was ex parte or in
which the petitioner had no opportunity to object; and
(i) where the issue raised is one purely of law
or public interest is involved.
An examination of the records, specifically the
petition for certiorari filed with the Court of Appeals,
reveals that petitioner not only failed to explain his
failure to file a motion for reconsideration of the August
27, 2004 Order of the trial court; he also failed to show
sufficient justification for dispensing with the
requirement. Neither did he show that the case falls
under any of the above exceptions. It was only in the
motion for reconsideration of the November 22, 2004
Resolution of the Court of Appeals and in the instant
petition that he explained why he dispensed with the
filing of prior motion for reconsideration.
It must be emphasized that a writ of certiorari
is a prerogative writ, never demandable as a matter of
right, never issued except in the exercise of judicial
discretion. Hence, he who seeks a writ of certiorari
must apply for it only in the manner and strictly in
accordance with the provisions of the law and the
Rules.[24] Petitioner may not arrogate to himself the
determination of whether a motion for reconsideration
is necessary or not. To dispense with the requirement
of filing a motion for reconsideration, petitioner must
show a concrete, compelling, and valid reason for
doing so,[25] which petitioner failed to do. Thus, the
Court of Appeals correctly dismissed the petition.
Moreover, petitioners reliance in the case of
Guevarra v. Court of Appeals[26] to justify the failure to
file a motion for reconsideration is misplaced. Although
we held in Guevarra that a motion for reconsideration
may be dispensed with in cases of urgency like when
the trial court had ordered the execution of the
judgment, this circumstance must be clearly shown by
the petitioner as a concrete, compelling and valid
reason, and not just leave it for the courts to ascertain.
6. Concepcion v. COMELEC, G.R. No. 178624, 30
June 2009, 591 SCRA 420
Facts: A petition for certiorari filed by Jose
Concepcion, Jr. (petitioner) seeking to set aside the En
Banc Resolution dated 02 April
2007 and Order dated 8 May 2007 of respondent
Commission on Elections (COMELEC)
The petition cites and quotes the assailed
rulings, then recites that on January 5, 2007, the
National Citizens Movement for Free Elections
(NAMFREL) filed a Petition for Accreditation to
Conduct the Operation Quick Count with the
COMELEC. The present petitioner then the
incumbent Punong Barangay of Barangay Forbes
Park, Makati City was one of the signatories of the
NAMFREL petition in his capacity as the National
Chairman of NAMFREL.
Records of past political exercises show that
on election day, the Commission on Elections usually
receive numerous complaints
against barangay officials entering polling places and
interfering in proceedings of the BEIs thereby causing
not only delay in the proceedings, but also political
tension among the BEIs, the voters and the watchers
in the polling place.
Thus, COMELEC promulgated Resolution No. 7798
that provides the following:
Section 3 of EO No. 94 - No barangay official
shall be appointed as member of the Board of Election
Inspectors or as official watcher of each duly
registered major political party or any socio-civic,
religious, professional or any similar organization of
which they may be members.
…and then prohibiting:
1. The appointment of barangay officials which
includes the Punong Barangay, Barangay Kagawad,
Barangay Secretary, Barangay Treasurer, and
Barangay Tanod, as Chairman/person and/or Member
of the BEIs or as official watcher of any candidate, duly
registered major political party, or any similar
organization, or any socio-civic, religious, professional
[sic], in the May 14, 2007 National and Local
Elections. The prohibition extends
to barangay officials, employees and tanods, who are
members of accredited citizen’s arms.
2. The barangay officials, employees
and tanods from staying inside any polling place,
except to cast their vote. Accordingly, they should
leave the polling place immediately after casting their
vote.
The COMELEC ruled on NAMFRELs petition
for accreditation and find it meritorious. There is,
however, one important condition that must be fulfilled
by the petitioner before its accreditation as citizens’
arm could legally take effect. Accordingly, Mr. Jose S.
Concepcion, Jr., the National Chairman of NAMFREL,
must first be removed both as a member and overall
Chairman of said organization. As correctly pointed out
by the oppositor, Mr. Concepcion, being the Barangay
Chairman of Barangay Forbes Park, Makati City,
cannot be a member much more the overall chairman
of the citizens arm such as NAMFREL. This is
explicitly provided for in COMELEC Resolution No.
7798
NAMFREL filed a Manifestation and Request
for Re-Examination that: (1) contains information
regarding NAMFRELs reorganization and its new set
of officers showing that the petitioner had stepped
down as National Chair and had been replaced by a
new Chair; (2) manifests NAMFRELs acceptance of
the conditional grant of its petition for accreditation;
and (3) includes NAMFRELs request for a re-
examination without further arguments of the April 2,
2007 Resolution as it specifically affected the
petitioners membership with NAMFREL. In this
Manifestation and Request for Re-examination,
NAMFREL outlined its various objections and
concerns on the legality or validity of Resolution 7798.
The COMELEC, in its Order noted the
information relating to NAMFRELs current officers, and
denied the request to examine its (COMELECs)
interpretation. The COMELEC reasoned out that
Resolution is clear, and NAMFREL had not presented
any convincing argument to warrant the requested
examination.
Instead of a direct reaction from NAMFREL,
the petitioner filed the present petition, ostensibly
questioning the COMELECs April 2, 2007 Resolution,
butactually raising issues with respect to Resolution
7798.
The Office of the Solicitor General (OSG)
defends the validity of Resolution 7798.
The courts dismiss the petition for blatant
misuse of Rule 65 of the Rules of Court. The petition
mentions three legal instruments related with the case,
namely: (1) EO No. 94, (2) COMELECs Resolution
(3) COMELEC Resolution 7798, issued pursuant to
EO No. 94 and which in turn is the basis of the
COMELEC’s Resolution.
The petitioner now seeks to assail, in his
individual capacity, a challenge to the COMELECs adjudicatory April 2, 2007
COMELEC adjudicatory resolution (i.e., the April 2,
2007 Resolution) for its adverse effects on him when
he was not a party to that case. NAMFREL is not a
party to the present petition. Thus, the present petition
is clearly the petitioners own initiative, and NAMFREL,
the direct party in the COMELECs April 2,
2007 Resolution, has absolutely no participation.
Issue: Whether the petitioner misuse Rule 65 of the
Rules of Court.
Ruling:The above features of the petition render it
fatally defective. The first defect lies in the petitioner’s
personality to file a petition for certiorari to address an
adjudicatory resolution of the COMELEC in which he
was not a party to, and where the direct party,
NAMFREL, does not even question the assailed
resolution. It would have been another matter if
NAMFREL had filed the present petition with the
petitioner as intervenor because of his personal
interest in the COMELEC ruling. He could have
intervened, too, before the COMELEC as an affected
party in NAMFRELs Manifestation and Request for
Examination. As a last recourse, the petitioner could
have expressly stated before this Court the procedural
problems he faced and asked that we suspend the
rules based on the unusual circumstances he could
have pointed out. None of these actions, however,
took place. Instead, the petitioner simply questioned
the COMELECs April 2, 2007 Resolution without
explaining to this Court his reason for using Rule 65 as
his medium, and from there, proceeded to attack the
validity of COMELEC Resolution 7798. Under these
questionable circumstances, we cannot now recognize
the petitioner as a party-in-interest who can directly
assail the COMELECs April 2, 2007 Resolution in an
original Rule 65 petition before this Court.
Although Section 1 of Rule 65 provides that
the special civil action of certiorari may be availed of
by a "person aggrieved" by the orders or decisions of a
tribunal, the term "person aggrieved" is not to be
construed to mean that any person who feels injured
by the lower courts order or decision can question the
said courts disposition via certiorari. To sanction a
contrary interpretation would open the floodgates to
numerous and endless litigations which would
undeniably lead to the clogging of court dockets and,
more importantly, the harassment of the party who
prevailed in the lower court.
The petition for certiorari under Rule 65,
however, is not available to any person who feels
injured by the decision of a tribunal, board or officer
exercising judicial or quasi-judicial functions. The
person aggrieved under Section 1 of Rule 65 who can
avail of the special civil action of certiorari pertains only
to one who was a party in the proceedings before the
court a quo.
The real party in interest who stands to benefit
or suffer from the judgment in the suit must prosecute
or defend an action. We have held that interest means
material interest, an interest in issue that the decision
will affect, as distinguished from mere interest in the
question involved, or a mere incidental interest.
The second fatal defect lies in the petitions
thrust; it opened with and professed to be an express
Resolution, but in its arguments solely attacks and
prays for the partial nullity of COMELEC Resolution
7798 issued in the exercise of the COMELECs rule
making power. This approach is fatally defective
because the petition thereby converts an express
challenge of an adjudicatory resolution made without
the requisite standing into a challenge for the nullity of
a regulation through an original Rule 65 petition
for certiorari.
What is significant in appreciating this defect in
the petition is the legal reality that the petitioner was
not without any viable remedy to directly challenge
Resolution 7798. A stand-alone challenge to the
regulation could have been made through appropriate
mediums, particularly through a petition for declaratory
relief with the appropriate Regional Trial Court under
the terms of Rule 63 of the Rules of Court, or through
a petition for prohibition under Rule 65 to prevent the
implementation of the regulation, as the petitioner
might have found appropriate to his situation. As
already mentioned, a challenge can likewise be made
in the course of validly contesting an adjudicatory
order of the COMELEC. Such challenge, however,
cannot be made in an original petition
for certiorari under Rule 65 dissociated from any
COMELEC action made in the exercise of its quasi-
judicial functions.
7. Worldwide Web Corporation v. People, G.R. Nos.
161106 and 161266, 13
January 2014, 713 SCRA 18
Facts:Petitioners filed the present Petitions under Rule
45 of the Rules of Court to set aside the Decision and
the Resolution of the CA reversing the quashal of the
search warrants previously issued by the RTC.
The applications for warrants to search the
office premises of petitioner WWC, and of petitioner
Planet Internet, alleged to be conducting illegal toll
bypass operations, which amounted to theft and
violation of PD No. 401 (Penalizing the Unauthorized
Installation of Water, Electrical or Telephone
Connections, the Use of Tampered Water or Electrical
Meters and Other Acts), to the damage and prejudice
of PLDT.
Petitioners also committed theft, because
through their misuse of PLDT phone lines/numbers
and equipment and with clear intent to gain, they
illegally stole business and revenues that rightly
belong to PLDT. Moreover, they acted contrary to the
letter and intent of Republic Act (R.A.) No. 7925,
because in bypassing the IGF of PLDT, they evaded
the payment of access and bypass charges in its favor
while “piggy-backing” on its multi-million dollar facilities
and infrastructure, thus stealing its business revenues
from international long distance calls. Further,
petitioners acted in gross violation of Memorandum
Circular No. 6-2-92 of the National
Telecommunications Commission (NTC) prohibiting
the use of customs premises equipment (CPE) without
first securing type approval license from the latter.
The RTC granted the application for search
warrants. Accordingly, the warrants were issued
against the office premises of petitioners, authorizing
police officers to seize various items.
Over a hundred items were seized, including
15 central processing units (CPUs), 10 monitors,
numerous wires, cables, diskettes and files, and a
laptop computer. Planet Internet notes that even
personal diskettes of its employees were confiscated;
and areas not devoted to the transmission of
international calls, such as the President’s Office and
the Information Desk, were searched. Voltage
regulators, as well as reserve and broken computers,
were also seized.
Petitioners WWC and Cherryll Yu, and Planet
Internet filed their respective motions to quash the
search warrants.
The RTC granted the motions to quash on the
ground that the warrants issued were in the nature of
general warrants. Thus, the properties seized under
the said warrants were ordered released to petitioners.
