Case Digests (Part II)

TRICIA CRUZDLSU LAW | JDCTRSPECIAL CIVIL ACTIONS | ATTY. CUSTODIO

Quo WarrantoMunicipality of San Narciso v Mendez 239 SCRA 11

On August 1959, Pres. Carlos P. Garcia issued EO 353 creating the Municipality of San Andres, Quezon, by segregating from the Municipality of San Narciso of Quezon, six (6) barrios along with their respective sitios. Said EO was issued upon request, addressed to the Pres and coursed through the Provincial Board of Quezon, of the municipal council of San Narciso, Quezon in its Resolution no. 8.

By virtue of another EO issued by Pres. Diosdado Macapagal, the municipal district of San Andres was later officially recognized to have gained the status of a fifth class municipality by operation of Sec. 2 of RA 1515.

Petitioner Municipality filed a petition for quo warranto with the RTC against the officials of the Municipality of San Andres. It sought the declaration of nullity of EO 353 and prayed that respondent local officials of the Municipality of San Andres be permanently ordered to refrain from performing the duties and functions of their respective offices. It contended that EO 353, a presidential act, was a clear usurpation of the inherent powers of the legislature and in violation of the principle of separation of powers.

Respondents asked for the dismissal of the petition averring that since it was at the instance of petitioner municipality that the Municipality of San Andres was given life with the issuance of EO 353, petitioner Municipality should have been estopped from questioning the creation of the new municipality. They also averred that petitioner Municipality is not the property party to bring the action, that prerogative being reserved to the State acting through the SolGen.

Municipality of San Andres filed a new MTD alleging that the case had become moot and academic with the enactment of RA 7160/LocGov Code particularly Sec. 442 thereof.

Motion was opposed by petitioner Municipality contending that such provision of law was inapplicable OTH that the enactment referred to legally exisiting municipalities and not to those whose mode of creation had been void ab initio.

LC finally dismissed the petition for lack of cause of action on what it felt was a matter that belonged to the State. It also ruled that the alleged defects in the creation of municipal districts by the Pres were cured by the LocGov code.

Petitioner Municipality filed a petition “for review on certiorari”. It asserts that the existence of a municipality created by a null and void PD may be attacked either directly or even collaterally by anyone whose interests/rights are affected and that an unconstitutional act is not a law, creates no office and is inoperative.

ISSUE: W/N petitioner Municipality is entitled to a petition for quo warranto? NOT ANYMORE

SC: The special civil action of quo warranto is a prerogative writ by which the Gov’t can call upon any person to show by what warrant he holds a public office or exercises a public franchise. When the inquiry is focused on the legal existence of a body politic, the action is reserved to the State in a proceeding for quo warranto or any other credit proceeding. It must be brought in the name of the Rep of Phils and commenced by the SolGen or fiscal when directed by the Pres…. Such officers may, under certain circumstances, bring such an action “at the request and upon relation of another person” with the permission of the court. The RoC also allows an individual to commence an action for quo warranto in his own name but this initiative can be done when he claims to be “entitled to a public office or position usurped or unlawfully held or exercised by another.”

While the quo warranto proceedings filed below by petitioner municipality has so named only by the officials of the Municipality of San Andres as respondents, it is virtually, however, a denunciation of the authority of the Municipality or Municipal District of San Andres to exist and to act in that capacity.

Petitioners’ theory might perhaps be a point to consider had the case been seasonably brought. EO 353 creating the municipal district of San Andres was issued on 20 Aug 1959 but it was only after almost thirty years or on 05 June 1989, that the municipality of San Narciso finally decided to challenge the legality of the EO. The Municipal District, and later the Municipality, of San Andres, began and continued to exercise the powers and authority of a duly created LGU. In the same manner that the failure of a public officer to question his ouster or the right of another to hold a position within a one-year period can abrogate an action belatedly filed, so also, if not indeed with greatest imperativeness, must a quo warranto proceeding assailing the lawful authority of a political subdivision be timely raised. Public interest demands it.

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Tarrosa v Singson 232 S 553 A case for Prohibition was filed by Petitioner as “taxpayer”

questioning the appointment of respondent Gabriel Singson as Governor of the BSP for not having been confirmed by the Commission on Appointments (CA). The petition seeks to enjoin respondent Singson from the performance of his functions as such official until his appointment is confirmed by the CA and respondent Salvador M. Enriquez (Sec of DBM), from disbursing public funds in payment of the salaries and emoluments of resp Singson.

Resp Singson was appointed Gov of BSP by Pres Ramos on July 2, 1993, effective only July 6, 1993. Tarrosa argues that Singson’s appointment is null and void since it was not submitted for confirmation to the CA. The petition is anchored on Sec. 6 of RA 7653.

Respondents claim that Congress exceeded its legislative powers in requiring the confirmation of CA of the appointment of the Gov of BSP citing Sec. 16 of Art. 7 of the CONSTI. Respondents also aver that the BSP has its own budget and accordingly, its budgetary requirements are not subject to the provisions of the GAA.

ISSUE: W/N a petition for quo warranto lies against respondent? NO

SC: The instant petition is in the nature of a quo warranto proceeding as it seeks the ouster of respondent Singson and alleges that the latter is unlawfully holding or exercising the powers of Gov of BSP.

Such a special civil action can only be commenced by the SolGen or a “person claiming to be entitled to a public office or position unlawfully held or exercised by another”.

The action is improvidently brought by petitioner. To uphold the action would encourage every disgruntled citizen to resort to the courts, thereby causing incalculable mischief and hindrance to the efficient operation of the governmental machinery.

Lota v CA 2 S 715 Moises Sangalang alleged in his petition for quo warranto, that as a

duly appointed caretaker of the municipal cemetery of Taal, Batangas, he was unlawfully ousted from office. Respondents are Flaviano Lota, mayor of Taal, who allegedly ousted Moises from

office; Jose Sangalang, the new appointee for the position; and Aurelio Beron, in this capacity as municipal treasurer.

Respondent Lota contends that Moises was unlawfully occupying the position of cemetery caretaker and the latter having abandoned it after all, he appointed Jose in his place in the interest of the public.

After hearing, the CFI of Batangas declared plaintiff Moises Sangalang to be legally appointed cemetery porter of Taal, Batangas. Only Mayor Lota appealed from the decision.

CA declared that plaintiff is entitled to hold and continue in the office as cemetery caretaker.

Lota et al contended that the respondent court erred in holding that the present action is one of quo warranto and NOT mandamus (which should’ve been the proper remedy accdg to him); in not dismissing the action for failure of the plaintiff to join therein the Municipality of Taal, Batangas, as party defendant, and in declaring that Moises Sangalang is entitled to hold, and continue in the office of caretaker of the municipal cemetery of that municipality.

ISSUE: W/N a petition for quo warranto lies against respondent? YES

SC: The claim that the instant action is one of mandamus, not quo warranto is DEVOID of basis. While quo warranto and mandamus are often concurrent remedies, however, there exists a clear distinction between the two. Quo warranto is the remedy to try the right to an office or franchise and to oust the holder from its enjoyment, while mandamus only lies to enforce legal duties, not to try disputed titles; that where there is usurpation or intrusion into an office, quo warranto is the proper remedy, and that where the respondent without claiming any right to an office, excludes the petitioner therefrom, the remedy is mandamus, not quo warranto.

The instant action is clearly one of quo warranto although mandamus is also invoked as an ancillary remedy. The facts show that respondent Moises Sangalang “was holding the position of cemetery caretaker from 1951 until he was extended a new appointment on July 1, 1955 by Dr. Noche; that until then he had no resigned nor intended to abandon the office; that petitioner Lota appointed defendant Jose Sangalang in his stead and that Jose still claims to be the duly appointed caretaker. Moises, then alleged in his petition that he had the right to possession and enjoyment of said office to which he had been legally appointed, and asks that Jose be lawfully ousted.


Therefore, the action is one whose purpose is to try the right or title to a public office and oust the alleged unlawful holder from its enjoyment.

Failure to implead the Municipality is also untenable. According to jurisprudence, any person claiming to be entitled to a public office may bring an action of quo warranto, without the intervention of the SolGen or the Fiscal and that only the person who is in unlawful possession of the office, and all who claim to be entitled to that office, may be made parties in order to determine their respective rights thereto in the same action.

Calleja v Panday GR 168696 (Feb 28, 2006) Respondents filed a petition with the RTC of CamSur for quo

warranto with Damages and Prayer for Mandatory and Prohibitory Injunction, Damages and Issuance of TRO against petitioners.

Respondents alleged that since 1985 they had been members of the board of directors and officers of St. John Hospital, Inc., but sometime in May 2005, petitioners, who are also among the incorporators and stockholders of said corporation, forcibly usurped the powers which supposedly belonged to respondents.

RTC CamSur issued an Order transferring the case to the RTC in Naga City. According to RTC CamSur, since the verified petition showed petitioners (herein respondents) to be residents of Naga, then pursuant to Sec. 7, Rule 66 of the RoC, the action for quo warranto should be brought in the RTC exercising jurisdiction over the territorial area where the respondents or any of the respondents resides. However, exec judge of RTC refused to receive the case.

Petitioners raised affirmative defenses such as improper venue, lack of jurisdiction, and wrong remedy of quo warranto.

RTC denied MTD pursuant to the Interim Rules of Procedure for Intra-Corporate Controversies being a prohibited pleading. Case was remanded to the RTC Br 23, Naga city which under AM No. 00-11-03-SC has been designated as special court to try and decide intra-corporate controversies under RA 8799 or the SRC.

Petitioners no longer moved for reconsideration and instead immediately elevated the case to this Court via petition for review on certiorari under Rule 45.

Petitioners filed an Urgent Motion to Restore Status Quo Ante, alleging that respondent Jose Pierre Panday, with the aid of 14 armed men, assaulted the premises of St. John Hospital taking away the daily hospital collections.

ISSUE: W/N a petition for quo warranto lies against respondents?

SC: The Court notes that, indeed, petitioners chose the wrong remedy to assail the Order remanding the case to RTC Naga. It is hornbook principle that Rule 45 of the 1997 RoC governs appeals from judgments or final orders. The said Order is a denial of petitioners’ prayer in their Answer for the dismissal of respondents’ case against them which is considered an interlocutory order.

It should be noted that allegations in a complaint for quo warranto that certain persons usurped the offices, powers and functions of duly elected members of the board, trustees and/or officers make out a case for an intra-corporate controversy.

The present Rule 66 only applies to actions of quo warranto against persons who usurp a public office, position, or franchise; public officers who forfeit their office; and associations which act as corporations without being legally incorporated despite the passage of RA 8799. It is, therefore, The Interim Rules of Procedure Granting Intra-Corporate Controversies Under RA No. 8799 which applies to the petition for quo warranto filed by respondents before the trial court since what is being questioned is the authority of respondents to assume the office and act as the BoD and officers of St. John Hospital, Inc.

Garces v CA GR 114795 (July 17, 1996) Petitioner Lucita Garces was appointed Election Registrar of

Gutalac, Zamboanga Del Norte. She was to replace respondent Election Registrar Claudio Concepcion, who, in turn, was transferred to Liloy, Zamboanga. Such appointments were approved by the CSC and which were to take effect upon assumption of office.

However, it was found that Concepcion refused to transfer post as he did not request for it. Garces, OTOH, was directed by the Office of Asst. Director for Operations to assume the Gutalac post but she was not able to do so because of a Memorandum issued by respondent Provincial Election Supervisor Salvador Empeynado that prohibited her from assuming office in Gutalac as the same is not vacant. She was also directed by the same officer to defer her assumption of the Gutalac post.