PLDT moved for reconsideration, but its
motion was denied on the ground that it had failed to
get the conformity of the City Prosecutor prior to filing
the motion, as required under Section 5, Rule 110 of
the Rules on Criminal Procedure.
Petitioners separately moved for
reconsideration of the CA ruling which was
subsequently denied.
Issue:PLDT assailed the quashal orders via an appeal
rather than a petition for certiorari under Rule 65 of the
Rules of Court.
Ruling:An order quashing a search warrant, which
was issued independently prior to the filing of a
criminal action, partakes of a final order that can be the
proper subject of an appeal.
Petitioners also claim that since the RTC ruling
on the motions to quash was interlocutory, it cannot be
appealed under Rule 41 of the Rules of Court. PLDT
should have filed a Rule 65 petition instead. Petitioners
cite, as authority for their position, Marcelo v. de
Guzman. The Court held therein as follows:
But is the order of Judge de Guzman denying
the motion to quash the search warrant and to return
the properties seized thereunder final in character, or
is it merely interlocutory?
In Cruz vs. Dinglasan, this Court, citing
American jurisprudence, resolved this issue thus:
Where accused in criminal proceeding has
petitioned for the return of goods seized, the order of
restoration by an inferior court is interlocutory and
hence, not appealable; likewise, a denial, by the US
District Court, of defendant’s petition for the return of
the articles seized under a warrant is such an
interlocutory order.
A final order is defined as one which disposes
of the whole subject matter or terminates a particular
proceeding or action, leaving nothing to be done but to
enforce by execution what has been determined; on
the other hand, an order is interlocutory if it does not
dispose of a case completely, but leaves something
more to be done upon its merits.
Tested against this criterion, the search
warrant issued xxx is indisputably of interlocutory
character because it leaves something more to be
done in the said criminal case, i.e., the determination
of the guilt of the accused therein.
Petitioners’ reliance upon Marcelo is
misplaced.
An application for a search warrant is a judicial
process conducted either as an incident in a main
criminal case already filed in court or in anticipation of
one yet to be filed. Whether the criminal case (of which
the search warrant is an incident) has already been
filed before the trial court is significant for the purpose
of determining the proper remedy from a grant or
denial of a motion to quash a search warrant.
Where the search warrant is issued as an
incident in a pending criminal case, as it was in
Marcelo, the quashal of a search warrant is merely
interlocutory. There is still “something more to be done
in the said criminal case, i.e., the determination of the
guilt of the accused therein.”
In contrast, where a search warrant is applied
for and issued in anticipation of a criminal case yet to
be filed, the order quashing the warrant (and denial of
a motion for reconsideration of the grant) ends the
judicial process. There is nothing more to be done
thereafter.
Thus, the CA correctly ruled that Marcelo does
not apply to this case. Here, the applications for search
warrants were instituted as principal proceedings and
not as incidents to pending criminal actions. When the
search warrants issued were subsequently quashed by
the RTC, there was nothing left to be done by the trial
court. Thus, the quashal of the search warrants were
final orders, not interlocutory, and an appeal may be
properly taken therefrom.
8. Kalipunan v. Robredo, G.R. No. 200903, 22 July
2014, 730 SCRA 322
PETITIONER: Kalipunan ng Damayang Mahihirap, Inc.
represented by its VP, Carlito Badion, et al
RESPONDENTS: Jessie Robredo in his capacity as
Secretary of DILG, et al
SUMMARY: Petitioners reside in the cites of San
Juan, Navotas and Quezon. LGU has a infrasture
project that requires the eviction and demolition of
illegally occupied areas by the petitioners. Petitioners
filed a case which argues that respondents must first
secure an eviction and/or demolition order from the
court prior to their implementation of Section 28 (a)
and (b) of RA 7279 and argued that the said RA was
unconstitutional.
DOCTRINE: To justify judicial review to be conducted
by the Judicial department, the petitioners
must establish facts that are necessarily linked
to the jurisdictional problem they presented in
this case.
Facts:
 The members of petitioners were/are
occupying parcels of land owned by and located in the
cities of San Juan, Navotas and Quezon.
 These LGUs sent the petitioners notices of
eviction and demolition pursuant to Section 28 (a) and
(b) of RA 7279 in order to give way to the
implementation and construction of infrastructure
projects in the areas illegally occupied by the
petitioners
 Section 28 (a) and (b) of RA 7279 authorize
evictions and demolitions without any court order
when:
o persons or entities occupy danger areas such
as esteros, railroad tracks, garbage dumps,
riverbanks, shorelines, waterways, and other public
places suchas sidewalks, roads, parks, and
playgrounds; and
o persons or entities occupy areas where
government infrastructure projects with available
funding are about to be implemented.
 On March 23, 2012, the petitioners directly
filed a petition for prohibition and mandamus before
the Court, seeking to compel the respondents to first
secure an eviction and/or demolition order from the
court prior to their implementation of Section 28 (a)
and (b) of RA 7279.
 Petitioners argue that they have:
o No plain, speedy and adequate remedy in the
ordinary course of law.
o the respondents gravely abused their
discretion in implementing Section 28 (a) and (b) of
RA 7279 which are patently unconstitutional for
warranting demolition without any court order.
(Section 6, Article 3 of the 1987 Constitution
expressly prohibits the impairment of liberty of
abode unless there is a court order.)
o Violate their right to adequate housing, a
universal right recognized in Article 25 of Universal
Declaration ofHuman Rights and Section 2 (a) of
RA 7279.
o Insist that they stand to be directly injured by
the respondents’threats of evictions and demolitions
had previously conducted evictions and demolitions
in a violent manner, contrary to Section 10, Article
13 of the 1987 Constitution.
o Also contend that the transcendental public
importance of the issues raised in this case clothes
them with legal standing.
 Respondent’s case:Respondents prays for the
outright dismissal of the petition for its serious
procedural defects:
 Petitioners Ignored the hierarchy of courts
 Petitioners incorrectly availed themselves of a
petition for prohibition and mandamus in assailing the
constitutionality of Section 28 (a) and (b) of RA 7279
o For a writ of prohibition is merely to prevent
the public respondent’s usurpation of power or
improper assumption of jurisdiction, on the other
hand, a writ of mandamus only commands the
public respondent to perform his ministerial
functions.
 The petitioners failed to particularly state the
grave abuse of discretion that the Mayor of Navotas
allegedly committed.
 The petition does not present any justiciable
controversy since the City of Navotas had already
successfully evicted the petitioners in San Roque,
Navotas
 Petition was filed out of time since the
petitioners were personally notified of the intended
eviction and demolition on September 23, 2011
 He further asserts that his faithful
implementation of Section 28 (a) and (b) of RA 7279,
which are presumed to be constitutional, cannotbe
equated to grave abuse of discretion.
Issues:
(1) Whether the petition should be dismissed for
serious procedural defects – YES
(2) Whether Section 28 (a) and (b) of RA 7279 are
violative of Sections 1 and 6, Article 3 of the 1987
Constitution - NO
(3) Whether or not the petion may be subject to
Judicial Review –NO
Ruling: Petition is dismissed
RATIO:
(1).
 The petitioners violated the principle of
hierarchy of courts when they directly filed the petition
before the Court.
 The petitioners appear to have forgotten that
the Supreme Court is a court of last resort, not a court
offirst instance.
 The petitioners wrongly availed themselves of
a petition for prohibition and mandamus.For a writ of
prohibition is merely to prevent the public respondent’s
usurpation of power or improper assumption of
jurisdiction, on the other hand, a writ of mandamus
only commands the public respondent to perform his
ministerial functions.
 The use of the permissive word "may" implies
that the public respondents have discretion when their
duty to execute evictions and/or demolitions shall be
performed. Where the words of a statute are clear,
plain, and free from ambiguity, it must be given its
literal meaning and applied without attempted
interpretation.
(2).
 The resolution of the constitutionality of
Section 28 (a) and (b) of RA 7279 is not the lis mota
(the cuase of the suit or action) of the case.
(3).
 The petition fails show the essential requisites
that would warrant the Court’s exercise of judicial
review which are:
(1) the existence of an actual case or
controversy involving a conflict of legal rights
susceptible of judicial determination;
(2) the existence of personal and substantial
interest on the part ofthe party raising the
constitutional question;
(3) recourse to judicial review is made at the
earliest opportunity; and
(4) theresolution of the constitutional question
must be necessary to the decision of the case.
 The petitioner who claims the
unconstitutionality of a law has the burden of showing
first that the case cannot be resolved unless the
disposition of the constitutional question that he raised
is unavoidable.
 Petitioners fail to show the necessity of
examining the constitutionality of Section 28 (a) and
(b) of RA 7279 in the light of Sections 1 and 6, Article 3
of the 1987 Constitution. In the case of Magkalas v.
NHA, this Court had already ruled on the validity of
evictions and demolitions without any court order.
 The petitioners failed to substantiate their
allegations that the public respondents gravely abused
their discretion in implementing Section 28 (a) and (b)
of RA 7279. Instead, they merely imputed jurisdictional
abuse to the public respondents through general
averments in their pleading, but without any basis to
support their claim.
Mandamus
1. Calim v. Guerrero, G.R. No. 156527, 5March
2007, 517 SCRA 412
Facts:
Petitioner Nemesio M. Calim operates Eastern
Laguna Tours and Tourist Services in Siniloan,
Laguna. Private respondent Roberto J. Acoba was the
Vice-Mayor of Siniloan, Laguna. On the other hand,
private respondents Paul Simon Z Go Homer R.
Serrano, Felipe A. Em, Eligio R. de Leon, Felipe V.
Castro, Gaudencio C. Salay, Andres V. Quintero,
Hector A. Maneja, and Sedfrey B. Realeza were
councilors of the Sangguniang Bayan of Siniloan,
Laguna.
On 23 November 2001, petitioner filed a
Complaint-Affidavit with the Office of the Deputy
Ombudsman for Luzon against private respondents for
violation of Section 3(e) of Republic Act No. 3019, as
amended, otherwise known as Anti-Graft and Corrupt
Practices Act, and Section 5 (a) of Republic Act No.
6713. The case was docketed as OMB-1-01-1121-K.
Petitioner alleged, inter alia, that on or
about 22 July 2001, he was given a mayors permit
from the municipal government of Siniloan, Laguna, for
his tours and tourist services business. On 31 July
2001, he applied for the registration of his business
name with the Regional Office of the Department of
Trade and Industry in San Pablo City, initially
indicating therein as first priority the
name, Mabuhay Tours and Tourist Services for his
business. He was, however, advised by the aforesaid
office to change the name to Eastern Laguna Tours
and Tourist Services, and thereafter, was issued a
Certification of Registration thereon on 29 August
2001. He informed Municipal Mayor Guillermo
L. Acero, through the Municipal Business License
Office, of the fact of change of the
name Mabuhay Tours and Tourist Services to Eastern
Laguna Tours and Tourist Services.
On 1 February 2002, six of the eleven private
respondents, namely, Felipe A. Em, Noel Laberinto,
Homer Serrano, Eligio de Leon, Hector A. Maneja, and
Sedfrey Realeza filed a joint Counter Affidavit.
Meanwhile, private respondents Vice-Mayor
Roberto J. Acoba, Paul Simon Go, Gaudencio
Salay and Andres Quintero filed a Rejoinder,averring
similar arguments as raised in the Counter-Affidavit
previously filed by their co-private
respondents. Reiterating their prayer that the
Complaint against them be dismissed for utter lack of
merit, they maintained thattheir action taken as
members of the Sangguniang Bayan of Siniloan,
Laguna, inrecommending the cancellation of the
mayor’s permit granted to petitioner was a product of
due deliberation and investigation. They insisted
that petitioner failed to prove that he was authorized to
engage as a common carrier to offer daily tours to
Metro Manila and Baguio from Siniloan, Laguna.
Hence, in openly engaging in the business of transport
services, petitioner violated the terms and conditions of
the mayors permit.
Office of the Deputy Ombudsman for Luzon,
recommended the dismissal of petitioners Complaint
for lack of probable cause.
Petitioner filed the instant Petition
for Mandamus, seeking to compel the public
respondents to file the appropriate information for
violation of Section 5(a) of Republic Act No. 6713,
against private
respondents Sangguniang Bayan members
of Siniloan, Laguna.
Sol-Gen dismissed for lack of merit.
Issue:Whether the public respondents unlawfully
neglected to perform an act which the law specifically
enjoins as a duty resulting from an office?
Held: NO.
It is elementary that mandamus applies as a
remedy only where petitioners right is founded clearly
on law and not when it is doubtful.In varying language,
the principle echoed and reechoed is that legal rights
may be enforced by mandamus only if those rights are
well-defined, clear and certain.A writ of mandamus can
be issued only when petitioner’s legal right to the
performance of a particular act which is sought to be
compelled is clear and complete.A clear legal right is a
right which is indubitably granted by law or is inferable
as a matter of law.Mandamus, therefore, is employed
to compel the performance, when refused, of a
ministerial duty, this being its chief use and not a
discretionary duty.
Mandamus will not issue to control or review
the exercise of discretion of a public officer where the
law imposes upon said public officer the right and duty
to exercise his judgment in reference to any matter in
which he is required to act.It is his judgment that is to
be exercised and not that of the court.
Essentially, what petitioner attacks in the
instant Petition for Mandamus is the order of the Office
of the Deputy Ombudsman for Luzon, in admonishing
the private respondents. The case partakes of an
administrative disciplinary nature.
Herein, petitioner was not able to establish his
entitlement to a writ of mandamus. Petitioner fails to
demonstrate that he has a clear legal right to compel
the public respondents to file criminal information
against the private respondents. Settled is the rule that
the Supreme Court will not interfere with the
Ombudsman’s exercise of his investigatory
and prosecutory powers without good and compelling
reasons to indicate otherwise.Said exercise of powers
is based upon his constitutional mandateand the
courts will not interfere in its exercise.Courts have
upheld the wide latitude of investigatory and
prosecutorial powers that the Ombudsman enjoys; and
such powers are virtually free from executive,
legislative or judicial intervention.The rationale of this
rule is based not only upon respect for the
investigatory and prosecutory powers that the Office of
the Ombudsman is granted under the present
Constitution,but upon practicality as well; otherwise,
the functions of the courts would be perilously bound
by numerous petitions assailing the result of the
investigatory proceedings conducted by the Office, in
much the same way that the courts would be saturated
if compelled to review the prosecutors exercise of
discretion each time they decide to file an information
or dismiss a complaint.The discretion to prosecute or
dismiss a complaint filed before it is lodged in the
Office of the Ombudsman itself. To compel the
Ombudsman to further pursue a criminal case against
the private respondents, as petitioner would have it, is
outside the ambit of the courts.
Corollary, Section 2, Rule II of the Rules of
Procedure of the Office of the Ombudsman which
runs:
SEC. 2. Evaluation. Upon evaluating the
complaint, the investigating officer shall recommend
whether it may be:
a) Dismissed outright for want of palpable
merit;
b) referred to respondent for comment;
c) Indorsed to the proper government office or
agency this has jurisdiction over the case
d) forwarded to the appropriate office or official
for fact-finding investigation;
e) Referred for administrative adjudication; or
f) Subjected to a preliminary investigation.
And is reinforced by Section 3, Rule III of the
same Rules, hereby quoted:
SEC. 3. How initiated. An administrative case
may be initiated by a written complaint under oath
accompanied by affidavits of witnesses and other
evidences in support of the charge. An administrative
proceeding may also be ordered by the Ombudsman
or the respective Deputy Ombudsman on his initiative
or on the basis of a complaint originally filed as a
criminal action or a grievance complaint or request for
assistance.
Clearly provides the Office of the Ombudsman
with wide latitude of discretion in determining what and
which acts to prosecute criminally and/or
administratively. In the instant case, the Office of the
Deputy Ombudsman opted, based on the evidence on
hand, to only administratively admonish the private
respondents, a penalty which is in fine tune with the
mandate of Rule IV, Section 52 (C) (13) of the Uniform
Rules on Administrative Cases in the Civil Service,
which provides:
SEC. 52.Classification of Offenses.
Administrative offenses with corresponding penalties
are classified into grave, less grave or light, depending
on their gravity or depravity and effects on the
government service.
C. The following are light offenses with
corresponding penalties:
 13. Failure to act promptly on letters and
requests within fifteen (15) days from receipt, except
as otherwise provided in the rules implementing the
code of conduct and ethical standards for public
officials and employees: 1st Offense >Reprimand; 2nd
Offense > Suspension for one (1) to thirty (30)
days; 3rd Offense > Dismissal.
A graver reason that impels this court to reject
petitioner’s plea is the mode taken by petitioner in
elevating the case to this court. In the case of Fabian
v. Desierto, this court ruled that appeals, if
availing,from decisions of the Office of the
Ombudsman in administrative disciplinary cases
should be brought to the Court of Appeals under the
provisions of Rule 43[ of the Rules of
Court. In Lanting v. Ombudsman,we underscored the
catena of cases subsequent to the Fabian ruling, thus:
In Fabian v. Desierto, we held that only
appeals from the decisions of the Office of the
Ombudsman in administrative disciplinary cases
should be taken to the Court of Appeals under the
provisions of Rule 43 (of the 1997 Revised Rules of
Civil Procedure). We reiterated this ruling in Namuhe
vs. Ombudsman and recently in Barata vs. Abalos, Jr.
and Coronel vs AnianoDesierto, as Ombudsman, and
Pedro Sausal, Jr.
There is, verily, a limited applicability of this
courts pronouncement in Fabian. The Fabian ruling
does not extend to orders or decisions of the
Ombudsman in criminal cases. Kuizon v.
Ombudsmanand Mendoza-Arce v. Office of the
Ombudsman (Visayas), instructed that petitions for
certiorari questioning the Ombudsman’s orders or
decisions in criminal cases should be filed in the
Supreme Court and not the Court of Appeals. This is
the prevailing rule. The Office of the Deputy
Ombudsman, in admonishing the private respondents,
deemed the matter to be one in the nature of an
administrative disciplinary case. The petitioner, in filing
the instant Petition for Mandamus before this Court,
took a route that is antagonistic to prevailing rules and
jurisprudence. WHEREFORE, under the foregoing
premises, the instant Petition for Mandamus is
DISMISSED.
2.Uy Kiao Eng v. Lee, G.R. No. 176831, 15 January
2010, 610 SCRA 211
Facts: Respondent Nixon Lee filed a petition for
mandamus with damages against his mother Uy Kiao
Eng, herein petitioner, before the RTC of Manila to
compel petitioner to produce the holographic will of his
father so that probate proceedings for the allowance
thereof could be instituted. Respondent had already
requested his mother to settle and liquidate the
patriarch’s estate and to deliver to the legal heirs their
respective inheritance, but petitioner refused to do so
without any justifiable reason. Petitioner denied that
she was in custody of the original holographic will and
that she knew of its whereabouts. The RTC heard the
case. After the presentation and formal offer of
respondent’s evidence, petitioner demurred,
contending that her son failed to prove that she had in
her custody the original holographic will. The RTC, at
first, denied the demurrer to evidence. However, it
granted the same on petitioner’s motion for
reconsideration. Respondent’s motion for
reconsideration of this latter order was denied. Hence,
the petition was dismissed.
Aggrieved, respondent sought review from the
appellate court. The CA initially denied the appeal for
lack of merit. Respondent moved for reconsideration.
The appellate court granted the motion, set aside its
earlier ruling, issued the writ, and ordered the
production of the will and the payment of attorney’s
fees. It ruled this time that respondent was able to
show by testimonial evidence that his mother had in
her possession the holographic will. Dissatisfied with
this turn of events, petitioner filed a motion for
reconsideration. The appellate court denied this
motion. Left with no other recourse, petitioner brought
the matter before this Court, contending in the main
that the petition for mandamus is not the proper
remedy and that the testimonial evidence used by the
appellate court as basis for its ruling is inadmissible.
Issue:Whether or not mandamus is the proper remedy
of the respondent.
Held: The Court cannot sustain the CA’s issuance of
the writ.
Mandamus is a command issuing from a court
of law of competent jurisdiction, in the name of the
state or the sovereign, directed to some inferior court,
tribunal, or board, or to some corporation or person
requiring the performance of a particular duty therein
specified, which duty results from the official station of
the party to whom the writ is directed or from operation
of law. This definition recognizes the public character
of the remedy, and clearly excludes the idea that it
may be resorted to for the purpose of enforcing the
performance of duties in which the public has no
interest. The writ is a proper recourse for citizens who
seek to enforce a public right and to compel the
performance of a public duty, most especially when the
public right involved is mandated by the Constitution.
As the quoted provision instructs, mandamus will lie if
the tribunal, corporation, board, officer, or person
unlawfully neglects the performance of an act which
the law enjoins as a duty resulting from an office, trust
or station.
The writ of mandamus, however, will not issue
to compel an official to do anything which is not his
duty to do or which it is his duty not to do, or to give to
the applicant anything to which he is not entitled by
law. Nor will mandamus issue to enforce a right which
is in substantial dispute or as to which a substantial
doubt exists, although objection raising a mere
technical question will be disregarded if the right is
clear and the case is meritorious. As a rule,
mandamus will not lie in the absence of any of the
following grounds: [a] that the court, officer, board, or
person against whom the action is taken unlawfully
neglected the performance of an act which the law
specifically enjoins as a duty resulting from office,
trust, or station; or [b] that such court, officer, board, or
person has unlawfully excluded petitioner/relator from
the use and enjoyment of a right or office to which he
is entitled. On the part of the relator, it is essential to
the issuance of a writ of mandamus that he should
have a clear legal right to the thing demanded and it
must be the imperative duty of respondent to perform
the act required.
Recognized further in this jurisdiction is the
principle that mandamus cannot be used to enforce
contractual obligations. Generally, mandamus will not
lie to enforce purely private contract rights, and will not
lie against an individual unless some obligation in the
nature of a public or quasi-public duty is imposed. The
writ is not appropriate to enforce a private right against
an individual.] The writ of mandamus lies to enforce
the execution of an act, when, otherwise, justice would
be obstructed; and, regularly, issues only in cases
relating to the public and to the government; hence, it
is called a prerogative writ. To preserve its prerogative
character, mandamus is not used for the redress of
private wrongs, but only in matters relating to the
public.
Moreover, an important principle followed in
the issuance of the writ is that there should be no
plain, speedy and adequate remedy in the ordinary
course of law other than the remedy of mandamus
being invoked. In other words, mandamus can be
issued only in cases where the usual modes of
procedure and forms of remedy are powerless to
afford relief. Although classified as a legal remedy,
mandamus is equitable in its nature and its issuance is
generally controlled by equitable principles. Indeed,
the grant of the writ of mandamus lies in the sound
discretion of the court.
In the instant case, the Court, without
unnecessarily ascertaining whether the obligation
involved here—the production of the original
holographic will—is in the nature of a public or a
private duty, rules that the remedy of mandamus
cannot be availed of by respondent Lee because there
lies another plain, speedy and adequate remedy in the
ordinary course of law. Let it be noted that respondent
has a photocopy of the will and that he seeks the
production of the original for purposes of probate. The
Rules of Court, however, does not prevent him from
instituting probate proceedings for the allowance of the
will whether the same is in his possession or not.