Garces received a letter from the Acting Mngr of the Finance Dept. addressed to her as the ER of Gutalac which she interpreted to

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mean as superseding the deferment order. Meanwhile, since Concepcion continued occupying the Gutalac officer, the COMELEC En banc cancelled his apptment to Liloy.

Garces filed before the RTC a petition for mandamus with preliminary prohibitory and mandatory injunction and damages against Empeynado and Concepcion.

COMELEC En Banc through a Reso, resolved to recognize respondent Concepcion as the Election Registrar of Gutalac, and ordered that the appointments of Garces to Gutalac and of Concepcion to Liloy be cancelled.

Respondent Empeynado moved to dismiss the petition for mandamus alleging that the same was rendered moot and academic by the said COMELEC Resolution, and that the same is cognizable only by the COMELEC under Sec. 7, Art. IX-A of the 1987 Constitution. RTC dismissed petition for mandamus on two grounds: 1) that quo warranto is the proper remedy, and 2) that the “cases” or “matters” referred under the constitution pertain only to those involving the conduct of elections. Respondent CA affirmed RTC’s dismissal.

ISSUE/S: W/N petitioner’s action for mandamus proper? W/N this case is cognizable by the RTC or by the SC?

SC: (1) NO. Considering that Concepcion continuously occupies the

disputed position and exercises corresponding functions therefor, the proper remedy should have been quo warranto and not mandamus. Quo warranto tests the title to one’s office claimed by another and has as its object the ouster of the holder from its enjoyment, while mandamus avails to enforce clear legal duties and not to try disputed titles.

In this case, there was no vacancy in the Gutalac post and petitioner’s appointment to which she could case her claim was revoked making her claim uncertain.

(2) RTC. The controversy involves an appointive, not an elective, official. Hardly can this matter call for the certiorari jurisdiction of the SC. To rule otherwise would surely burden the Court with trivial administrative questions that are best ventilated before the RTC, a court which the law vest with the power to exercise original

jurisdiction over “all cases not within the exclusive jurisdiction over of any court, tribunal, person or body exercising judicial or quasi-judicial functions.”

Mendoza v Allas GR 131977 (Feb 4, 1999) Petitioner Mendoza joined the Bureau of Customs (BoC) in 1972.

He held the positions of Port Security Chief from March 1972 – August 1972, Deputy Commissioner of Customs from Aug 1972 – Sep 1975, Acting Commissioner from Sep 1975 - April 1977 and Customs Operations Chief I from Oct 1987 to Feb 1988.

On March 1 1988, he was appointed Customs Service Chief of the Customs Intelligence Investigation Service (CIIS). Such position was reclassified by the CS as Director III.

Petitioner was temporarily designated as Acting District Collector of CDO. In his place, resp Ray Allas was appointed as “Acting Dir III” of the CIIS. Despite petitioner’s new assignment as Acting District Collector, however, he continued to receive the salary and benefits of the position of Director III.

Petitioner received a letter from Deputy Customs Commissioner Cesar Dario informing him of his termination from BoC in view of Allas’ appointment as Dir III by President Ramos. Petitioner wrote the Commissioner demanding reinstatement with full backwages and without loss of seniority rights. No reply was made.

Petitioner filed a petition for quo warranto against Allas before the RTC. The case was tried and subsequently granted. It found the petitioner to be illegally terminated from office without due process, and in violation of security of tenure and that as he was deemed not to have vacated his post, the appointment of Allas is void ab initio.

Respondent Allas appealed to the CA. Allas was subsequently promoted by Ramos to the position of Deputy Commissioner of Customs for Assessment and operations. Petitioner then moved to dismiss the petition. Petitioner filed a Motion for Execution of its decision. CA denied the motion OTG that the contested position was now being occupied by Olores who was not a party tot he quo warranto petition. Petitioner filed a special civil action for certiorari and mandamus with the CA.

ISSUE: W/N the quo warranto judgment against Allas is binding against his successor Olores? NO


SC: Where the action is filed by a private person, he must prove that he is entitled to the controverted position, otherwise respondent has a right to the undisturbed possession of the office. If the court finds for the respondent, the judgment should simply state that the respondent is entitled to the office. If, however, the court finds for the petitioner and declares the respondent guilty of usurping, intruding into, or unlawfully holding or exercising the office, court may order: 1) ouster; 2) recovery of costs; 3) determination of rights.

The trial court found that respondent Allas usurped the position of Director III, CIID. Consequently, the court ordered Allas be ousted from the contested position and petitioner be reinstated in his stead. Although, petitioner did not specifically pray for back salaries, the court ordered the payment of full back wages. The decision of RTC became F&E and petitioner prays for its execution.

Ordinarily, a judgment against a public officer in regard to a public right binds his successor in office. This rule, however, is not applicable in quo warranto cases. A judgment in quo warranto does not bind the respondent’s successor in office, even though such successor may trace his title to the same source. It is never directed to an officer a such, but always against the person – to determine whether he is constitutionally or legally authorized to perform any act in, or exercise any function of the office to which he lays his claim.

In the case at bar, the petition for quo warranto was filed by petitioner solely against respondent Allas and not against Olores. The CA did not err in denying the execution of the trial court’s decision.

Expropriation

Republic v Gingoyan GR 166429 (December 19, 2005) This is an offshoot of Agan v. Piatco (2004) where the contracts

which the Gov’t had with PIATCO were voided for being contrary to law and public policy. The agreement had authorized PIATCO, to build a new international airport terminal (NAIA 3), as well as a franchise to operate and maintain the said terminal during the concession period of 25 yrs pursuant to a “Concession Agreement for the Build-Operate-and-Transfer Arrangement. The present case involves the matter of just compensation due the contractor for the terminal complex it built.

The holding of the SC at the 2004 Resolution states that since the structures comprising the NAIA IPT III facility are almost complete and that funds have been spent by PIATCO, for the Gov’t to take over the said facility, it has to compensate respondent PIATCO as builder of the said structures. The compensation must be just and in accordance with law and equity for the Gov’t cannot unjustly enrich itself at the expense of PIATCO and its investors.

After the promulgation of the rulings in Agan, the NAIA 3 facilities have remained in the possession of PIATCO, despite the avowed intent of the Government to put the airport terminal into immediate operation.

The Gov’t filed a Complaint for expropriation with the Pasay City RTC, together with an Application for Special Raffle. It sought upon the filing of the complaint the issuance of a writ of possession authorizing it to take immediate possession and control over the NAIA 3 facilities. It had also declared that it had deposited the amount of P3B in cash with the LBP representing the NAIA 3 terminal’s assessed value for taxation purposes.

The case was raffled to Br 117 presided by respondent Judge Gingoyon. On the same da that the Complaint was filed, RTC issued an order directing the issuance of a WoP to the Gov’t authorizing it to take or enter upon the possession of the NAIA 3 facilities.

However, the RTC issued another Order supplementing the previous order. The RTC noted that its earlier issuance of its writ of possession was pursuant to Section 2, Rule 67 of the 1997 Rules of Civil Procedure. However, it was observed that Republic Act No. 8974 (Rep. Act No. 8974), otherwise known as "An Act to Facilitate the Acquisition of Right-of-Way, Site or Location for

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National Government Infrastructure Projects and For Other Purposes" and its IRR had amended Rule 67 in many respects. Accordingly, on the basis of Sections 4 and 7 of RA No. 8974 and Section 10 of the IRR, the RTC made the ff. qualifications: (1) it directed the LBP to immediately release the amount of US$62,343,175.77 to PIATCO, an amount which the RTC characterized as that which the Government "specifically made available for the purpose of this expropriation;" and such amount to be deducted from the amount of just compensation due PIATCO as eventually determined by the RTC; (2) Gov’t was directed to submit to the RTC a Certificate of Availability of Funds signed by authorized officials to cover the payment of just compensation; (3) Gov’t was directed "to maintain, preserve and safeguard" the NAIA 3 facilities or "perform such as acts or activities in preparation for their direct operation" of the airport terminal, pending expropriation proceedings and full payment of just compensation. However, the Government was prohibited "from performing acts of ownership like awarding concessions or leasing any part of [NAIA 3] to other parties.

The very next day, the Government filed an Urgent Motion for Reconsideration. The RTC issued another Order, which appointed three (3) Commissioners to ascertain the amount of just compensation for the NAIA 3 Complex. The Government also filed a Motion for Inhibition of Hon. Gingoyon.

The RTC denied these motions through an Omnibus Order. Nonetheless, while the Omnibus Order affirmed the earlier dispositions in the 4 January 2005 Order, it excepted from affirmance "the superfluous part of the Order prohibiting the plaintiffs from awarding concessions or leasing any part of [NAIA 3] to other parties."

Thus, the present Petition for Certiorari and Prohibition under Rule 65 was filed. The petition prayed for the nullification of the RTC orders and for the inhibition of Hon. Gingoyon from taking further action on the expropriation case. A concurrent prayer for the issuance of a TRO and PI was granted by the SC in a Resolution.

ISSUE/S:(1) Whether Rule 67 of the Rules of Court or RA 8974 governs the

expropriation proceedings in this case? RA 8974(2) What is the Proper Amount/Just Compensation to be paid? (3) What is/are the right/rights of the Gov’t upon issuance of the WoP?

(4) Is the Appointment of Commissioners necessary to determine JC? NO

SC: (1) The pronouncement in the 2004 Resolution is especially significant to this case in two aspects, namely: (i) that PIATCO must receive payment of just compensation determined in accordance with law and equity; and (ii) that the government is barred from taking over NAIA 3 until such just compensation is paid. The parties cannot be allowed to evade the directives laid down by this Court through any mode of judicial action, such as the complaint for eminent domain.

The Government insists that Rule 67 of the Rules of Court governs the expropriation proceedings in this case to the exclusion of all other laws. On the other hand, PIATCO claims that it is Rep. Act No. 8974 which does apply.

RULE 67 RA 8974

The Gov’t is required only to make an initial deposit with an authorized gov’t depositary. The initial deposit must be equivalent to the assessed value of the property for purposes of taxation. Upon compliance with the requirements of Sec. 2, Rule 67, the plaintiff can enter the property concerned via WoP.

The Gov’t is required to make immediate payment to the property owner upon the filing of the complaint to be entitled to a writ of possession.

The relevant standard for initial compensation is equivalent to 100% of the market value of the property as stated in the tax declaration or the current relevant zonal valuation of the BIR, whichever is higher and the value of the improvements and/or structures using the replacement cost method.

In case the completion of a gov’t infrastructure proj is of utmost urgency and importance, and there is no existing valuation of the area concerned, the implementing agency shall immediately pay the owner of the property its proferred value taking into consideration the standards prescribed in Sec. 5 hereof.

Before the court can issue a WoP, the implementing agency shall present to a court a cert of availability of funds from the proper official.


RA No. 8974 is intended to cover expropriation proceedings intended for national government infrastructure projects. Section 2 of Rep. Act No. 8974 explains what are considered as "national government projects." As acknowledged in the 2003 Decision, the development of NAIA 3 was made pursuant to a build-operate-and-transfer arrangement pursuant to Republic

Act No. 6957, as amended, which pertains to infrastructure or development

projects normally financed by the public sector but which are now wholly or partly implemented by the private sector. Under the build-operate-and-transfer scheme, it is the project proponent which undertakes the construction, including the financing, of a given infrastructure facility.