There being a plain, speedy and adequate
remedy in the ordinary course of law for the production
of the subject wills, the remedy of mandamus cannot
be availed of. Suffice it to state that respondent Lee
lacks a cause of action in his petition. Thus, the Court
grants the demurrer.
Rule 67 – Expropriation
1. National Housing v. Heirs Guivelondo, G.R. No.
154411, 19 June 2003, 404 SCRA 389
Facts:
Ø NHA filed with RTC of Cebu Branch 11 a complaint
as amended regarding the eminent domain against
Heirs of Guivelondo docketed as civil case.
Ø The petitioner alleged that defendant heirs et. al
were the rightful private owners of the land which the
petitioner intends to develop a socialized housing
project.
Ø The respondent heirs filed a manifestation of
waiving their objections to petitioners power to
expropriate their properties, thereafter trial court
declares plaintiff has a right to expropriate the
properties of the defendant heirs and appointed 3
commissioners who ascertain the just compensation
of the said properties be fixed at PHP 11, 200.00 per
square meter.
Ø Petitioner NHA filed 2 motion for reconsideration
that assails inclusion of lots 12, 13 and 19 as well as
the amount of just compensation, however the
respondents filed a motion for reconsideration of the
trial courts partial judgment but the trial court issued an
omnibus order to deny the motion of respondent
granting the petitioner’s motion and of just
compensation.
Ø Petitioner filed with the Court of Appeals a petition
for certiorari. Thereafter, heirs filed a motion for
execution since the trial court move for the entry of the
partial judgment as modified by the omnibus order.
Ø The Court of Appeals rendered dismissal of the
petition for certiorari on the ground of partial judgment
and omnibus order became a final and executory when
petitioner failed to appeal.
Ø The petitioner filed a motion for reconsideration but
then it was denied by the court. The courts of appeals
serve on petitioner for a notice of levy pursuant to writ
of Execution and a Notice of third garnishment from
the Land bank of the Philippines.
Issue:
1. Whether or not the state can be compelled and
coerced by the courts to continue with its inherent
power of eminent domain.
2. Whether or not judgment has become final and
executory and if estoppel or laches applies to
government.
3. Whether or not writs of execution and
garnishment may be issued against the state in an
expropriation where in the exercise of power of
eminent domain will not serve public use or purpose
Ruling:
Ø The state as represented by the NHA for housing
project can continue its inherent power of eminent
domain provided that the just compensation for the
property sought is taken. After the rendition of such
order the plaintiff shouldn’t be permitted to dismiss or
discontinue such proceedings except on such terms of
the court be equitable.
Ø The order was final after the non-appealing of the
petitioner as the lawful right to expropriate the
properties of respondent heirs of Guivelondo.
Ø Petitioner NHA are not exempt from garnishment or
execution, although it is public in character since it is
arbitrary and capricious for a government entity to
initiate expropriation proceedings that seize a private
owner’s property.
Ø Petition was DENIED and the trial court’s decision
denying petitioner’s motion to dismiss expropriation
proceeding was AFFIRMED. Its injunctive relief
against the levy and garnishment of its funds and
personal properties was also DENIED. The temporary
Restraining Order was LIFTED
Ø In order to resolve the issue of the propriety of the
garnishment against petitioners’ funds and personal
properties, there is a need to first determine its true
character as a government entity. Generally, funds and
properties of the government cannot be the object of
garnishment proceedings even if the consent to be
sued had been previously granted and the state
liability adjudged
Ø The universal rule that where the State gives its
consent to be sued by private parties either by general
or special law, it may limit claimants action only up to
the completion of proceedings anterior to the stage of
execution and that the power of the Courts ends when
the judgment is rendered, since government funds and
properties may not be seized under writs of execution
or garnishment to satisfy such judgments, is based on
obvious considerations of public policy. Disbursements
of public funds must be covered by the corresponding
appropriation as required by law. The functions and
public services rendered by the State cannot be
allowed to be paralyzed or disrupted by the diversion
of public funds from their legitimate and specific
objects, as appropriated by law.
Ø However, if the funds belong to a public
corporation or a government-owned or controlled
corporation which is clothed with a personality of its
own, separate and distinct from that of the
government, then its funds are not exempt from
garnishment
2. Masikip v. City of Pasig, G.R. No. 136349, 23
January 2006, 479 SCRA 391
Facts:Petitioner Lourdes Dela Paz Masikip is the
registered owner of a parcel of land with an area of
4,521 square meters located at Pag-Asa, Caniogan,
Pasig City, Metro Manila.
In a letter dated January 6, 1994, the then
Municipality of Pasig, now City of Pasig, respondent,
notified petitioner of its intention to expropriate a 1,500
square meter portion of her property to be used for the
"sports development and recreational activities" of the
residents... of Barangay Caniogan.
On May 2, 1994, petitioner sent a reply to
respondent stating that the intended expropriation of
her property is unconstitutional, invalid, and
oppressive, as the area of her lot is neither sufficient
nor suitable to "provide land opportunities to deserving
poor sectors of our... community."
In its letter of December 20, 1994, respondent
reiterated that the purpose of the expropriation of
petitioner's property is "to provide sports and
recreational facilities to its poor residents."
Subsequently, on February 21, 1995,
respondent filed with the trial court a complaint for
expropriation.
On April 25, 1995, petitioner filed a Motion to
dismiss the complaint.
On May 7, 1996, the trial court issued an
Order denying the Motion to Dismiss, on the ground
that there is a genuine necessity to expropriate the
property for the sports and recreational activities of the
residents of Pasig.
Issues:Whether there is indeed a genuine necessity
for the taking of the property
Ruling:The right to take private property for public
purposes necessarily originates from "the necessity"
and the taking must be limited to such necessity the
very foundation of... the right to exercise eminent
domain is a genuine necessity and that necessity must
be of a public character. Moreover, the ascertainment
of the necessity must precede or accompany and not
follow the taking of the land.
Necessity within the rule that the particular
property to be expropriated must be necessary, does
not mean an absolute but only a reasonable or
practical necessity, such as would combine the
greatest benefit to the public with the least
inconvenience and expense to the condemning party
and the property owner consistent with such benefit.
Applying this standard, we hold that respondent City of
Pasig has failed to establish that there is a genuine
necessity to expropriate petitioner's property.
Our scrutiny of the records shows that the
Certification issued by the Caniogan BarangayCouncil,
indicates that the intended beneficiary is the
Melendres Compound Homeowners Association, a
private, non-profit organization, not the residents of
Caniogan. It can be gleaned that the members of the
said Association are desirous of having their own
private playground and recreational facility. Petitioner's
lot is the nearest vacant space available. The purpose
is, therefore, not clearly and categorically public. The
necessity has not... been shown, especially
considering that there exists an alternative facility for
sports development and community recreation in the
area, which is the Rainforest Park, available to all
residents of Pasig City, including those of Caniogan.
WHEREFORE, the petition for review is
GRANTED.
Principles:Where the taking by the State of private
property is done for the benefit of a small community
which seeks to have its own sports and recreational
facility, notwithstanding that there is such a
recreational facility only a short distance away, such
taking cannot be considered to be for public use. Its
expropriation is not valid.
3. Republic v. Ortigas and Co. Ltd. Partnership,
G.R. No. 171496, 3 March 2014, 717 SCRA 601
Rule 68 - Foreclosure of Real Estate Mortgage
1. BPI Family v. Coscolluela, G.R. No. 167724, 27
June 2006, 493 SCRA 472
Facts
 Respondent and her late husband Oscar
obtained an agricultural sugar crop loan from Far
East Bank & Trust Co. (later merged with BPI)
for crop years 1997 and 1998. In the book of Far
East, the loan account was treated as a single
account, and evidenced by 67 promissory notes.
 Sps. Coscolluela executed a real estate
mortgage in favor of FEBTC over their parcel of
land as security of loans on credit
accommodation obtained and those that may
be obtained.
 Under the terms and conditions of the real estate
mortgage, in the event of failure to pay the
mortgage obligation or any portion thereof, the
entire principal, interest, penalties, and other
charges shall be immediately due; and Far East
mat foreclose the same extra judicially.
 For failure to settle outstanding obligation on the
maturity dates, Far East sent a final demand
letter to respondent demanding payment.
 Since respondent failed to settle her obligation,
Far East filed a petition for the extrajudicial
foreclosure of the mortgaged property, but only
only for 31 of the promissory notes.
 During pendency of said case, Far East filed a
complaint for collection of money representing
the amounts for the 36 other promissory notes.
 In respondent’s answer, she alleged that the
complaint was barred by litis pendentia for the
pending petition for the extrajudicial foreclosure
of the REM.
 Petitioner presented a loan officer as sole
witness, who testified that respondent were
granted a loan, which was a “single loan
account.”
 Respondent filed a Demurrer to Evidence
contending that the loan officer’s admission, that
there is only one loan account secured by the
REM thus barred the personal action for
collection. She insisted that the filing of said
complaint should be dismissed.
 Petitioner opposed the demurrer, stating that
each promissory note constituted a separate
contract.
 The trial court denied the demurrer on the
ground that each note covered a loan distinct
from the others.
 Respondent filed MR but denied, prompting her
to file a certiorari petition under Rule 65 with CA.
 CA granted the petitioner, stating that the
remedies sought are alternative and not
cumulative. Thus, in denying the demurrer, RTC
committed grave abuse of discretion.
 Petitioner filed MR but it was denied. Hence, this
petition.
Issues &Ratio.
1. WON collection suit should be dismissed –
YES
Section 3, Rule 2 of the 1997 Rules of Civil
Procedure provides that a party may not institute one
suit for a single cause of action, and, if two or more
suits are instituted on the basis of the same cause of
action, the filing of one on a judgment upon the merits
in any one is available as a ground for the dismissal of
others. The law does not permit the owner of a single
of entire cause of action or an entire or indivisible
demand to divide and split the cause to make it the
subject of several actions.
The true rule which determined whether a
party has only a single and entire cause of action is
whether the entire amount arises from one and the
same act or contract or the several parts arise from
distinct and different acts. As gleaned from the plain
terms of the REM, the real estate of respondent served
as a continuing security liable for obligations already
obtainer and obligations obtained thereafter. In this
case, the action of petitioner is anchored on one and
the same cause: the nonpayment of respondent.
Though the debt may be covered by several
promissory notes and is covered by a real estate
mortgage, the latter is subsidiary to the former and
both refer to one and the same obligation. A mortgage
creditor may institute two alternative remedies against
the debtor, either to collect debt or to foreclose
mortgage, but not both.
DECISION.
WHEREFORE instant petition is dismissed for lack of
merit.
2. Monzon v. Sps. Relova, G.R. No. 171827, 17
September 2008, 565 SCRA 514
Facts: On 18 October 2000, the spouses James and
Maria Rosa Nieves Relova and the spouses
Bienvenido and Eufracia Perez, respondents before
this Court, filed against Atty. Ana Liza Luna, Clerk of
Court of Branch 18 of the RTC of Tagaytay City, and
herein petitioner Teresita Monzon an initiatory pleading
captioned as a Petition for Injunction. The case, which
was filed before the same Branch 18 of the RTC of
Tagaytay City, was docketed as Civil Case No. TG-
2069.
In their Petition for Injunction, respondents
alleged that Monzon executed a promissory note in
favor of the spouses Perez for the amount of
P600,000.00, with interest of five percent per month,
payable on or before 28 December 1999. This was
secured by a 300-square meter lot in Barangay
Kaybagal, Tagaytay City. Denominated as Lot No. 2A,
this lot is a portion of Psu-232001, covered by Tax
Declaration No. 98-008-1793. On 31 December 1998,
Monzon executed a Deed of Absolute Sale over the
said parcel of land in favor of the spouses Perez.