There can be no doubt that PIATCO has ownership rights over the facilities which it had financed and constructed. The 2004 Resolution squarely recognized that right when it mandated the payment of just compensation to PIATCO prior to the takeover by the Government of NAIA 3. The fact that the Government resorted to eminent domain proceedings in the first place is a concession on its part of PIATCO’s ownership. Indeed, if no such right is recognized, then there should be no impediment for the Government to seize control of NAIA 3 through ordinary ejectment proceedings.

The law classifies the NAIA 3 facilities as real properties just like the soil to which they are adhered. Any sub-classifications of real property and divergent treatment based thereupon for purposes of expropriation must be based on substantial distinctions, otherwise the equal protection clause of the Constitution is violated.

Moreover, if Section 2 of Rule 67 were to apply, PIATCO would be enjoined from receiving a single centavo as just compensation before the Government takes over the NAIA 3 facility by virtue of a writ of possession. Such an injunction squarely contradicts the letter and intent of the 2004 Resolution. Thus, at the very least, Rule 67 cannot apply in this case without violating the 2004 Resolution. Even assuming that Rep. Act No. 8974 does not govern in this case, it does not necessarily follow that Rule 67 should then apply. After all, adherence to the letter of Section 2, Rule 67 would in turn violate the Court’s requirement in the 2004 Resolution that there must first be payment of just compensation to PIATCO before the Government may take over the property.

(2) As correctly observed by the OSG, there can be no "BIR zonal valuations" on the NAIA 3 facility, as provided in Rep. Act No. 8974, since

zonal valuations are only for parcels of land, not for airport terminals. However, the Court does not see this an impediment to the application of RA 8974.

It must be clarified that PIATCO cannot be reimbursed or justly compensated for the value of the parcel of land on which NAIA 3 stands. PIATCO is not the owner of the land on which the NAIA 3 facility is constructed, and it should not be entitled to just compensation that is inclusive of the value of the land itself. It would be highly disingenuous to compensate PIATCO for the value of land it does not own. Its entitlement to just compensation should be limited to the value of the improvements and/or structures themselves.

Under RA No. 8974, the Government is required to "immediately pay" the owner of the property the amount equivalent to the sum of 100% of the value of the property based on the current relevant zonal valuation of the [BIR]; and (2) the value of the improvements and/or structures as determined under Section 7. As stated above, the BIR zonal valuation cannot apply in this case, thus the amount subject to immediate payment should be limited to "the value of the improvements and/or structures as determined under Section 7” which refers to the "implementing rules and regulations for the equitable valuation of the improvements and/or structures on the land." Under the present IRR, the valuation of the improvements/structures are to

be based using "the replacement cost method." However, the replacement

cost is only one of the factors to be considered in determining the just compensation.

In addition to Rep. Act No. 8974, the 2004 Resolution in Agan also mandated that the payment of just compensation should be in accordance with equity as well. Thus, in ascertaining the ultimate amount of just compensation, the duty of the trial court is to ensure that such amount conforms not only to the law, such as Rep. Act No. 8974, but to principles of equity as well.

Notably, RA No. 8974 permits an expedited means by which the Government can immediately take possession of the property without having to await precise determination of the valuation. Section 4(c) of the law states that, "in case the completion of a government infrastructure project is of utmost urgency and importance, and there is no existing valuation of the area concerned, the implementing agency shall immediately pay the owner of the property its proferred value, taking into consideration the standards

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prescribed in Section 5 [of the law]."

In the initial determination of the proffered value, the Government is not strictly required to adhere to any predetermined standards, although its proffered value may later be subjected to judicial review using the standards enumerated under Section 5 of Rep. Act No. 8974. The SC agrees that the P3B should be considered as the correct proferred value, however, it still cannot deem the Gov’t as having faithfully complied with the law for the law plainly requires direct payment to the owner and not a mere deposit with the authorized gov’t depositary. Without such direct payment, no writ of possession may be obtained.

The Court has the duty to implement RA No. 8974 and to direct compliance with the requirement of immediate payment in this case. Accordingly, the Writ of Possession dated 21 December 2004 should be held in abeyance, pending proof of actual payment by the Government to PIATCO of the proffered value of the NAIA 3 facilities, which totals P3,002,125,000.00.

(3) Once the Government pays PIATCO the amount of the proffered value of P3 Billion, it will be entitled to the Writ of Possession.

Sec. 4 of RA No. 8974 provides the appropriate answer for the standard that governs the extent of the acts the Government may be authorized to perform upon the issuance of the writ of possession. It states that "the court shall immediately issue to the implementing agency an order to take possession of the property and start the implementation of the project." Accordingly, once the Writ of Possession is effective, the Government itself is authorized to perform the acts that are essential to the operation of the NAIA 3 as an international airport terminal upon the effectivity of the Writ of Possession. These would include the repair, reconditioning and improvement of the complex, maintenance of the existing facilities and equipment, installation of new facilities and equipment, provision of services and facilities pertaining to the facilitation of air traffic and transport, and other services that are integral to a modern-day international airport.

As regards the title to the property, the recognized rule is that title to the property expropriated shall pass from the owner to the expropriator only upon full payment of the just compensation. Jurisprudence on this settled principle is consistent both here and in other democratic jurisdictions. The Republic’s acquisition of ownership is conditioned upon the full payment of just compensation within a reasonable time.

Expropriation is not completed until payment to the property owner of just compensation. The proffered value stands as merely a provisional determination of the amount of just compensation, the payment of which is sufficient to transfer possession of the property to the Government. However, to effectuate the transfer of ownership, it is necessary for the Government to pay the property owner the final just compensation.

RA No. 8974 mandates a speedy method by which the final determination of just compensation may be had. Section 4 provides that in the event that the owner of the property contests the implementing agency’s proffered value, the court shall determine the just compensation to be paid the owner within sixty (60) days from the date of filing of the expropriation case.

(4) It must be noted that RA No. 8974 is silent on the appointment of commissioners tasked with the ascertainment of just compensation. This protocol though is sanctioned under Rule 67. The Court rules that the appointment of commissioners under Rule 67 may be resorted to, even in expropriation proceedings under Rep. Act No. 8974, since the application of the provisions of Rule 67 in that regard do not conflict with the statute. Nothing in Rule 67 or Rep. Act No. 8974 requires that the RTC consult with the parties in the expropriation case on who should be appointed as commissioners. Neither does the Court feel that such a requirement should be imposed in this case.

National Power Corp v Manubay Agro-Industrial GR 150936 NPC, a GOCC created for the purpose of undertaking the

development and generation of hydroelectric power, commenced its 350 KV Leyte-Luzon HVDC Power Transmission Project. Such project aims to transmit electricity coming Leyte to Luzon and various load centers in its vision to interconnect the entire country into single power grid.

One of these lands, where only a portion will be traversed by the transmission lines, is owned by respondent MANUBAY.

NPC filed a complaint for expropriation before the RTC of Naga against in order to acquire an easement of right of way over the land which the latter owns.

Respondent filed its answer. RTC issued an order authorizing the immediate issuance of a WoP and directing Ex-Officio Provincial Sheriff to immediately place NPC in possession of the subject land.


Subsequently, RTC directed the issuance of a writ of condemnation in favor of NPC. The court also appointed three (3) commissioners composed of 1 rep of NPC, 1 rep of MANUBAY and 1 rep of the court.

Accordingly, the commissioners submitted their individual appraisal/valuation reports. Taking into consideration the condition, surroundings and the potentials of respondent’s expropriated property, RTC approved Chairperson Teoxon’s (NPC) recommendation in the amount of P550/sqm. The trial court opined that the installation thereon of the 350 KV Leyte-Luzon HVDC Power Transmission Project would impose a limitation on the use of the land for an indefinite period of time, thereby justifying the payment of the full value of the property.

RTC held that it was not bound by the provision cited by petitioner – Sec.3-A of RA 6395 which prescribes that the just compensation for the acquired easement of a right of way over an expropriated property an easement fee in an amount not exceeding 10 percent of the market value of such property. The trial court relied on the earlier pronouncements of this Court that the determination of just compensation in eminent domain cases is a judicial function. Thus, valuations made by the executive branch or the legislature are at best initial or preliminary only.

CA affirmed the RTC’s ruling. It observed that, given their nature, high-powered electric lines traversing respondent’s property would necessarily diminish -- if not damage entirely -- the value and the use of the affected property; as well as endanger lives and limbs because of the high-tension current.

ISSUE: W/N an easement of right of way is considered “taking” of property so as to warrant expropriation proceedings over the subject property? YES

SC: The acquisition of such an easement falls within the purview of the power of eminent domain.

True, an easement of a right of way transmits no rights except the easement itself, and respondent retains full ownership of the property. The acquisition of such easement is, nevertheless, not gratis. As correctly observed by the CA, considering the nature and the effect of the installation power lines, the limitations on the use of the land for an indefinite period would deprive respondent of normal use of the property. For this reason, the latter is entitled to payment of a just compensation, which must be neither more nor

less than the monetary equivalent of the land.

The parcels of land sought to be expropriated are undeniably undeveloped, raw agricultural land. But a dominant portion thereof has been reclassified by the Sangguniang Panlungsod ng Naga as residential.

The chairperson of the Board of Commissioners, in adopting the recommendation of Commissioner Bulaos, made a careful study of the property. Factors considered in arriving at a reasonable estimate of just compensation for respondent were the location; the most profitable likely use of the remaining area; and the size, shape, accessibility as well as listings of other properties within the vicinity. Averments pertaining to these factors were supported by documentary evidence.

Inasmuch as the determination of just compensation in eminent domain

cases is a judicial function,

and the trial court apparently did not act capriciously or arbitrarily in setting the price at P550 per square meter -- an award affirmed by the CA -- we see no reason to disturb the factual findings as to the valuation of the property. Both the Report of Commissioner Bulao and the commissioners’ majority Report were based on uncontroverted facts supported by documentary evidence and confirmed by their ocular inspection of the property.

SC DOCTRINES: Just compensation is defined as the full and fair equivalent of the

property taken from its owner by the expropriator. The measure is not the taker’s gain, but the owner’s loss.

In eminent domain or expropriation proceedings, the just compensation to which the owner of a condemned property is entitled is generally the market value. Market value is "that sum of money which a person desirous but not compelled to buy, and an owner willing but not compelled to sell, would agree on as a price to be given and received therefor."

Republic v CA and Heirs of Cris Santos GR 146587 (July 2, 2002) Petitioner instituted expropriation proceedings before the RTC

covering a total of 544,980 sqm of contiguous land situated along MacArthur Highway, Malolos, Bulacan, to be utilized for the continued broadcast operation and use of radio transmitter facilities for the “Voice of the Philippines” project.

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Petitioner made a deposit of P517,558, the sum provisionally fixed as being the reasonable value of the property.

More than nine (9) years after the institution of the expropriation proceedings (1979), the trial court issued an order condemning the properties of defendants located at Bulacan. The court also ordered plaintiff to pay the defendants the just compensation for said property which is at the FMV of the land condemned, computed at the rate of 6%/sqm with legal interest.

It would appear that the national government failed to pay to herein respondents the compensation pursuant to the foregoing decision, such that a little over five years later, respondents filed a manifestation with a motion seeking payment for the expropriated property.

On 07 June 1984, the Bulacan RTC, after ascertaining that the heirs remained unpaid in the sum of P1,058,655.05, issued a writ of execution served on the plaintiff, through the Office of the Solicitor General, for the implementation thereof. When the order was not complied with, respondents again filed a motion urging the trial court to direct the provincial treasurer of Bulacan to release to them the amount of P72,683.55, a portion of the sum deposited by petitioner at the inception of the expropriation proceedings in 1969, corresponding to their share of the deposit. The trial court granted the motion.

Pres. Estrada issued Proclamation no. 22 transferring 20 hectares of the expropriated property to the Bulacan State University for the expansion of its facilities and another 5 hectares to be used exclusively for the propagation of the Philippine carabao. The remaining portion was retained by PIA. The Santos heirs remained unpaid, and no action was taken on their case until 16 September 1999 when petitioner filed its manifestation and motion to permit the deposit in court of the amount of P4,664,000 by way of just compensation for the expropriated property of the late Luis Santos subject to such final computation as might be approved by the court.

The Santos heirs, opposing the manifestation and motion, submitted a counter-motion to adjust the compensation from P6/sqm. previously fixed to its current zonal value pegged at P5K/sqm. RTC ruled in favor of respondents. Petitioner brought that the matter to the CA but the petition was outrightly denied.

Petitioner posited that a motion which respondents had filed on 17 February 1984, followed up by other motions subsequent thereto,

was made within the reglementary period that thereby interrupted the 5-year prescriptive period within which to enforce the 1979 judgment. Furthermore, the receipt by respondents of partial compensation in the sum of P72,683.55 constituted partial compliance on the part of petitioners and effectively estopped respondents from invoking prescription expressed in Section 6, Rule 39, of the Rules of Court.

Respondents advanced the view that pursuant to Section 6, Rule 39, of the Rules of Court, the failure of petitioner to execute the judgment, dated 26 February 1979, within five years after it had become final and executory, rendered it unenforceable by mere motion.

ISSUE: (1) W/N the change in present use of the expropriated property from what was originally intended and agreed upon by the agency and the original owner justifies reversion? NO(2) W/N non-payment of just compensation will automatically warrant reversion of the expropriated property back to its owner? NO

SC DOCTRINES: The right of eminent domain is usually understood to be an ultimate

right of the sovereign power to appropriate any property within its territorial sovereignty for a public purpose. Fundamental to the independent existence of a State, it requires no recognition by the Constitution, whose provisions are taken as being merely confirmatory of its presence and as being regulatory, at most, in the due exercise of the power. It reaches to every form of property the State needs for public use and, as an old case so puts it, all separate interests of individuals in property are held under a tacit agreement or implied reservation vesting upon the sovereign the right to resume the possession of the property whenever the public interest so requires it.

Expropriation proceedings are not adversarial in the conventional sense, for the condemning authority is not required to assert any conflicting interest in the property. Thus, by filing the action, the condemnor in effect merely serves notice that it is taking title and possession of the property, and the defendant asserts title or interest in the property, not to prove a right to possession, but to prove a right to compensation for the taking.


Expropriation is not without its limits: first, the taking must be for public use, and second, that just compensation must be given to

the private owner of the property. These twin proscriptions have

their origin in the recognition of the necessity for achieving balance between the State interests, on the one hand, and private rights, upon the other hand, by effectively restraining the former and

affording protection to the latter. In determining "public use," two

approaches are utilized - the first is public employment or the actual

use by the public, and the second is public advantage or benefit. It

is also useful to view the matter as being subject to constant growth, which is to say that as society advances, its demands upon the individual so increases, and each demand is a new use to which the resources of the individual may be devoted.

RULING:(1) The expropriated property has been shown to be for the continued

utilization by the PIA, a significant portion thereof being ceded for the expansion of the facilities of the Bulacan State University and for the propagation of the Philippine carabao, themselves in line with the requirements of public purpose.

The property has assumed a public character upon its expropriation. Surely, petitioner, as the condemnor and as the owner of the property, is well within its rights to alter and decide the use of that property, the only limitation being that it be for public use, which, decidedly, it is. It follows that both by virtue of the judgment, long final, in the expropriation suit, as well as the annotations upon their title certificates, plaintiffs are not entitled to recover possession of their expropriated lots - which are still devoted to the public use for which they were expropriated - but only to demand the fair market value of the same.

The judgment rendered by the Bulacan RTC in 1979 on the expropriation proceedings provides not only for the payment of just compensation to herein respondents but likewise adjudges the property condemned in favor of petitioner over which parties, as

well as their privies, are bound. Petitioner has occupied, utilized

and, for all intents and purposes, exercised dominion over the

property pursuant to the judgment. The exercise of such rights vested to it as the condemnee indeed has amounted to at least a partial compliance or satisfaction of the 1979 judgment, thereby preempting any claim of bar by prescription on grounds of non-execution.

(2) In arguing for the return of their property on the basis of non-payment, respondents ignore the fact that the right of the expropriatory authority is far from that of an unpaid seller in ordinary sales, to which the remedy of rescission might perhaps apply. An in

rem proceeding, condemnation acts upon the property.

After condemnation, the paramount title is in the public under a new and

independent title;

thus, by giving notice to all claimants to a disputed title, condemnation proceedings provide a judicial process for securing better title against all the world than may be obtained by voluntary conveyance.

Respondents first instituted proceedings for payment against petitioner five years after the 1979 judgment had become final. The unusually long delay in bringing the action to compel payment against herein petitioner would militate against them. Consistently with the rule that one should take good care of his own concern, respondents should have commenced the proper action upon the finality of the judgment, which, indeed, resulted in a permanent deprivation of their ownership and possession of the property.

Jesus is Lord Christian School Foundation v City of Pasig GR 152230 The Municipality (now City) of Pasig needed an access road from

ER Santos St., a municipal road near the Pasig Public Market, to Brgy. Sto. Tomas Bukid, Pasig, where 60 to 70 houses were located. The road had to be at least three meters in width, as required by the Fire Code, so that fire trucks could pass through in

case of conflagration. Likewise, the residents in the area needed

the road for water and electrical outlets.

The municipality then decided to acquire 51 square meters out of the 1,791- square meter property of respondents Lorenzo Ching Cuanco, Victor Ching Cuanco and Ernesto Ching Cuanco Kho (Ching Cuangcos) which is abutting E. R. Santos Street.

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The Sangguniang Bayan of Pasig approved an Ordinance authorizing the municipal to initiate expropriation proceedings to acquire the said property and appropriate the fund therefor. The ordinance stated that the property owners were notified of the municipality’s intent to purchase the property for public use as an access road but they rejected the offer.

Municipality filed a complaint against the Ching Cuangcos for the expropriation of the property under Sec. 19 of RA 7160. It appended to the complaint a photocopy of the letter addressed to defendant Lorenzo Ching Chuangco.

Plaintiff deposited with the RTC 15% of the market value of the property based on the latest tax declaration covering the property. On plaintiff’s motion, RTC issued a WoP. Plaintiff caused the annotation of a notice of lis pendens at the dorsal portion of the TCT under the name of Jesus is Lord Christian School Foundation (JILCSFI) which had purchased the property.

Plaintiff constructed therein a cemented road with a width of three meters; the road was called Damayan Street.

Defendants claimed, in their answer that, as early as Feb ’93 they had already sold the property to JILCSFI via DoS. JILCSFI filed a motion to intervene as defendant-in-intervention which the RTC granted. It averred that the plaintiff’s exercise of eminent domain was only for a particular class and not for the benefit of the poor and the landless.

The plaintiff offered in evidence a photocopy of the letter of Engr. Jose Reyes addressed to Lorenzo Ching Cuanco to prove that the plaintiff made a definite and valid offer to acquire the property to the co-owners. However, the RTC rejected the same letter for being a mere photocopy.

RTC issued an order in favor of plaintiff. The plaintiff and intervenor are hereby directed to submit at least two (2) names of their recommended commissioners for the determination of just compensation within ten (10) days from receipt hereof.

RTC held that, as gleaned from the declaration in Ordinance No. 21, there was substantial compliance with the definite and valid offer requirement of Section 19 of R.A. No. 7160, and that the expropriated portion is the most convenient access to the interior of Sto. Tomas Bukid.

CA affirmed the order of the RTC. CA declared that the letter of Engr. Reyes, inviting Lorenzo Ching Cuanco to a conference to discuss with him the road project and the price of the lot, was a

substantial compliance with the "valid and definite offer" requirement under said Section 19. In addition, the CA noted that there was also constructive notice to the defendants of the expropriation proceedings since a notice of lis pendens was annotated at the dorsal portion of the TCT. Finally. CA upheld the public necessity for the subject property based on the findings of the trial court that the portion of the property sought to be expropriated appears to be, not only the most convenient access to the interior of Sto. Tomas Bukid, but also an easy path for vehicles entering the area, particularly fire trucks. Moreover, the CA took into consideration the provision of Article 33 of the LGC’s IRR, which regards the "construction or extension of roads, streets, sidewalks" as public use, purpose or welfare.

JILCSFI filed a MR. CA denied the MR.

ISSUE/S: (1) W/N there was a valid expropriation on the part of the Municipality?

NONE(2) W/N the expropriation of the subject property is subject to the

essential requisites for an easement of right of way? NO

SC DOCTRINES: The exercise of the right of eminent domain, whether directly by the

State or by its authorized agents, is necessarily in derogation of

private rights. It is one of the harshest proceedings known to the

law. Consequently, when the sovereign delegates the power to a political unit or agency, a strict construction will be given against the agency asserting the power. The authority to condemn is to be strictly construed in favor of the owner and against the condemnor. When the power is granted, the extent to which it may be exercised is limited to the express terms or clear implication of the statute in which the grant is contained.

Corollarily, the respondent, which is the condemnor, has the burden of proving all the essentials necessary to show the right of condemnation. It has the burden of proof to establish that it has complied with all the requirements provided by law for the valid exercise of the power of eminent domain.

The Court declared that the following requisites for the valid exercise of the power of eminent domain by a local government unit must be complied with:


1. An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the local government unit, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property. 2. The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless. 3. There is payment of just compensation, as required under Section 9, Article III of the Constitution, and other pertinent laws. 4. A valid and definite offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted.

RULING:(1) The respondent Municipality was burdened to prove the mandatory

requirement of a valid and definite offer to the owner of the property

before filing its complaint and the rejection thereof by the latter. It is

incumbent upon the condemnor to exhaust all reasonable efforts to

obtain the land it desires by agreement.

Failure to prove compliance with the mandatory requirement will result in the dismissal of the complaint.

The purpose of the requirement of a valid and definite offer to be first made to the owner is to encourage settlements and voluntary acquisition of property needed for public purposes in order to avoid the expense and delay of a court action. A reasonable offer in good faith, not merely perfunctory or pro forma offer, to acquire the property for a reasonable price must be made to the owner or his privy. A single bona fide offer that is rejected by the owner will suffice.

In the present case, the respondent failed to prove that before it filed its complaint, it made a written definite and valid offer to acquire the property for public use as an access road. The only evidence adduced by the respondent to prove its compliance with the law is the photocopy of the letter purportedly bearing the signature of Engr. Jose Reyes, to only one of the co-owners, Lorenzo Ching Cuanco.

It bears stressing, however, that the respondent offered the letter

only to prove its desire or intent to acquire the property for a right-

of-way. The document was not offered to prove that the respondent

made a definite and valid offer to acquire the property. Moreover, the RTC rejected the document because the respondent failed to

adduce in evidence the original copy thereof.

The respondent, likewise, failed to adduce evidence that copies of the letter were sent to and received by all the co-owners of the property.

(2) The subject property is expropriated for the purpose of constructing a road. The respondent is not mandated to comply with the essential requisites for an easement of right-of-way under the New Civil Code. Case law has it that in the absence of legislative restriction, the grantee of the power of eminent domain may determine the location and route of the land to be taken unless

such determination is capricious and wantonly injurious. Expropriation is justified so long as it is for the public good and

there is genuine necessity of public character. Government may not

capriciously choose what private property should be taken.