On 23 October 1999, the Coastal Lending
Corporation extrajudicially foreclosed the entire 9,967-
square meter property covered by Psu-232001,
including the portions mortgaged and subsequently
sold to respondents. According to the Petition for
Injunction, Monzon was indebted to the Coastal
Lending Corporation in the total amount of
P3,398,832.35. The winning bidder in the extrajudicial
foreclosure, Addio Properties Inc., paid the amount of
P5,001,127.00, thus leaving a P1,602,393.65 residue.
According to respondents, this residue amount, which
is in the custody of Atty. Luna as Branch Clerk of
Court, should be turned over to them pursuant to
Section 4, Rule 68 of the Revised Rules of Civil
Procedure.
The Decision also mentioned that the Order
allowing the ex parte presentation of evidence by
respondents was due to the continuous and incessant
absences of petitioner and counsel.
On 25 April 2002, Monzon filed a Notice of
Appeal, which was approved by the trial court. Monzon
claims that the RTC gravely erred in rendering its
Decision immediately after respondents presented
their evidence ex parte without giving her a chance to
present her evidence, thereby violating her right to due
process of law.
Issue: Whether respondents Petition for Injunction had
failed to state a cause of action.
Held: Section 4, Rule 68 of the Rules of Court, which
is the basis of respondents alleged cause of action
entitling them to the residue of the amount paid in the
foreclosure sale, provides as follows:
SEC. 4. Disposition of proceeds of sale.The
amount realized from the foreclosure sale of the
mortgaged property shall, after deducting the costs of
the sale, be paid to the person foreclosing the
mortgage, and when there shall be any balance or
residue, after paying off the mortgage debt due,
the same shall be paid to junior encumbrancers in
the order of their priority, to be ascertained by the
court, or if there be no such encumbrancers or there
be a balance or residue after payment to them, then to
the mortgagor or his duly authorized agent, or to the
person entitled to it.
However, Rule 68 governs the judicial
foreclosure of mortgages. Extra-judicial foreclosure of
mortgages, which was what transpired in the case at
bar, is governed by Act No. 3135,[11] as amended by
Act No. 4118, Section 6 of Republic Act No. 7353,
Section 18 of Republic Act No. 7906, and Section 47
of Republic Act No. 8791. A.M. No. 99-10-05-0, issued
on 14 December 1999, provides for the procedure to
be observed in the conduct of an extrajudicial
foreclosure sale. Thus, we clarified the different types
of sales in Supena v. Dela Rosa, to wit:
Any judge, worthy of the robe he dons, or any
lawyer, for that matter, worth his salt, ought to know
that different laws apply to different kinds of sales
under our jurisdiction. We have three different types of
sales, namely: an ordinary execution sale, a judicial
foreclosure sale, and an extrajudicial foreclosure sale.
An ordinary execution sale is governed by the
pertinent provisions of Rule 39 of the Rules of Court on
Execution, Satisfaction and Effect of Judgments. Rule
68 of the Rules, captioned Foreclosure of Mortgage,
governs judicial foreclosure sales. On the other hand,
Act No. 3135, as amended by Act No. 4118, otherwise
known as "An Act to Regulate the Sale of Property
under Special Powers Inserted in or Annexed to Real
Estate Mortgages," applies in cases of extrajudicial
foreclosure sales of real estate mortgages.
Unlike Rule 68, which governs judicial
foreclosure sales, neither Act No. 3135 as amended,
nor A.M. No. 99-10-05-0 grants to junior
encumbrancers the right to receive the balance of the
purchase price. The only right given to second
mortgagees in said issuances is the right to redeem
the foreclosed property pursuant to Section 6 of Act
No. 3135, as amended by Act No. 4118, which
provides:
Sec. 6. Redemption. In all cases in which an
extrajudicial sale is made under the special power
hereinbefore referred to, the debtor, his successors in
interest or any judicial creditor or judgment creditor of
said debtor, or any person having a lien on the
property subsequent to the mortgage or deed of
trust under which the property is sold, may redeem
the same at any time within the term of one year
from and after the date of the sale; and such
redemption shall be governed by the provisions of
sections four hundred and sixty-four to four hundred
and sixty- six, inclusive, of the Code of Civil Procedure,
in so far as these are not inconsistent with this Act.
Even if, for the sake of argument, Rule 68 is to
be applied to extrajudicial foreclosure of mortgages,
such right can only be given to second mortgagees
who are made parties to the (judicial) foreclosure.
While a second mortgagee is a proper and in a sense
even a necessary party to a proceeding to foreclose a
first mortgage on real property, he is not an
indispensable party, because a valid decree may be
made, as between the mortgagor and the first
mortgagee, without regard to the second mortgage;
but the consequence of a failure to make the second
mortgagee a party to the proceeding is that the lien of
the second mortgagee on the equity of redemption is
not affected by the decree of foreclosure.
A cause of action is the act or omission by
which a party violates the right of another. A cause of
action exists if the following elements are present: (1)
a right in favor of the plaintiff by whatever means and
under whatever law it arises or is created; (2) an
obligation on the part of the named defendant to
respect or not to violate such right; and (3) an act or
omission on the part of such defendant violative of the
right of plaintiff or constituting a breach of the
obligation of defendant to the plaintiff for which the
latter may maintain an action for recovery of
damages.[17] In view of the foregoing discussions, we
find that respondents do not have a cause of action
against Atty. Ana Liza Luna for the delivery of the
subject amounts on the basis of Section 4, Rule 68 of
the Rules of Court, for the reason that the foregoing
Rule does not apply to extrajudicial foreclosure of
mortgages.
Rule 69 – Partition
1. Balo v. Court of Appeals, G.R. No. 129704, 30
September 2005, 471 SCRA 227
Facts: A complaint for Judicial Partition of Real
Properties and Accounting with Damages was filed by
private respondent Josefina Garrido against petitioners
before the RTC. She alleged in her COMPLAINT that:
Private respondent and petitioners are the co-owners
of undivided parcels of land located at Mayorga, Leyte.
The described parcels of lands were originally
owned by the spouses Eugenio Balo, Sr. and Ma.
Pasagui-Balo and they were survived by their 2
children: Ulpiano, Sr. and Maximino (deceased)
The lands were inherited into two (2) equal
shares by their 2 children;
Plaintiff is the daughter of the late Maximino Balo and
Salvacion Sabulao, who after her father’s death, had
inherited her father’s share of the inheritance;
Ulpiano Balo, Sr. aside from being the son of Eugenio
Balo, Sr., is married to Felicidad Superio, and is the
father of all the other defendants in this case;
Immediately upon the death of Eugenio Sr.,
petitioners took possession of the properties without
her knowledge and consent.
She requested for the properties’ fair
and equal partition, but petitioners refused her
proposal.
In lieu of an Answer, petitioners filed a MTD on
the following grounds:(1)Failure to state a COA for
failing to allege that she is a legitimate child and to
allow her to inherit from the estate in representation of
her father would be to permit intestate succession
by an illegitimate child.(2)The complaint does not show
that the estate of the spouses Eugenio and Maria Balo
have been settled and its obligations have been
paid.(3)The properties enumerated in the
Complaint were proceeded against by way
of execution to satisfy a judgment against Eugenio and
Maria Balo. Subsequently, defendant Ulpiano
repurchased the said properties and has been,
together with his children, openly, exclusively and
adversely in possession of the real estate properties in
question.
The RTC denied the MTD for lack of merit.
No evidence may be alleged or considered to
test the sufficiency of the complaint except the very
facts pleaded therein. It would be improper to inject
into the allegation, facts not alleged and use them as
basis for the decision on the motion.
The Court is not permitted to go beyond and
outside of the allegations in the complaint for data or
facts.
Therefore, the allegation of illegitimacy and
claim of absolute ownership are modifications and
unreasonable inferences. If there is doubt to the truth
of the facts averred in the complaint, the Court does
not dismiss thecomplaint but requires an answer and
proceeds to hear the case on the merit.
COURT OF APPEALS’ RULING (PetCert): CA
accordingly dismissed the same because: An
order denying a MTD is basically interlocutory in
character and cannot be the proper subject of a
petition for certiorari. The proper procedure is to
proceed with the trial and if the decision be adverse to
the movant, the remedy is to take an appeal from said
decision, assigning as one of the errors therefore the
denial of the motion to dismiss.
CA denied the MR. Hence this petition for review
under Rule 45 of the ROC.
Issue: Whether or not the action for judicial partition
and accounting has prescribed, was waived, or was
otherwise abandoned.
Ruling:
No. It is noteworthy that the motion to dismiss
filed by the petitioners, did, not Ipso facto establish
prescription. Dismissal prior to answer
is premature. An action for partition is at once an
action for declaration of co-ownership and for
segregation and conveyance of a determine portion of
the properties involved. If the defendant asserts
exclusive title over the property, the action for partition
should not be dismissed. Rather, the court should
resolve the case and if the plaintiff is unable to sustain
his claimed status as a co-owner, the court should
dismiss the action, not because the wrong remedy was
availed of, but because no basis for requiring the
defendant to submit to partition. If, on the other hand,
the court after trial should find the existence of co-
ownership among the parties, the court may and
should order the partition of the properties in the same
action.
2. Quintos v. Nicolas, G.R. No. 201252, 16 June
2014, 726 SCRA 482
Facts:
Petitioners and respondents are siblings. In
1999, both their parents passed away, leaving to their
10 children ownership over the subject property. An
action for partition was subsequently brought before
the RTC. However, for failure of the parties and their
counsels to appear despite due notice, the case was
dismissed.
Thereafter, the respondent siblings executed a
Deed of Adjudication to transfer the property in favor of
the 10 siblings. As a result, the old TCT was cancelled
and the Registry of Deeds issued a new one. The
respondents subsequently sold their 7/10 undivided
share in favor of the spouses Candelario.
The petitioners filed a complaint for Quieting of
Title and Damages against the respondents.
Respondents countered that petitioners’ cause
of action was already barred by estoppel when
sometime in 2006, one of petitioners offered to buy the
7/10 undivided share of the respondent siblings. They
point out that this is an admission on the part of
petitioners that the property is not entirely theirs. In
addition, they claimed that Bienvenido and Escolastica
Ibarra mortgaged the property but because of financial
constraints, respondent spouses Candelario had to
redeem the property in their behalf. Not having been
repaid by Bienvenido and Escolastica, the Candelarios
accepted from their co-respondents their share in the
subject property as payment. Lastly, respondents
sought, by way of counterclaim, the partition of the
property.
The RTC dismissed the petitioner’s complaint,
ruling that the respondent siblings were entitled to their
respective shares and that the subsequent transfer of
interest in favor of the respondent spouses Candelario
was upheld. Likewise, the court ordered the partition
of the subject lots between the herein plaintiffs and the
defendants-spouses Candelarios.
CA affirmed the decision of the RTC.
Issues:
1. Whether or not the petitioners were able to prove
ownership over the property;
2. Whether or not the respondents’ counterclaim for
partition is already barred by laches or res judicata;
and
3. Whether or not the CA was correct in approving the
subdivision agreement as basis for the partition of the
property.
Ruling:
The petition is meritorious in part.
1. Petitioners were not able to prove equitable
title or ownership over the propertyFor an action to
quiet title to prosper, two indispensable requisites must
concur, namely: (1) the plaintiff or complainant has a
legal or equitable title to or interest in the real property
subject of the action; and (2) the deed, claim,
encumbrance, or proceeding claimed to be casting
cloud on the title must be shown to be in fact invalid or
inoperative despite its prima facie appearance of
validity or efficacy. In the case at bar, the CA correctly
observed that petitioners’ cause of action must
necessarily fail mainly in view of the absence of the
first requisite.