The respondent has demonstrated the necessity for constructing a road from E. R. Santos Street to Sto. Tomas Bukid. The witnesses, who were residents of Sto. Tomas Bukid, testified that although there were other ways through which one can enter the vicinity, no vehicle, however, especially fire trucks, could enter the area except through the newly constructed Damayan Street. This is more than sufficient to establish that there is a genuine necessity for the construction of a road in the area. After all, absolute necessity is not required, only reasonable and practical necessity will suffice.

NONETHELESS, the respondent failed to show the necessity for constructing the road particularly in the petitioner’s property and not elsewhere. The respondent failed to adduce a preponderance of evidence to prove its claims.

There is no showing in the record that an ocular inspection was conducted during the trial. If, at all, the trial court conducted an ocular inspection of the subject property during the trial, the petitioner was not notified thereof. The petitioner was, therefore,

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deprived of its right to due process. It bears stressing that an ocular inspection is part of the trial as evidence is thereby received and

the parties are entitled to be present at any stage of the trial. Consequently, where, as in this case, the petitioner was not notified of any ocular inspection of the property, any factual finding of the court based on the said inspection has no probative weight. The findings of the trial court based on the conduct of the ocular inspection must, therefore, be rejected.

Foreclosure of Real Estate Mortgage

Limpin and Sarmiento v IAC and Ponce 166 S 88 Two (2) lots covered by TCTs, together with two (2) others, were

originally mortgaged in 1973 to Ponce by Sps. Aquino. These two lots were afterwards sold in 1978 by the same Aquino Spouses to Butuan Bay Wood Export Corporation (Butuan Bay).

Limpin obtained against Butuan Bay a money judgment in 1979; and to satisfy the judgment, the two lots were levied on and sold at public auction in 1980, Limpin being the highest bidder. Limpin later sold the lots to his co-petitioner, Sarmiento.

A day before levy was made on the two lots in execution of the judgment, Ponce had initiated judicial proceedings for the foreclosure of the mortgage over said two lots. Judgment was rendered in his favor. At the foreclosure sale, Ponce as the highest bidder acquired the lots.

Ponce moved for confirmation of the foreclosure sale, but the Court confirmed the sale of only two lots, refusing to do so as regards the two, which had been subject of the execution sale in Limpin’s favor.

Ponce then instituted a special civil action in the IAC, impleading Limpin and Sarmiento as indispensable parties respondents.

The court rendered judgment in Ponce’s favor. IAC declared that the sale to Ponce, as the highest bidder in the foreclosure sale of the two lots in question should have been confirmed, subject to Limpin’s (and now Sarmiento’s) equity of redemption. Limpin and Sarmiento appealed.

SC affirmed IAC’s dismissal of petitioners’ petition for review on certiorari. It affirmed the decision of the IAC which ordered the TC to confirm the sale of the two lots and issue a WoP in favor of Ponce.

Rogelio Sarmiento was aware that the Trial Court had the ministerial duty to execute the IAC’s decision (i.e. to confirm the sale and issue a WoP subject to equity of redemption). He knew that he had the prerogative right to exercise his equity of redemption, if not from the moment that the judgment of this Court became F&E, at least until the lower court, subsequently confirmed the sale and issued a WoP in favor of Ponce. BUT Sarmiento did not try to exercise that right before, at or about the time of the confirmation of the foreclosure sale by Judge Solano. Instead, he instituted no less than two (2) actions in the same RTC which were assigned to another branch - attempting to relitigate precisely the same issues which the SC and the IAC had already passed upon and resolved adversely to him. It was not until the lapse of nine (9) months or so after entry of the judgment recognizing his equity of redemption as successor-in-interest of the original mortgagors that Sarmiento finally attempted to exercise his unforeclosed equity of redemption.

Sarmiento filed a motion with the RTC manifesting that he would exercise the right and asked the Court to fix the redemption price. RTC opined that "this should be the subject of the agreement between Ponce and Sarmiento”.

Sarmiento then wrote to Ponce offering P2.6M as redemption price for the two lots. Ponce rejected the offer and averred that the period within which Sarmiento could have exercised such right had lapsed.

Ponce states that the term, equity of redemption, means "the right of the mortgagor to redeem the mortgaged property after his default in the performance of the conditions of the mortgage but before the sale of the property or the judicial confirmation of the Sheriff’s sale." He postulates that from the date Sarmiento's predecessors-in-interest defaulted in their obligations over the mortgaged properties, up to the time when the lower court confirmed the auction sale of those properties, Sarmiento could have exercised his 'equity of redemption."' Not having done so within that time, his equity of redemption had been extinguished.

Sarmiento, OTOH, alleges that the confirmation of the sale of the two lots could not have cut off his equity of redemption;" in fact, "Ponce himself, in his 'Urgent Motion' precisely prayed for the


issuance of a WoP 'subject to the equity of redemption of Rogelio M. Sarmiento' thereby recognizing Sarmiento's equity of redemption beyond confirmation date”. He also argues that he had not been informed of the time when his right of redemption would be cut-off, because he "never received a copy of any Motion for Confirmation, much less notice of hearing thereon in violation of his right to due process" and that he is entitled to a reasonable time, e.g., a year, for the exercise of his equity of redemption.

ISSUE: W/N Sarmiento may still exercise equity of redemption as transferee of the mortgaged property? NOT ANYMORE

SC: The equity of redemption is, to be sure, different from and should not be confused with the right of redemption. The right of redemption in relation to a mortgage-understood in the sense of a prerogative to re-acquire mortgaged property after registration of the foreclosure sale- exists only in the case of the extrajudicial foreclosure of the mortgage. No such right is recognized in a judicial foreclosure except only where the mortgagee is the Philippine National Bank or a bank or banking institution.

Where a mortgage is foreclosed extra-judicially, Act 3135 grants to the mortgagor the right of redemption within one (1) year from the registration of the sheriffs certificate of foreclosure sale.

Where the foreclosure is judicially effected, however, no equivalent right of redemption exists. The law declares that a judicial foreclosure sale, "when confirmed by an order of the court, ... shall operate to divest the rights of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law. Such rights exceptionally "allowed by law" (i.e., even after confirmation by an order of the court) are those granted by the charter of the Philippine National Bank (Acts No. 2747 and 2938), and the General Banking Act (R.A. 337). These laws confer on the mortgagor, his successors in interest or any judgment creditor of the mortgagor, the right to redeem the property sold on foreclosure-after confirmation by the court of the foreclosure sale-which right may be exercised within a period of one (1) year, counted from the date of registration of the certificate of sale in the Registry of Property.

But, to repeat, no such right of redemption exists in case of judicial foreclosure of a mortgage if the mortgagee is not the PNB or a bank or banking institution.

In such a case, the foreclosure sale, "when confirmed by an order of the court shall operate to divest the rights of all the parties to the action and to vest their rights in the purchaser." There then exists only what is known as the equity of redemption. This is simply the right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the secured debt within the 90-day period after the judgment becomes final, in accordance with Rule 68, or even after the foreclosure sale but prior to its confirmation.

Section 2, Rule 68 is the mortgagor's equity (not right) of redemption which, may be exercised by him even beyond the 90-day period "from the date of service of the order,' and even after the foreclosure sale itself, provided it be before the order of confirmation of the sale. After such order of confirmation, no redemption can be effected any longer.

It is this same equity of redemption that is conferred by law on the mortgagor's successors-in-interest, or third persons acquiring rights over the mortgaged property subsequent, and therefore subordinate, to the mortgagee's lien. If these subsequent or junior lienholders be not joined in the foreclosure action, the judgment in the mortgagor's favor is ineffective as to them, of course. In that case, they retain what is known as the "unforeclosed equity of redemption," and a separate foreclosure proceeding should be brought to require them to redeem from the first mortgagee, or the party acquiring title to the mortgaged property at the foreclosure sale, within 90 days, under penalty of losing that prerogative to redeem.

In the case at bar, however, there is no occasion to speak of any "unforeclosed equity of redemption' in Sarmiento's favor since he was properly impleaded in the judicial proceeding where his and Ponce's rights over the mortgaged property were ventilated and specifically adjudicated. The judgment cannot be construed as contemplating or requiring the institution of a separate suit by Ponce to compel Sarmiento to exercise his unforeclosed equity of redemption, or as granting Sarmiento the option to redeem at any time that he pleases, subject only to prescription. This would give rise to that multiplicity of proceedings which the law eschews. The judgment plainly intended that Sarmiento exercise his option to redeem, as successor of the mortgagor.

Dayot v Shell Chemical Company GR 156542 (June 26, 2007)

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Panay Railways, Inc. (PRI) executed a REM contract over six (6) parcels of land located in Iloilo City in favor of Traders Royal Bank (TRB) for purposes of securing its loan obligations to TRB.

PRI failed to pay its loan and so as a consequence, the mortgaged properties were foreclosed and sold at public auction to TRB as the highest bidder. PRI failed to redeem the foreclosed properties. Hence, TRB consolidated its ownership over the subject parcels of land and, thereafter, certificates of title were issued in its name.

Thereafter, TRB filed a Petition for WoP with the RTC. Trial court granted the petition and ordered the issuance of the said writ. However, the writ was not fully implemented.

TRB sold to spouses Dayot five (5) of the subject parcels of land by virtue of a DoS.

Dayot filed a Supplemental Pleading before the RTC praying that she, being the transferee of all the rights and interest of TRB over the parcels of land subject of the Petition for WoP, be substituted as the new petitioner. RTC granted and issued an Alias WoP.

Sps Dayot filed with the RTC a complaint for Recovery of Ownership and Possession, Annulment, Cancellation, Reconveyance, and Damages against TRB, Petron and Shell praying that Shell be directed to vacate the portion of one of the subject parcels of land which it actually possess and for both Petron and Shell to surrender ownership and possession of portions of the said parcels of land.

Petitioner spouses filed a Supplemental Motion for the Issuance of Writ of Possession praying that Shell be ejected from the portion it possesses.

Shell lodged an opposition to petitioner’s Motion alleging that petitioner is guilty of forum shopping.

RTC denied petitioner’s motion for issuance of WoP insofar as Shell is concerned.

Petitioner filed two successive motions praying for an issuance of Alias WoP. Shell opposed. RTC conceded and issued the WoP.

Sheriff served upon Shell a Notice to Vacate. Shell and Petron moved for the reconsideration but the trial court denied it.

Shell filed a petition for certiorari and prohibition with the CA praying for the nullification of RTC orders. CA granted the petition.

Petitoner filed a MR which was denied by the CA. Hence, a petition for review on certiorari was filed.

Petitioner argues that a WoP can still be validly issued and implemented in consonance with the rule that proceedings incident

to extra-judicial foreclosure of mortgages to resolve the possession of third-party claimants may proceed independently of the action which said claimants may bring to enforce or protect their claim of ownership over the property.

Respondent contends that it has the right to possess the disputed property as it has satisfactorily shown that it is the registered owner of and has title over the subject property.

ISSUE: W/N Shell (as third party to the foreclosure proceedings) may be ejected from the property by means of an ex parte WoP? NO

SC: The Court finds that under applicable laws and jurisprudence, respondent cannot be ejected from the property by means of an ex-parte writ of possession.Under Art. 443 of the NCC, one who claims to be the owner of a property possessed by another must bring the appropriate judicial action for its physical recovery. The term "judicial process" could mean no less than an ejectment suit or reivindicatory action, in which the ownership claims of the contending parties may be properly heard and adjudicated.

The ex-parte petition for issuance of a possessory writ filed by petitioner's predecessor, TRB, strictly speaking, is not the kind of "judicial process" contemplated above. Even if the same may be considered a judicial proceeding for the enforcement of one’s right of possession as purchaser in a foreclosure sale, it is not an ordinary suit filed in court, by which one party "sues another for the enforcement or protection of a right, or the prevention or redress of a wrong."

Section 33, Rule 39, of the Rules of Court relating to the right of possession of a purchaser of property in an extra-judicial foreclosure sale provides that upon the expiration of the period of the right of redemption, the possession of the property shall be given to the purchaser or last redemptioner by the same officer unless a third party is actually holding the property adversely to the judgment obligor.

The obligation of a court to issue a writ of possession in favor of the purchaser in an extra-judicial foreclosure sale of a mortgaged property ceases to be ministerial once it is shown that there is a third party in possession of the property who is claiming a right adverse to that of the mortgagor and that such third party is a stranger to the foreclosure proceedings in which the ex-partewrit of possession was applied for.


It bears emphasis that an ex-parte petition for issuance of a writ of possession is a non-litigious proceeding authorized in an extra-judicial foreclosure of mortgage pursuant to Act 3135, as amended. It is brought for the benefit of one party only, and without notice to, or consent by any person adversely interested.

Furthermore, unlike a judicial foreclosure of real estate mortgage under Rule 68 of the Rules of Court where an action for foreclosure is brought before the RTC where the mortgaged property or any part thereof is situated, any property brought within the ambit of Act 3135 is foreclosed by the filing of a petition, not with any court of justice, but with the office of the sheriff of the province where the sale is to be made.

As such, a third person in possession of an extra-judicially foreclosed property, who claims a right superior to that of the original mortgagor, is thus given no opportunity to be heard in his claim. It stands to reason, therefore, that such third person may not be dispossessed on the strength of a mere ex-parte possessory writ, since to do so would be tantamount to his summary ejectment, in violation of the basic tenets of due process.

Sulit v CA and Iluminada Cayco GR 114795 (Feb 17, 1997) Iluminada Cayco executed a REM over her lot in Caloocan City in

favor of Cesar Sulit, to secure a loan of P4 Million. Upon petitioner's failure to pay said loan within the stipulated

period, Sulit resorted to extrajudicial foreclosure of the mortgage as authorized in the contract. Hence, in a public auction, the lot was sold to the mortgagee Sulit who submitted a winning bid of P7 Million. As stated in the Certificate of Sale executed by the notary public, the mortgaged property was sold at public auction to satisfy the mortgage indebtedness of P4 Million.

Sulit petitioned the RTC for the issuance of a WoP in his favor. RTC granted the issuance upon the posting of an indemnity bond of P120K.

Cayco filed a motion to have the auction sale of the mortgaged property set aside and to defer the issuance of WoP. In the same motion, Cayco prayed as an alternative relief that Sulit be directed to pay the sum of P3M which represents the balance of his winning bid of P7M less the mortgage indebtedness of P4M. Respondent Judge denied Cayco’s motion.

Cayco then filed a petition for certiorari with preliminary injunction and/or TRO before respondent CA which immediately issued a status quo order restraining respondent judge from implementing his order and the WoP issued pursuant thereto.

Sulit asserts that CA gravely erred when it failed to appreciate and consider the supposed legal significance of the bouncing checks which Cayco issued and delivered to Sulit as payment for the agreed or stipulated interest on the mortgage obligation.

Petitioner argues that it is ministerial upon the court to issue a WoP after the foreclosure sale and during the redemption period, invoking Secs. 7 and 8 of Act 3135.

ISSUE: W/N the mortgagee or purchaser in an extrajudicial foreclosure sale is entitled to the issuance of a WoP over the mortgaged property despite his failure to pay the surplus proceeds of the sale to the mortgagor or the person entitled thereto? NO

SC: The application of the proceeds from the sale of the mortgaged property to the mortgagor's obligation is an act of payment, not payment by dation; hence, it is the mortgagee's duty to return any surplus in the selling price to the mortgagor. Perforce, a mortgagee who exercises the power of sale contained in a mortgage is considered a custodian of the fund, and, being bound to apply it properly, is liable to the persons entitled thereto if he fails to do so. And even though the mortgagee is not strictly considered a trustee in a purely equitable sense, but as far as concerns the unconsumed balance, the mortgagee is deemed a trustee for the mortgagor or owner of the equity of redemption.

Surplus money, in case of a foreclosure sale, gains much significance where there are junior encumbrancers on the mortgaged property. Jurisprudence has it that when there are several liens upon the premises, the surplus money must be applied to their discharge in the order of their priority. A junior mortgagee may have his rights protected by an appropriate decree as to the application of the surplus, if there be any, after satisfying the prior mortgage. His lien on the land is transferred to the surplus fund. And a senior mortgagee, realizing more than the amount of his debt on a foreclosure sale, is regarded as a trustee for the benefit of junior encumbrancers.

The general rule that mere inadequacy of price is not sufficient to set aside a foreclosure sale is based on the theory that the lesser the price the easier it

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will be for the owner to effect the redemption. The same thing cannot be said where the amount of the bid is in excess of the total mortgage debt. The reason is that in case the mortgagor decides to exercise his right of redemption, Section 30 of Rule 39 provides that the redemption price should be equivalent to the amount of the purchase price, plus one per cent monthly interest up to the time of the redemption, together with the amount of any assessments or taxes which the purchaser may have paid thereon after purchase, and interest on such last-named amount at the same rate.

Section 4 of Rule 68, merely provides that where there is a balance or residue after payment of the mortgage, the same shall be paid to the mortgagor. If the mortgagee is retaining more of the proceeds of the sale than he is entitled to, this fact alone will not affect the validity of the sale but simply gives the mortgagor a cause of action to recover such surplus. This is likewise in harmony with the decisional rule that in suing for the return of the surplus proceeds, the mortgagor is deemed to have affirmed the validity of the sale since nothing is due if no valid sale has been made.

Spouses Saguan v PBC GR 159882 (Nove 23, 2007) Petitioners Sps. Ruben Saguan and Violeta Saguan obtained a

loan of P3M from Philippine Bank of Communications (PBC). To secure the obligation, they mortgaged five parcels of land.

Because petitioners defaulted in the payment of their mortgage indebtedness, PBC extra-judicially foreclosed the mortgage. In the auction sale, respondent PBC was the only and highest bidder for P6M. And so sheriff’s certificate of sale was executed and annotated at the back of the petitioners’ titles.

As petitioner’s failed to redeem the properties within the one-year period, TCTs covering the subject parcels of land were issued in the name of PBC in lieu of the old ones. PBC consolidated ownership of properties in its favor.

Since the parcels of land were in physical possession of petitioners and other persons, PBC, after due demand, filed a petition for WoP with the RTC.

Petitioners filed an Opposition to the petition for WoP to which respondent filed a Comment.

Petitioners argued that a writ of possession should not issue considering respondent’s failure to return the excess or surplus proceeds of the extrajudicial foreclosure sale based on the ruling in Sulit v. Court of Appeals.

In refutation, respondent points to petitioners’ remaining unsecured obligations with the former to which the excess or surplus proceeds were applied.

RTC issued two separate orders requiring respondent to file a Formal Offer of Evidence. Respondent failed to comply with the aforesaid orders thus prompting petitioners to file a MTD.

Respondent belatedly filed its Formal Offer of Evidence. RTC issued an order denying petitioners’ Motion to Present Evidence and granted the petition for WoP.

Upon petition for certiorari and mandamus, CA rejected petitioners’ allegations of GAD. CA affirmed respondent’s entitlement to a WoP as a matter of right, the latter having consolidated its ownership over the parcels of land upon expiration of redemption period. It emphasized that the issue on the failure to return the excess or surplus proceeds of the auction sale had been squarely met by the respondent, and therefore, the case was distinguishable from Sulit v. Court of Appeals. In all, the CA upheld the general rule that the issuance of a writ of possession to a purchaser in an extrajudicial foreclosure sale becomes merely a ministerial function of the court.

ISSUE/S: (1) W/N a WoP should issue in favor of respondents? YES(2) W/N the excess or surplus proceeds of the foreclosure sale were

validly applied to petitioners’ remaining unsecured obligations? NO

SC: A writ of possession may be issued either 1) within the one-year redemption period, upon the filing of a bond, or 2) after the lapse of the redemption period, without need of a bond.

A writ of possession is an order enforcing a judgment to allow a person’s recovery of possession of real or personal property. An instance when a writ of possession may issue is under Act No. 3135, as amended by Act No. 4118, on extrajudicial foreclosure of real estate mortgage.

Within the redemption period the purchaser in a foreclosure sale may apply for a writ of possession by filing for that purpose an ex-parte motion under oath, in the corresponding registration or cadastral proceeding in the case of property covered by a Torrens title. Upon the filing of an ex-parte motion and the approval of the corresponding bond, the court is expressly directed to issue the WoP.


On the other hand, after the lapse of the redemption period, a writ of possession may be issued in favor of the purchaser in a foreclosure sale as the mortgagor is now considered to have lost interest over the foreclosed property. Consequently, the purchaser, who has a right to possession after the expiration of the redemption period, becomes the absolute owner of the property when no redemption is made. In this regard, the bond is no longer needed. The purchaser can demand possession at any time following the consolidation of ownership in his name and the issuance to him of a new TCT. After consolidation of title in the purchaser’s name for failure of the mortgagor to redeem the property, the purchaser’s right to possession ripens into the absolute right of a confirmed owner. At that point, the issuance of a writ of possession, upon proper application and proof of title, to a purchaser in an extrajudicial foreclosure sale becomes merely a ministerial function. Effectively, the court cannot exercise its discretion.

(1) Having discussed the rules on foreclosure, the issuance by the RTC of a writ of possession in favor of the respondent in this case is proper. The SC has consistently held that the duty of the trial court to grant a writ of possession in such instances is ministerial, and the court may not exercise discretion or judgment. The propriety of the issuance of the writ was heightened in this case where the respondent’s right to possession of the properties extended after the expiration of the redemption period, and became absolute upon the petitioners’ failure to redeem the mortgaged properties.

A careful reading of Sulit will readily show that it was decided under a different factual milieu. In Sulit, the plea for a writ of possession was made during the redemption period and title to the property had not, as yet, been consolidated in favor of the purchaser in the foreclosure sale. In stark contrast, the herein petitioners failed to exercise their right of redemption within the one-year reglementary period provided under Section 6 of Act No. 3135, as amended, and ownership over the properties was consolidated in, and corresponding titles issued in favor of, the respondent.

The proceeding in a petition for a writ of possession is ex-parte and summary in nature. It is a judicial proceeding brought for the benefit of one party only and without need of notice to any person claiming an adverse interest. It is a proceeding wherein relief is granted even without giving the person against whom the relief is sought an opportunity to be heard. By its very nature, an ex-parte petition for issuance of a writ of possession is a non-litigious proceeding authorized under Act No. 3135, as amended. Be

that as it may, the debtor or mortgagor is not without recourse. A party may file a petition to set aside the foreclosure sale and to cancel the writ of possession in the same proceedings where the writ of possession was requested.

(2) The foreclosure of petitioners’ properties was meant to answer only the obligation secured by the mortgage. Article 2126 of the Civil Code unequivocally states: “The mortgage directly and immediately subjects the property upon which it is imposed, whoever the possessor may be, to the fulfillment of the obligation for whose security it was constituted.