Their alleged open, continuous, exclusive, and
uninterrupted possession of the subject property is
belied by the fact that respondent siblings, in 2005,
entered into a Contract of Lease with the Avico
Lending Investor Co. over the subject lot without any
objection from the petitioners.
The cardinal rule is that bare allegation of title
does not suffice. The burden of proof is on the plaintiff
to establish his or her case by preponderance of
evidence
2. The counterclaim for partition is not barred
by prior judgment.
Dismissal with prejudice under Rule 17, Sec. 3
of the Rules of Court cannot defeat the right of a co-
owner to ask for partition at any time, provided that
there is no actual adjudication of ownership of shares
yet. Pertinent hereto is Article 494 of the Civil Code.
Between dismissal with prejudice under Rule
17, Sec. 3 and the right granted to co-owners under
Art. 494 of the Civil Code, the latter must prevail. To
construe otherwise would diminish the substantive
right of a co-owner through the promulgation of
procedural rules. Substantive law cannot be amended
by a procedural rule. This further finds support in Art.
496 of the New Civil Code.
Thus, for the Rules to be consistent with
statutory provisions, We hold that Art. 494, as cited, is
an exception to Rule 17, Sec. 3 of the Rules of Court
to the effect that even if the order of dismissal for
failure to prosecute is silent on whether or not it is with
prejudice, it shall be deemed to be without prejudice.
In the case at bar, the co-ownership, as
determined by the trial court, is still subsisting 30-70 in
favor of respondent spouses Candelario.
Consequently, there is no legal bar preventing herein
respondents from praying for the partition of the
property through counterclaim.
3. The CA erred in approving the Agreement
for Subdivision
Agreement of Subdivision allegedly executed
by respondent spouses Candelario and petitioners
cannot serve as basis for partition, for, as stated in the
pre-trial order, herein respondents admitted that the
agreement was a falsity and that petitioners never took
part in preparing the same.It, therefore, lacked the
essential requisite of consent.
WHEREFORE, premises considered, the
petition is hereby PARTLY GRANTED. The assailed
Decision and Resolution of the Court of Appeals in CA-
G.R. CV No. 98919 dated July 8, 2013 and November
22, 2013, respectively, are hereby AFFIRMED with
MODIFICATION. The case is hereby REMANDED to
the RTC, Branch 68 in Camiling, Tarlac for purposes of
partitioning the subject property in accordance with
Rule 69 of the Rules of Court.
Rule 70 - Forcible Entry and Unlawful Detainer
1. Acaylar v. Harayo, G.R. No. 176995, 30 July 2008,
560 SCRA 624
Facts: Danilo Harayo filed a complaint with the MTCC
against Pablo Acaylar, son of the spouses Acaylar for
forcible entry. He alleged that he acquired the property
from the spouses Acaylar by virtue of a Deed of Sale
executed on September 14 2004 and took possession
of the property at the same day.
Pablo countered that the subject property is a
portion of the entire property owned by his parents. He
is in possession the entire property since 1979 and he
built his house on the property and farmed the land.
Harayo cannot definitely claim which portion of the
entire property he was able to buy from the spouses
since the same was not clearly delineated. He
presented an Affidavit of Zoila Acaylar attesting that
she sold the subject property to him for consideration
and she did not give Pablo authority to either
administer or remain on the subject property.
MTCC rendered a Decision awarding to Danilo
the possession of the property, giving credence to
Danilo's claim that he took immediate possession after
the execution of the Deed of Sale. On appeal, RTC
affirmed the award of possession in favor of Harayo
and declared that the sale of the subject property by
spouses Acaylar vested ownership and possession of
said property in Harayo, thus Acaylar's acts of entering
of subjectproperty constitute forcible entry. CA denied
Acaylar's motion for reconsideration.
Issue: Whether or not there is forcible entry or
unlawful detainer.

RulingNo. We had long settled that the only question
that the courts must resolve in ejectment proceedings
is - who is entitled to the physical or material
possession of the property; and they should not
involve the question of ownership or of possession de
jure, which is to be settled in the proper court and in a
proper action. Hence the Deed of Sale conferring
ownership of the subject property upon Harayo is
irrelevant in the case presented. The Deed of Sale did
not automatically place him in physical possession of
the property.
In Affidavits of Zoila Acaylar, we find that
Pablo was in peaceful possession of the subject
property prior to its sale to Harayo. Even if Pablo was
not authorized by Zoila as administrator, his
possession was not opposed and was, thus, tolerated
by his parents.
In Arcal v. Court of Appeals, The rule is that
possession by tolerance is lawful, but such possession
becomes unlawful upon demand to vacate made by
the owner and the possessor by torelance refuses to
comply with such demand.
In this case, there is no showing that either
Zoila or Harayo made an express demand upon Pablo
to vacate the property. In the absence of an oral or
written demand, Pablo’s possession of the subject
property has yet to become unlawful. The absence of
demand to vacate precludes us from treating this case,
originally instituted as one for forcible entry, as one of
unlawful detainer, since demand to vacate is
jurisdictional in an action for unlawful detainer.
2. Ross-Rica v. Sps Ong, G.R. No. 132197, 16
August 2005, 467 SCRA 35
Facts:The spouses Ong are the original owners of 3
parcels of land which they occupy. They sold it to
Mandaue Prime Estate Realty, which then sold it to
Ross Rica Sales Center, Inc. The spouses Ong filed
an action to annul the sale and transfer of property to
Mandaue Prime Estate Realty and at present, the case
is still pending. In the meantime, an ejectment case
was filed against spouses Ong in the MTC, which ruled
against the latter. On appeal to the RTC, the judgment
was affirmed by a decision dated March 1, 1997. The
spouses Ong received a copy of the decision on April
28, 1997.
The spouses Ong first filed a Notice of Appeal
with the RTC (May 8, 1997) but on the very next day
filed a Motion for Reconsideration, which was denied
on June 23, 1997. The spouses Ong received a copy
of the order on July 9, 1997. On July 24, 1997
respondents filed with the CA a motion for an
additional 10 days to file their Petition for Review,
which they would eventually file on July 30, 1997.
The CA gave their petition for review due
course and reversed the decision of the RTC on the
finding that the action filed was not one for unlawful
detainer based on two grounds: that the allegations fail
to show that petitioners were deprived of possession
by force, intimidation, threat, strategy or stealth; and
that there is no contract, express or implied, between
the parties that would qualify the case as one of
unlawful detainer.
Issues: 1. Whether the complaint satisfies the
jurisdictional requirements for a case of unlawful
detainer properly cognizable by the MTC
Held:YES. Well-settled is the rule that what
determines the nature of an action as well as which
court has jurisdiction over it are the allegations of the
complaint and the character of the relief sought. In
Javelosa vs. Court of the Appeals, it was held that the
allegation in the complaint that there was unlawful
withholding of possession is sufficient to make out a
case for unlawful detainer. It is equally settled that in
an action for unlawful detainer, an allegation that the
defendant is unlawfully withholding possession from
the plaintiff is deemed sufficient, without necessarily
employing the terminology of the law. Hence, the
phrase “unlawful withholding” has been held to imply
possession on the part of defendant, which was legal
in the beginning, having no other source than a
contract, express or implied, and which later expired
as a right and is being withheld by defendant. In
Rosanna B. Barba vs. Court of Appeals, the Supreme
Court held that a simple allegation that the defendant
is unlawfully withholding possession from plaintiff is
sufficient. Based on this premise, the allegation in the
Complaint that: “despite demand to vacate, the
defendants have refused and still refuse to vacate said
lots, thus, unlawfully withholding possession of said
lots from plaintiffs and depriving plaintiffs of the use of
their lots;” is already sufficient to constitute an unlawful
detainer case.
Likewise, the case of Co Tiamco vs. Diaz
provides for a liberal approach in considering the
sufficiency of a complaint for unlawful detainer, thus:
“The principle underlying the brevity and
simplicity of pleadings in forcible entry and unlawful
detainer cases rests upon considerations of public
policy. Cases of forcible entry and detainer are
summary in nature, for they involve perturbation of
social order which must be restored as promptly as
possible and, accordingly, technicalities or details of
procedure should be carefully avoided.”
2.Whether the case should be considered as one for
accion reivindicatoria, and thus the jurisdiction would
lie with the RTC:
NO. The issue involved in accion reivindicatoria is
the recovery of ownership of real property.
This differs from accion publiciana where the
issue is the better right of possession or possession de
jureand accion interdictal where the issue is material
possession or possession de facto. In an action for
unlawful detainer, the question of possession is
primordial, while the issue of ownership is generally
unessential. Petitioners, in all their pleadings, only
sought to recover physical possession of the subject
property. The mere fact that they claim ownership over
the parcels of land as well did not deprive the MTC of
jurisdiction to try the ejectment case. Even if
respondents claim ownership as a defense to the
complaint for ejectment, the conclusion would be the
same, for mere assertion of ownership by the
defendant in an ejectment case will not oust the
municipal court of its summary jurisdiction. This Court
in Ganadin vs. Ramos stated that if what is prayed for
is ejectment or recovery of possession, it does not
matter if ownership is claimed by either party.
Therefore, the pending actions for Declaration of
Nullity of Deed of Sale and Transfer Certificates of
Title and quieting of title in Civil Case No. MAN-2356
will not abate the ejectment case.
In Drilon vs. Gaurana, this Court ruled that the
filing of an action for reconveyance of title over the
same property or for annulment of the deed of sale
over the land does not divest the MTC of its jurisdiction
to try the forcible entry or unlawful detainer case
before it, the rationale being that, while there may be
identity of parties and subject matter in the forcible
entry case and the suit for annulment of title and/or
reconveyance, the rights asserted and the relief
prayed for are not the same.
The long settled rule is that the issue of
ownership cannot be the subject of a collateral attack.
In Apostol vs. Court of Appeals, this Court had
the occasion to clarify this: “. . . Under Section 48 of
Presidential Decree No. 1529, a certificate of title shall
not be subject to collateral attack. It cannot be altered,
modified or cancelled, except in a direct proceeding for
that purpose in accordance with law. The issue of the
validity of the title of the respondents can only be
assailed in an action expressly instituted for that
purpose. Whether or not the petitioners have the right
to claim ownership over the property is beyond the
power of the court a quo to determine in an action for
unlawful detainer.”
3. Zacarias v. Anacay, G.R. No. 202354, 24
September 2014, 736 SCRA 508
Facts: The present controversy stemmed from a
complaint for Ejectment with Damages/Unlawful
Detainer filed on December 24, 2008 by petitioner
Amada Zacarias thru her son and attorney-in-fact,
Cesar C. Zacarias, against the above-named
respondents, Victoria Anacay and members of her
household. Said respondents are the occupants of a
parcel of land with an area of seven hundred sixty-nine
(769) square meters, situated at Barangay Lalaan 1st,
Silang, Cavite and covered by Tax Declaration No. 18-
026-01182 in the name of petitioner and issuedby
Municipal Assessor Reynaldo L. Bayot on August 31,
2007.
The parties were ordered to proceed to the
Philippine Mediation Center pursuant to Section 2(a),
Rule 18 of the 1997 Rules of Civil Procedure, as
amended. Mediation was unsuccessful and thus the
case was returned to the court.
The MCTC held that the allegations of the
complaint failed to state the essential elements of an
action for unlawful detainer as the claim that petitioner
had permitted or tolerated respondents’ occupation of
the subject property was unsubstantiated. It noted that
the averments in the demand letter sent by petitioner’s
counsel that respondents entered the property through
stealth and strategy, and in petitioner’s own
"Sinumpaang Salaysay", are more consistent withan
action for forcible entry which should have been filed
within one year from the discovery of the alleged entry.