Even if petitioners have remaining obligations with respondent, these obligations, as conceded by respondent itself, were not collateralized by the foreclosed properties. Furthermore, under Section 1 of Act No. 3135 as amended, the special power of attorney authorizing the extrajudicial foreclosure of the real estate mortgage must be either (1) inserted or stated in the mortgage deed itself; or (2) the authority is attached thereto. Thus, petitioners’ supposed remaining obligations which were not secured by the mortgage cannot be made subject, or even susceptible, to the extrajudicial foreclosure of mortgage.

However, petitioners’ remedy lies in a separate civil action for collection of a sum of money. The SC has previously held in Sulit v. CA that where the mortgagee retains more of the proceeds of the sale than he is entitled to, this fact alone will not affect the validity of the sale but simply give the mortgagor a cause of action to recover such surplus.

Monzon v Addio Properties GR 171827 (Sep 17, 2008) Sps. Relova and the Sps. Perez alleged that on Dec. 28, 1998,

Monzon executed a PN in favor of the sps. Perez for the amount of P600K with interest at 5% per month. This was secured by a 300 sq m lot in Tagaytay. On Dec. 31, 1998, Monzon executed a Deed of Absolute Sale over the said parcel of land in favor of Sps. Perez.

On March 29, 1999, Monzon executed another PN, this time in favor of the spouses Relova for the amount of P200K with interest of 5%/month. This loan was secured by a 200 sq. m. lot, another portion of the Tagaytay lot. On Dec. 27, 1999, Monzon executed a Deed of Conditional Sale over said parcel of land in favor of Sps. Relova.

On Oct 23, 1999, the Coastal Lending Corporation, a corporation which Monzon was indebted to for the amount of P3M, extra-

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judicially foreclosed the entire property including the portions mortgaged and subsequently sold to respondents. The winning bidder in the foreclosure, Addio Properties Inc., paid the amount of P5M leaving P1M residue.

According to respondents, this residue amount, which is in the custody of Atty. Luna as Branch CoC should be turned over to them pursuant to Sec. 4, Rule 68 of the RoC. Thus, respondents pray in their Petition for Injunction for a judgment (1) finding Monzon liable to the spouses Perez in the amount of P1,215,000.00 and to the spouses Relova in the amount of P385,000.00; (2) ordering Atty. Luna to deliver said amounts to respondents; and (3) restraining Atty. Luna from delivering any amount to Monzon pending such delivery in number (2).

Monzon claimed that the Petition for Injunction should be dismissed for failure to state a cause of action. She likewise claimed that respondents could no longer ask for the enforcement of the two promissory notes because she had already performed her obligation to them by dacion en pago as evidenced by the Deed of Conditional Sale and the Deed of Absolute Sale. As regards the fund in the custody of Atty. Luna, respondents cannot acquire the same without a writ of preliminary attachment or a writ of garnishment in accordance with the provisions of Rule 57 and Section 9(c), Rule 39 of the Revised Rules of Civil Procedure.

RTC, citing the absence of petitioner and her counsel on said hearing date despite due notice, granted an oral Motion by the respondents by issuing an Order allowing the ex parte presentation of evidence by respondents. RTC then rendered a decision in favor of respondents.

Monzon filed a Notice of Appeal. She 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.

Addio Properties Inc. filed before the TC a Motion for Intervention which was granted.

CA dismissed the appeal. Monzon filed the instant pet for review on certiorari.

ISSUE: (only re: foreclosure) W/N respondents are entitled to the residue of the amount paid in the foreclosure sale? NO

SC: Section 4, Rule 68 of the Rules of Court is the basis of respondent’s alleged cause of action entitling them to the residue of the amount paid in the foreclosure sale. 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, 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.

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.In view of the foregoing discussions, the SC finds 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.

However, while the case should indeed be dismissed insofar as Atty. Luna is concerned, the same is not necessarily true with respect to Monzon. Other than respondents’ prayer that the amount due to respondents be delivered by Atty. Luna to them, they also pray for a judgment declaring Monzon liable for such amounts. Said prayer, as argued by Monzon herself, may constitute a cause of action for collection of sum of money against Monzon.

The rule is now settled that a mortgage creditor may elect to waive his security and bring, instead, an ordinary action to recover the indebtedness with the right to execute a judgment thereon on all the properties of the debtor including the subject matter of the mortgage, subject to the qualification that if he fails in the remedy elected by him, he cannot pursue further the remedy he has waived.

However, due to the fact that construing respondents’ Petition for Injunction to be one for a collection of sum of money would entail a waiver by the respondents of the mortgage executed over the subject properties, we should proceed with caution before making such construction. The Court, therefore, resolves that upon the remand of this case to the trial court, respondents should be ordered to manifest whether the Petition for


Injunction should be treated as a complaint for the collection of a sum of money.

If respondents answer in the AFFIRMATIVE – the case shall proceed with the presentation of evidence for defense. If respondents answer in the NEGATIVE – the case shall be dismissed, without prejudice to the exercise of respondents’ right as mortgage creditors. If respondents’ mortgage contract was executed BEFORE the execution of mortgage contract with Addio, respondents would be first mortgagors, and thus would be entitled to foreclose the property as against any subsequent possessor pursuant to Art. 2126 of the NCC. If respondents’ mortgage contract was executed AFTER the execution of the MC with Addio, respondents as second mortgagors are entitled to a right of redemption pursuant to Sec. 6 of Art. 3135.

Unionbank v CA and Fermina & Reynaldo Dario GR 133366 The case stemmed a REM executed by Sps. Leopoldo and Jessica

Dario (mortgagors) in favor of Unionbank to secure a P3M loan. For non-payment of obligation, Unionbank extrajudicially foreclosed the property mortgaged and sold the same at public auction, with itself posting the highest bid.

One week before the redemption period expired, private respondents filed a complaint for Annulment of sale and REM reconveyance and prayer for restraining notice of lis pendens with the RTC of QC against mortgagors, Unionbank, the RD, and the City Sheriff of QC.

RTC issued a TRO enjoining the redemption of property within the statutory period and its consolidation under Unionbank’s name. RTC judge subsequently settled the motion in favor of Unionbank and dismissed the complaint.

PR Sps Dario filed a MR of the dismissal. Without notifying PR, Unionbank consolidated its title over the foreclosed property.

Private respondents filed an amended complaint and alleged that they, not the mortgagors, are the true owners of the property mortgaged and insisting on the invalidity of both the mortgage and its subsequent extrajudicial foreclosure.

RTC held the mortgagors and the City Sheriff of QC in default and sustained Unionbank’s contention that the act sought to be enjoined had been enforced negating the need of hearing the application for PI.

CA nullified the consolidationof ownership and ordered the RD to cancel the certificate of title in Unionbank’s name. Hence, Unionbank came to the SC claiming to be a mortgagee in GF and for value with a right to consolidate ownership over the foreclosed property with the redemption period having expired and there having been no redemptioners.

ISSUE: Was the consolidation of title in Unionbank’s name proper? YES

SC: It is settled that the buyer in a foreclosure sale becomes the absolute owner of the property purchased if it is not redeemed during the period of one year after the registration of the sale. Consolidation took place as a matter of right since there was no redemption of the foreclosed property and the TRO expired upon dismissal of the complaint. UNIONBANK need not have informed private respondent that it was consolidaint its title over the property, upon the expiration of the redemption period, without the judgment debtor having made use of his right of redemption, the ownership of the property sold becomes consolidated in the purchaser.13 Notice to the mortgagors and with more reason, to private respondents who are not even parties to the mortgage contract nor to the extra judicial sale is not necessary.

In a public bidding during extra-judicial foreclosure, the creditor —mortgagee, trustee, or other person authorized to act for the creditor may participate and purchase the mortgaged property as any other bidder. Thereafter the mortgagor has one year within which to redeem the property from and after registration of sale with the Register of Deeds.15 In case of non-redemption, the purchaser at foreclosure sale shall file with the Register of Deeds, either a final deed of sale executed by the person authorized by virtue of the power of attorney embodied in the deed or mortgage, or his sworn statement attesting to the fact of non-redemption; whereupon, the Register of Deeds Shall issue a new certificate of title in favor of the purchaser after the owner's duplicate of the certificate has been previously delivered and canceled. Thus, upon failure to redeem foreclosed realty, consolidation of title becomes a matter of right on the part of the auction buyer, and the issuance of a certificate of title in favor of the purchaser becomes ministerial upon the Register of Deeds.

There is nothing erroneous with the denial of private respondents' application for preliminary prohibitory injunction. The acts complained of have already been consummated. It is impossible to restrain the

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performance of consummated acts through the issuance of prohibitory injunction. When the act sought to be prevented had long been consummated, the remedy of injunction could no longer be entertained, hearing the application for preliminary injunction would just be an exercise in futility.

In the case at bar, the consolidation of ownership over the mortgaged property in favor of UNIONBANK and the issuance of a new title in its name during the pendency of an action for annulment and reconveyance will not cause irreparable injury to private respondents who are plaintiffs in the said preliminary injunction. This is because as purchaser at a public auction, UNIONBANK is only substituted to and acquires the right, title, interest and claim of the judgment debtors or mortgagors to the property at the time of levy.

Ardiente v Provincial Sheriff GR 148448 (August 17, 2004) Sps. Ardiente obtained a loan in the amount of P100K from the

Peninsula Development Bank (PDB) to be amortized in six (6) years on account of which they executed a PN. To secure the loan, the Ardientes executed in favor of PDB a REM over a parcel of land at Mabutag, Quezon and three (3) parcels of land at Guinayangan, Quezon. Out of the proceeds of the loan, the Ardientes purchased a minibus costing P81K.

The minibus met an accident and as a result of which, it sustained heavy damages and rendered the Ardientes unable to pay their loan. They later on were granted by PDB an addtl loan of P43K.

After several demands for the payment of their obligation to the bank, the Ardientes failed to settle the same.

PDB then extrajudicially foreclosed the mortgage and the parcels of land were sold at a public auction to the bank, which was the highest bidder.

The bank later notified the Ardientes that they had one (1) year to redeem the property. Two days before expiration of the period to redeem, the sps filed before the RTC a complaint against the bank, sheriff and the RD for Annulment of Auction Sale with PI and Damages. They capitalized on the alleged lack of notice to them of the “judicial foreclosure auction sale”.

The defendants maintained that there was notice, coupled with a publication of Notice of Public Auction Sale in a newspaper of gen

circulation supported by publishers’ affidavit attached to the record in the office of the Provincial Sheriff.

The TC, noting the absence of documentary evidence showing strict compliance with the statutory reqs on publication of notice of extra-judicial foreclosure of mortgage, declared the foreclosure and the sale of the mortgaged properties null and void.

PDB appealed to the CA. CA reversed the decision of the trial court after finding the argument of the PDB tenable that the lack of required notice and publication of the extra-judicial foreclosure of mortgage was not averred in the complaint cannot be the basis of an adverse judgment. The issue of lack of posting and publication was not even discussed nor even touched in the testimony of Rustico Ardiente. Moreover, lack of personal notice to the mortgagors is not a ground to set aside the foreclosure sale.

ISSUE: W/N the lack of notice to the mortgagors warrants the nullity of a foreclosure sale? NO

SC: It is settled that personal notice to the mortgagor in extra-judicial foreclosure proceedings is not necessary, hence, not a ground to set aside the foreclosure sale.

Despite petitioners’ non-allegation of lack of publication of notice of foreclosure in their Complaint, the bank pleaded in its Answer (1) "that petitioners were duly notified of the extrajudicial foreclosure and public auction sale" and "there was sufficient notice and publication served to all concerned of said public auction sale," and (2) that it and the Office of the provincial Sheriff "fully complied with the requirements of law under Act 3135, more specifically with regard to notices of the public auction as well as the extra-judicial foreclosure in accordance with law."