Since petitioner was deprived of the physical
possession of her property through illegal means and
the complaint was filed after the lapse of one year from
her discovery thereof, the MCTC ruled that it has no
jurisdiction over the case.
On appeal to the RTC, petitioner argued that
unlawful detainer was the proper remedy considering
that she merely tolerated respondents’ stay in the
premises after demand to vacate was made upon
them, and they had in fact entered into an agreement
and she was only forced to take legal action when
respondents reneged on their promise to vacate the
property after the lapse of the period agreed upon.
In reversing the MCTC, the RTC pointed out
that in her complaint, petitioner did not state that
respondents entered her property through stealth and
strategy but that petitioner was in lawful possession
and acceded to the request of respondents to stay in
the premises until May 2008 but respondents’ reneged
on their promise to vacate the property by that time. It
held that the suit is one for unlawful detainer because
the respondents unlawfully withheld the property from
petitioner after she allowed them to stay there for one
year.
The MCTC and CA both ruled that the
allegations in petitioner’s complaint make out a case
for forcible entry but not for unlawful detainer.
ISSUE: Whether the MTCT and CA was correct?
Held: In Cabrera v. Getaruela, the Court held that a
complaint sufficiently alleges a cause of action for
unlawful detainer if it recites the following:
(1) initially, possession of property by the
defendant was by contract with or by toleranceof the
plaintiff;
(2) eventually, such possession became illegal
upon notice by plaintiff to defendant of the termination
ofthe latter’s right of possession;
(3) thereafter, the defendant remained in
possession of the property and deprived the plaintiff of
the enjoyment thereof; and
(4) within one year from the last demand on
defendant to vacate the property, the plaintiff instituted
the complaint for ejectment.16
In this case, the Complaint alleged the
following: 3. Plaintiff is the owner of that parcel of land
situated at Barangay Lalaan 1st, Silang, Cavite with an
area of SEVEN HUNDRED SIXTY NINE (769)
SQUARE METERS, and covered by Tax Declaration
No. 18-026-01182 issued by the Municipal Assessor of
Silang, Cavite. Copy of said tax declaration is hereto
attached as Annex "B"; 4. Plaintiff was in lawful
possession and control over the subject property. She
had it planted to Bananas and other fruit bearing trees.
However, sometime in May, 2007, she discovered that
the defendants have entered the subject property and
occupied the same; 5. Consequently, Plaintiff
demanded that they leave the premises. The
defendants requested for time toleave and she
acceded to said request. The defendants committed to
vacate the subject property by the end of May, 2008;
6. Inspite of several repeateddemands, defendants
unjustifiably refused to vacate the subject premises
prompting the Plaintiff to seek the assistance of a
lawyer who wrote them a FORMAL and FINAL
DEMAND to vacate the premises and to pay
reasonable compensation for their illegal use and
occupancy of the subject property. A copy of the
DEMAND LETTER is hereto attached as Annex "C"; 7.
Plaintiff also referred this matter to the Lupon
Tagapamayapa of Barangay Lalaan 1st for possible
conciliation but to no avail as the defendants still
refused to vacate the subject property. Thus, the said
Barangay issued a CERTIFICATION TOFILE ACTION,
as evidenced by a copy thereto attached as Annex "D";
The above complaint failed to allegea cause of
action for unlawful detainer as it does not describe
possession by the respondents being initially legal or
tolerated by the petitioner and which became illegal
upon termination by the petitioner of suchlawful
possession. Petitioner’s insistence that she actually
tolerated respondents’ continued occupation after her
discovery of their entry into the subject premises is
incorrect. As she had averred, she discovered
respondents’occupation in May 2007. Suchpossession
could not have been legal from the start as it was
without her knowledge or consent, much less was it
based on any contract, express or implied. We stress
that the possession ofthe defendant in unlawful
detainer is originally legal but became illegal due to the
expiration or termination of the right to possess.
In Valdez v. Court of Appeals, the Court ruled
that where the complaint did not satisfy the
jurisdictional requirement of a valid cause for unlawful
detainer, the municipal trial court had no jurisdiction
over the case. Thus:
To justify an action for unlawful detainer, it is
essential that the plaintiff’s supposed acts of tolerance
must have been present right from the start of the
possession which is later sought to be recovered.
Otherwise, if the possession was unlawful from the
start, an action for unlawful detainer would be an
improper remedy. As explained in Sarona v. Villegas:
But even where possession preceding the suit
is by tolerance of the owner, still, distinction should be
made.
If right at the incipiencydefendant’s possession
was with plaintiff’s tolerance, we do not doubt that the
latter may require him to vacate the premises and sue
before the inferior court under Section 1 of Rule 70,
within one year from the date of the demand to vacate.
In the instant case, the allegations in the
complaint do not contain any averment of fact that
would substantiate petitioners’ claim that they
permitted or tolerated the occupation of the property by
respondents. The complaint contains only bare
allegations that "respondents without any color of title
whatsoever occupies the land in question by building
their house in the said land thereby depriving
petitioners the possession thereof." Nothing has
been said on how respondents’ entry was effected or
how and when dispossession started. Admittedly, no
express contract existed between the parties. This
failure of petitioners to allege the key jurisdictional
facts constitutive of unlawful detainer is fatal. Since the
complaint did not satisfy the jurisdictional requirement
of a valid cause for unlawful detainer, the municipal
trial court had no jurisdiction over the case.It is in this
light that this Court finds that the Court of Appeals
correctly found that the municipal trial court had no
jurisdiction over the complaint.
The complaint in this case is similarly defective
as it failed to allege how and when entry was effected.
The bare allegation of petitioner that "sometime in
May, 2007, she discovered that the defendants have
enterep the subject property and occupied the same",
as correctly found by the MCTC and CA, would show
that respondents entered the land and built their
houses thereon clandestinely and without petitioner's
consent, which facts are constitutive of forcible entry,
not unlawful detainer. Consequently, the MCTC has no
jurisdiction over the case and the RTC clearly erred in
reversing the lower court's ruling and granting reliefs
prayed for by the petitioner.
Lastly, petitioner's argument that the CA
gravely erred in nullifying a final and executory
judgment of the RTC deserves scant consideration.
It is well-settled that a court's jurisdiction may
be raised at any stage of the proceedings, even on
appeal. The reason is that jurisdiction is conferred by
law, and lack of it affects the very authority of the court
to take cognizance of and to render judgment on the
action.20 Indeed, a void judgment for want of
jurisdiction is no judgment at all. It cannot be the
source of any right nor the creator of any obligation. All
acts performed pursuant to it and all claims emanating
from it have no legal effect. Hence, it can never
become final and any writ of execution based on it is
void.
4. Roman Catholic Archbishop of Caceres v. Heirs
of Abella, G.R. No. 143510, 23 November 2005, 476
SCRA 1
Facts: The property in dispute is a parcel of land with
an area of one hectare located beside the Peñafrancia
Basilica in Naga City.It is covered by Tax Declaration
No. 004.1152 in the name of herein respondents, the
heirs of Don Manuel I. Abella. According to herein
petitioner Roman Catholic Archbishop of Caceres
(petitioner) said parcel of land had been donated to
him by respondents sometime in 1981, in exchange for
masses to be offered once a month in perpetuity for
the eternal repose of the soul of Don Manuel I. Abella.
Respondents, on the other hand, vehemently deny
such allegation and counter that petitioner encroached
and fenced off the subject parcel of land without their
consent.
In the action for forcible entry instituted by the
Heirs of Manuel Abella (ABELLA, for short) against the
Roman Catholic Archbishop of Nueva Caceres
(ARCHBISHOP, for short) before the Municipal Trial
Court of Naga City.
The complaint is ordered dismissed for lack of
merit and the petition for preliminary mandatory
injunction is denied for being already moot and
academic.
The RTC affirmed the court’s decision. Abella
appealed its decision to the CA. The Court of Appeals
affirmed the decision of this Court (Branch 22) by
denying Abella’s petition for review.
ABELLA filed another case against the
ARCHBISHOP, for "Quieting of Title" involving the
same property subject matter of MTC Civil Case No.
8479 (Forcible Entry). The Court (Branch 24) rendered
judgment in Civil Case No. 89-1802 in favor of
ABELLA.
The Decision in Civil Case No. 89-1802 was
appealed by the ARCHBISHOP to the Court of
Appeals and was affirmed.
The ARCHBISHOP appealed the Decision of
the Court of Appeals to the Supreme Court. The
appeal was dismissed in a minute resolution holding
that there was "no reversible error committed by the
appellate court."
The ARCHBISHOP moved to execute the
Decision in the Forcible Entry case, but the respondent
MTC denied the motion for execution. Upon denial by
the MTC of petitioner’s motion for execution, he filed a
petition for certiorari and mandamus.
Herein petitioner again elevated the case
straight to CA via a petition for review on certiorari.
The CA held that the decision for Forcible Entry has
become final and executory earlier than in Civil Case
for Quieting of Title. The finality of the decision in the
quieting of title, declaring the respondents as the true
owner of the subject property is a supervening event
that renders the judgment in the forcible entry,
awarding possession to petitioner, notwithstanding its
finality, unenforceable by execution. Petitioner moved
for reconsideration of the Decision but, a Resolution
was issued denying the same.
Issue:Whether or not the final and executory judgment
in the case for quieting of title wherein respondents
were adjudged to be the owners of the subject
property is a supervening event that justifies the
suspension or non-enforcement of the final judgment
in the previous case for forcible entry.
Ruling:The Court finds the petition unmeritorious.
The theory advanced by petitioner from the
very beginning is that he is entitled to possession of
the disputed property as the owner thereof because
the property was transferred to him by virtue of an
onerous donation made by respondents. Thus,
petitioner’s alleged right of possession is premised on
his claim of ownership. He cannot change his theory
when the case is on review, by presenting another
theory that is inconsistent with his allegations during
the proceedings below. Petitioner cannot contradict
himself by saying first that respondents had agreed to
transfer to him the ownership over the property, only to
say later that what respondents granted to him was the
right to possess the property. Petitioner is bound by
the statements he made while the case was being
heard in the lower courts.
The rule is well-settled that points of law,
theories, issues and arguments not adequately
brought to the attention of the trial court need not be,
and ordinarily will not be considered by a reviewing
court as they cannot be raised for the first time on
appeal because this would be offensive to the basic
rules of fair play, justice and due process.
Disquisition on the issue of ownership in
ejectment cases, as in the case at bar, is only
provisional to determine who between the parties has
the better right of possession. It is, therefore, not
conclusive as to the issue of ownership, which is the
subject matter of a separate case of annulment of title
filed by respondent.
One of the exceptions to the principle of
immutability of final judgments is the existence of
supervening events. Supervening events refer to facts
which transpire after judgment has become final and
executory or to new circumstances which
developed after the judgment has acquired finality,
including matters which the parties were not aware of
prior to or during the trial as they were not yet in
existence at that time.
In the case at bar, the new circumstance which
developed after the finality of the judgment in the
forcible entry is the fact that the decision in the case
for quieting of title had also attained finality and
conclusively resolved the issue of ownership over the
subject land, and the concomitant right of possession
thereof. Verily, to grant execution of the judgment in
the forcible entry case would work injustice on
respondents who had been conclusively declared the
owners and rightful possessors of the disputed land.
5. Sunflower Neighborhood Association v. Court of
Appeals, G.R. No. 136274, 3 September 2003, 410
SCRA 318
Facts:Private respondent Elisa Maglaqui-Caparas, in
her capacity as executrix of the testate estate of
Macaria Maglaqui, filed on March 16, 1993 a complaint
for unlawful detainer (Civil Case No. 8550) against
Alfredo Mogar and 46 other personswho were
occupying several parcels of land (Lots 1-A, B, C, E, F
and G) in Yellow Ville, United Paraaque Subdivision
IV, Metro Manila. These parcels of land are covered by
individual transfer certificates of titleregistered in the
name of Macaria Maglaqui, private respondents’
mother.
The MeTC of Paraaque City, Branch 78,
eventually decided in favor of private respondent. On
appeal, the decision of the MeTC was affirmed by the
Regional Trial Court (RTC) of Makati City, Branch 66.
Mogar et al. elevated the case to the Court of Appeals
but their petition was dismissed by the appellate court
on December 12, 1994. After the dismissal became
final, a writ of demolition was issued by the MeTC of
Paraaque City, Branch 78. The writ, however, was not
immediately implemented because the case was
transferred to Branch 77 of the same court. On
February 6, 1997, Mogar et al. filed a petition with the
RTC of Paraaque City, Branch 257, presided over by
Judge Rolando G. How to enjoin the implementation of
the writ of demolition. However, this petition was
denied and subsequently, an alias writ of demolition
was issued by Judge Vivencio G. Lirio of MeTC
Branch 77, the court of origin.
The alias writ of demolition was, again, not
executed, this time due to the ex parte issuance of a
writ of preliminary injunction by Judge Amelita
Tolentino, in connection with the expropriation case
(Civil Case No. 96-0253) filed by the Municipality of
Paraaque against the Testate Estate of Macaria
Maglaqui.
Meanwhile, another group of persons
occupying portions of the parcels of land (Lots I-F and
I-G) subject of the unlawful detainer case organized
themselves into the Sunflower Neighborhood
Association (Sunflower), the petitioner herein. On
November 18, 1996, Sunflower, represented by one
Floro Aragan, filed a complaint for
prohibition/injunction with preliminary injunction against
private respondent also with the RTC of Parañaque
City, Branch 257. Sunflower argued that its members
should be excluded from the demolition order as they
were not parties to the original unlawful detainer case.
To include their houses in the demolition would be to
deprive them of due process. This time Judge How
granted the injunction and ordered the exclusion of the
houses belonging to petitioner from demolition.
Thus, private respondent filed a petition for
certiorari, prohibition and mandamus with the Court of
Appeals (CA GR SP No. 46861) assailing both the
injunction orders issued by Judge Tolentino in the
expropriation case and by Judge How in the prohibition
case.
The Court of Appeals ruled in favor of private
respondent holding that, as the judgment in the
unlawful detainer case had already become final, the
execution could not be enjoined. Consequently, the
MeTC of Paraaque City, Branch 77 issued another
alias writ of demolition on September 14, 1998.
In order to stay the execution of the writ of
demolition, Sunflower filed on January 7, 1999 an
urgent motion in this Court for the issuance of a status
quo order. This we granted in a resolution dated
January 20, 1999. Prior to the issuance of our
resolution, however, the writ of demolition was
implemented on January 14, 1999. Petitioner thus filed
a motion to allow its members to return to the
premises, which we granted in another resolution
dated April 28, 1999. Thereafter, we required both
parties to submit their memoranda.
Sometime in November 1998, the group of
Mogar et al. filed in this Court a petition for review of
the decision of the Court of Appeals in CA GR SP No.
46861. However, we dismissed the same on January
18, 1999 for failure of said petitioners to comply with
certain procedural requirements, including their failure
to submit a certification of non-forum shopping.
For its part, petitioner Sunflower likewise
assailed the same decision of the Court of Appeals in
this petition for review on certiorari under Rule 45 of
the Revised Rules of Court.
Issue:Whether petitioners’ members, who were not
parties to the unlawful detainer case, may be ejected
from the land subject of this case.
Held:YES. It is well-settled that, although an ejectment
suit is an action in personam wherein the judgment is
binding only upon the parties properly impleaded and
given an opportunity to be heard, the judgment
becomes binding on anyone who has not been
impleaded if he or she is: (a) a trespasser, squatter or
agent of the defendant fraudulently occupying the
property to frustrate the judgment; (b) a guest or
occupant of the premises with the permission of the
defendant; (c) a transferee pendente lite; (d) a
sublessee; (e) a co-lessee or (f) a member of the
family, relative or privy of the defendant.
In the case at bar, the records show that
petitioners members are trespassers or squatters who
do not have any right to occupy the property of
respondent. Petitioner does not dispute the ownership
of the parcels of land in question. In fact, it even
admitted that the subject property is owned by Macaria
Maglaqui, mother of private respondent.Petitioner
failed to establish any right which would entitle its
members to occupy the land in any capacity, whether
as lessees, tenants and the like. Petitioners only
defense against the eviction and demolition orders is
their supposed non-inclusion in the original detainer
case. This defense, however, has no legal support
since its members are trespassers or squatters who
are bound by the judgment.
Petitioners’ argument that the parcels of land
occupied by its members (Lots I-F and I-G) were not
included in the original ejectment complaint has no
basis. The complaint private respondent filed with the
MeTC of Paraaque City, Branch 78, clearly included
Lots I-F and I-G as part of the subject matter under
litigation in the unlawful detainer case.Thus,
petitioners’ members, together with all the parties in
the unlawful detainer case, must vacate the disputed
land.
The Court commiserates with respondent,
already in her twilight years, who has been unlawfully
deprived of her land for a good number of years. Thus,
we exhort the court of origin to execute this decision
with reasonable dispatch, consistent with the
requirements of Section 28 of RA 7279 and EO 152,
on eviction and demolition.
WHEREFORE, the petition is hereby DENIED and the
decision of the Court of Appeals in CA-GR SP No.
46861 is AFFIRMED.
Rule 71 - Contempt
1. Inonog v. Ibay, A.M. No. RTJ-09-2175, 28 July
2009, 594 SCRA 168
Facts:This administrative complaint came about when
Judge Francisco B. Ibay cited complainant in contempt
of court simply because the latter parked his vehicle at
the parking space served for him. In the exercise of his
contempt power, not only did respondent deny the
complainant his right to be heard but also convicted
him in contempt of court based on a very loose and
flimsy reason.
Respondent judge initiated the proceeding for
indirect contempt by issuing an order dated March 18,
2005 in Criminal Case Nos. 02-1320, 02-3046, 02-
3168-69, and 03-392-393, entitled People v. Glenn
Fernandez, et al., directing the complainant to show
cause why he should not be punished for contempt.
The said order read:
For intentionally parking car with plate no. WDH 804 at
the parking space reserved for the undersigned
Presiding Judge, thereby causing the delay in the
promulgation of the Decisions in the above-entitled
cases driver Butch Inonog, c/o Permit Division, this
City, is hereby ordered to appear before this Court at
10:30 A.M., March 18, 2005 and show cause why he
should not be cited for Contempt for delaying the
administration of justice.
Issue:Whether or not respondent judge acted with
grave abuse of discretion?

Ruling:The phrase “improper conduct tending, directly
or indirectly, to impede, obstruct, or degrade the
administration of justice” is so broad and general that it
encompasses wide spectrum of acts that could
constitute indirect contempt. However, the act of
complainant in parking his car in a slot allegedly
reserved for respondent judge does not fall under this
category. There was no showing that he acted with
malice and/or bad faith or that he was improperly
motivated to delay the proceedings of the court by
making use of the parking slot supposedly reserved for
respondent judge. We cannot also say that the said act
of complainant constitutes disrespect to the dignity of
the court. In sum, the incident is too flimsy and
inconsequential to be the basis of an indirect contempt
proceeding.
2. Regalado v. Go, G.R. No. 167988, 6 February
2007, 514 SCRA 616
Facts: The present controversy stemmed from the
complaint of illegal dismissal filed before the Labor
Arbiter by herein respondent Antonio S. Go against
Eurotech Hair Systems, Inc. (EHSI), and its President
Lutz Kunack and General Manager Jose E. Barin. The
Labor Arbiter ruled that respondent Go was illegally
dismissed from employment. The NLRC rendered a
Decision reversing the Labor Arbiter’s decision and
declaring that respondent Go’s separation from
employment was legal for it was attended by a just
cause and was validly effected by EHSI, Kunack and
Barin. Aggrieved, respondent Go elevated the adverse
decision to the Court of Appeals. The Court of Appeals
promulgated a Decision setting aside the ruling of the
NLRC and reinstating the decision of the Labor Arbiter
adjudging EHSI, Kunack and Barin guilty of illegal
dismissal.
 EHSI, Kunack and Barin were able to receive
a copy of the decision through registered mail on 17
July 2003 while respondent Go received his copy on
21 July 2003.
 On 16 July 2003, after the promulgation of the
Court of Appeals decision but prior to the receipt of the
parties of their respective copies, the parties decided
to settle the case and signed a Release Waiver and
Quitclaimwith the approval of the Labor Arbiter.
 In view of the amicable settlement, the Labor
Arbiter, on the same day, issued an Orderdismissing
the illegal dismissal case with prejudice. After the
receipt of a copy of the Court of Appeals decision,
respondent Go, through counsel, filed a Manifestation
with Omnibus Motion seeking to nullify the Release
Waiver and Quitclaim on the ground of fraud, mistake
or undue influence. Acting on the motions, the
appellate court issued a Resolutionannulling the Order
of the Labor Arbiter dated 16 July 2003 for lack of
jurisdiction.
Held: Indirect contempt proceedings may be initiated
only in two ways: (1) motu proprio by the court; or (2)
through a verified petition and upon compliance with
the requirements for initiatory pleadings. Procedural
requirements as outlined must be complied with.
 In the instant case, the indirect contempt
proceedings was initiated by respondent Go through a
Manifestation with Omnibus Motion.It was based on
the aforesaid Motion that the appellate court issued a
Resolution dated 19 November 2003, requiring
petitioner Atty. Regalado to show because why she
should not be cited for contempt.
 Clearly, respondent Go’s Manifestation with
Omnibus Motion was the catalyst which set everything
in motion and led to the eventual conviction of Atty.
Regalado. It was respondent Go who brought to the
attention of the appellate court the alleged misbehavior
committed by petitioner Atty. Regalado. Without such
positive act on the part of respondent Go, no indirect
contempt charge could have been initiated at all.
 We cannot, therefore, argue that the Court of
Appeals on its own initiated the indirect contempt
charge without contradicting the factual findings made
by the very same court which rendered the questioned
resolution.
 In the present case, the appellate court could
not have acquired knowledge of petitioner Atty.
Regalado’s misbehavior without respondent Go’s
Manifestation with Omnibus Motion reiterating the
alleged deceitful conduct committed by the former.
Thus, the instant case was not initiated by the court
motu proprio.
 The manner upon which the case at bar was
commenced is clearly in contravention with the
categorical mandate of the Rules (a verified petition
which has complied with the requirements of initiatory
pleadings must be filed). Respondent Go filed a
Manifestation with Omnibus Motion, which was
unverified and without any supporting particulars and
documents. Such procedural flaw notwithstanding, the
appellate court granted the motion and directed
petitioner Atty. Regalado to show cause why she
should not be cited for contempt. Upon petitioner Atty.
Regalado’s compliance with the appellate court’s
directive, the tribunal proceeded in adjudging her guilty
of indirect contempt and imposing a penalty of fine,
completely ignoring the procedural infirmities in the
commencement of the indirect contempt action.
 Evidently, the proceedings attendant to the
conviction of petitioner Atty. Regalado for indirect
contempt suffered a serious procedural defect to which
this Court cannot close its eyes without offending the
fundamental principles enunciated in the Rules that
we, ourselves, had promulgated.