Unfortunately, petitioner presented no evidence before the trial court to prove the absence of publication of the notice despite the fact that PDB in its Answer, squarely pleaded as a defense the foreclosure sale and petitioner’s receipt of the "notice of the sale which was published in a newspaper of general circulation." That the lack of publication of the notice of foreclosure was never raised in issue by petitioner and that it is not within the issues framed by the parties in the trial court are then too obvious.

BPI Family Savings Bank v SpsVeloso 436 S 1


Respondent spouses obtained a loan from petitioner’s predecessor Family Bank and Trust Co. To secure payment of the loan, respondent spouses executed in favor of the bank a deed of mortgage over three (3) parcels of land with improvements.

Respondents, for value, executed a PN for P1.3M. However, respondents defaulted in the monthly installments due on their loan. Family Bank then instituted extrajudicial foreclosure proceedings on the mortgaged properties. Properties were subsequently sold at public auction with the bank as the highest bidder. Family Bank assigned all its rights and interests in the foreclosed prop to BPI.

The sheriff’s cert of sale was registered with the RD. Respondents wrote BPI offering to redeem the foreclosed properties for P1,872,935. This was, however, rejected.

Respondents filed in the RTC a complaint for annulment of foreclosure with consignation and prayer for damages. On motion of respondents, RTC allowed respondents to deposit with the CoC the amount of P1.5M representing the redemption price.

Meanwhile, BPI was able to secure a WoP over the foreclosed properties. Respondents filed a pet for certiorari with PI before the CA. CA granted respondents’ motion for issuance of PMI.

Eventually, however, CA resolved the issue of possession in favor of BPI and lifted the PMI.

Upon motion of respondents, RTC ordered the released of P1.4M of the consigned amount to respondents with the balance of P100K to take the place of the injunction bond to answer for whatever petitioner might suffer from the injunction.

After almost a decade, RTC rendered a decision declaring the validity of the extra-judicial foreclosure of the mortgaged properties of respondents but allowed the redemption of the same for the amount of P2,140,000. BPI elevated the matter to the CA which affirmed the decision of the RTC with modification declaring P2,678,639 as the redemption price.

ISSUE: Did respondent sppuses comply with all the requirements for the redemption of the subject properties? NO

SC: The general rule in redemption is that it is not sufficient that a person offering to redeem manifests his desire to do so. The statement of intention must be accompanied by an actual and simultaneous tender of payment. This constitutes the exercise of the right to repurchase.

Consequently, in this case, the offer by respondents to redeem the foreclosed properties for P1,872,935 and the subsequent consignation in

court of P1,500,000, while made within the period of redemption, was ineffective since the amount offered and actually consigned not only did not include the interest but was in fact also way below the P2,782,554.66 paid by the highest bidder/purchaser of the properties during the auction sale.

In order to effect a redemption, the judgment debtor must pay the purchaser the redemption price composed of the following: (1) the price which the purchaser paid for the property; (2) interest of 1% per month on the purchase price; (3) the amount of any assessments or taxes which the purchaser may have paid on the property after the purchase; and (4) interest of 1% per month on such assessments and taxes x x x.

Furthermore, Article 1616 of the Civil Code of the Philippines provides that the vendor cannot avail himself of the right to repurchase without returning to the vendee the price of the sale. It is not difficult to understand why the redemption price should either be fully offered in legal tender or else validly consigned in court. Only by such means can the auction winner be assured that the offer to redeem is being made in good faith.

The sum of P1,400,000 consigned by respondents in Branch 94 was subsequently withdrawn by them, leaving only P100,000 to take the place of the injunction bond. This would have been tantamount to requiring petitioner to accept payment by installments as there would have necessarily been an indefinite extension of the redemption period.

The law granted respondents the right of redemption. But in so granting that right, the law intended that their offer to redeem be valid and effective, accompanied by an actual tender of the redemption price. Fixing a definite term within which the property should be redeemed is meant to avoid prolonged economic uncertainty over the ownership of the thing sold. In the case at bar, the offer was not a legal and effective exercise of the right of redemption contemplated by law, hence, refusal of the offer by petitioner was completely justified.

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Partition

FiguracionGerilla v Vda de Figuracion GR 154322 (August 22, 2006) Spouses Leandro and respondent Carolina Figuracion (now both

deceased) had six children: petitioner AND respondents Elena Figuracion-Ancheta (now deceased), Hilaria Figuracion, Felipa Figuracion-Manuel, Quintin Figuracion and Mary Figuracion-Ginez.

Leandro executed a deed of quitclaim over his real properties in favor of his six (6) children. When he died, he left behind two (2) parcels of land. Leandro sold a portion to Lazaro Adviento.

What gave rise to the complaint for partition was a dispute between petitioner and her sister, respondent Mary over the eastern half portion of Lot 707.

Lot 707 belonged to Eulalio Adviento. When Adviento died, his two daughters Agripina and respondent Carolina Figuracion succeeded him to it. Agripina executed a deed of quitclaim in favor of petitioner over the eastern half portion of lot 707. Before Agripina’s death, however, respondent Carolina adjudicated unto herself via affidavit Rule 74 the entire lot which she later sold to respondents Felipa and Hilaria Figuracion.

Petitioner went to the US and stayed there for ten years. When she returned, she built a house on the eastern half-portion of Lot 707.

Petitioner sought the extra-judicial partition of all the properties held in common by her and respondents. She filed a complaint in the RTC for partition, annulment of docs, reconveyance, quieting of titile and damages against respondents praying for the ff: 1) the partition of Lots 2299 and 705; (2) the nullification of the affidavit of self-adjudication executed by respondent Carolina over Lot 707, the deed of absolute sale in favor of respondents Felipa and Hilaria, and TCT No. 42244; (3) a declaration that petitioner was the owner of one-half of Lot 707 and (4) damages. The case was docketed as Civil Case No. U-5826.

OTOH, respondents took the position that Leandro’s estate should first undergo settlement proceedings before partition among the heirs could take place. And they claimed that an accounting of expenses chargeable to the estate was necessary for such settlement.

RTC rendered judgment nullifying Carolina’s affidavit of self-adjudication and deed of absolute sale of Lot 707. It also declared Lots 2299 and 705 as exclusive properties of Leandro Figuracion and therefore part of his estate. The RTC, however, dismissed the complaint for partition, reconveyance and damages on the ground that it could not grant the reliefs prayed for by petitioner without any (prior) settlement proceedings wherein the transfer of title of the properties should first be effected.

On appeal, the CA upheld the dismissal of petitioner’s action for partition for being premature. The CA reversed the decision, however, with respect to the nullification of the self-adjudication and the deed of sale. Upholding the validity of the affidavit of self-adjudication and deed of sale as to Carolina’s one-half pro-indiviso share, it instead partitioned Lot 707. Dissatisfied, respondents elevated the CA decision to SC.

ISSUE: W/N there needs to be a prior settlement of Leandro’s intestate estate (an accounting of the income of Lots 2299 and 705, the payment of expenses, liabilities and taxes, plus compliance with other legal requirements, etc.) before the properties can be partitioned or distributed? YES

SC: There are two ways by which partition can take place under Rule 69: by agreement under Section 2 and through commissioners when such agreement cannot be reached, under Sections 3 to 6.


Neither method specifies a procedure for determining expenses chargeable to the decedent’s estate. While Section 8 of Rule 69 provides that there shall be an accounting of the real property’s income (rentals and profits) in the course of an action for partition, here is no provision for the accounting of expenses for which property belonging to the decedent’s estate may be answerable, such as funeral expenses, inheritance taxes and similar expenses enumerated under Section 1, Rule 90 of the Rules of Court.

In a situation where there remains an issue as to the expenses chargeable to the estate, partition is inappropriate. While petitioner points out that the estate is allegedly without any debt and she and respondents are Leandro Figuracion’s only legal heirs, she does not dispute the finding of the CA that "certain expenses" including those related to her father’s final illness and burial have not been properly settled. hus, the heirs (petitioner and respondents) have to submit their father’s estate to settlement because the determination of these expenses cannot be done in an action for partition. In estate settlement proceedings, there is a proper procedure for the accounting of all expenses for which the estate must answer. If it is any consolation at all to petitioner, the heirs or distributees of the properties may take possession thereof even before the settlement of accounts, as long as they first file a bond conditioned on the payment of the estate’s obligations.

Sepulveda Sr v AttyPelaez GR 151295 (January 31, 2005) The eleven (11) lots were among the twenty-five (25) parcels of

land which Atty. Pelaez’s mother, Dulce Sepulveda, inherited from her grandmother, Dionisia Sepulveda under the Project of Partition submitted by petitioner Pedro Sepulveda Sr as administrator of the former’s estate.

Under the said deed, Pedro Sepulveda, Sr. appeared to be the owner of an undivided portion of one of the subject parcels of land, while his brother and Dulce’s uncle Santiago Sepulveda, was the undivided owner of one-half (1/2) of the parcels of land covered by two (2) of the subject parcels of land. Dulce and her uncles, Pedro and Santiago, were likewise indicated therein as the co-owners of the eleven other parcels of land, each with an undivided one-third (1/3) share thereof.

PR Atty. Pelaez filed a complaint against his granduncle Pedro Sepulveda Sr. with the CFI of Cebu for the recovery of possession and ownership of his ½ undivided share of the subject parcels of land, and for the partition among co-owners. Atty. Pelaez alleged that his mother Dulce died intestate on March 2, 1944, and aside

from himself, was survived by her husband Rodolfo Pelaez and her mother Carlota Sepulveda. Dulce’s grandfather Vicente Sepulveda died intestate on October 25, 1920, and Dulce was then only about four years old. According to Pelaez, Carlota (his grandmother – mom of Dulce) repeatedly demanded the delivery of her mother’s (Dionisa) share in the eleven (11) parcels of land, but petitioner who was then the Municipal Mayor refused to do so.

Dulce, likewise, demanded the delivery of her share in the eleven (11) parcels of land but petitioner still refused, claiming that he needed to continue to possess the property to reap the produce therefrom which he used for the payment of realty taxes on the subject properties. Atty. Pelaez alleged that he himself demanded the delivery of his mother’s (Dulce) share on several occasions, but to no avail.

Atty. Pelaez further alleged that petitioner executed an affidavit stating that he was the sole heir of Dionisia when in fact she was survived by her three (3) sons (Santiago, Pedro and Vicente); that petitioner also executed a DoS over one of the subject parcels of land in favor of the City of Danao and received the proceeds thereto without his knowledge. Thus, Atty Pelaez prays for the ff: 1. Declaring Atty Pelaez as the absolute owner of 1/2 portion of the 2 parcels of land described in paragraph 2 of the complaint; 2. Declaring the plaintiff the absolute owner of the 1/3 portion of the 9 parcels of land described in paragraph 3 of the complaint; 3. Ordering the defendant to deliver to the plaintiff the latter’s 1/3 share of P7,492.00 representing the purchase price of the parcel of land described in paragraph 3(a) of the complaint with interest thereon until the amount is fully paid; 4. Ordering the partition and segregation of the 1/2 portion belonging to the plaintiff of the 2 parcels of land; 5. Ordering the partition and segregation of the 1/3 portion belonging to the plaintiff of the remaining 8 parcels of land.

Pedro Sepulveda, Sr. admitted having executed a deed of sale over one of the parcels of land in favor of Danao City, but averred that the latter failed to pay the purchase price thereof; besides, Atty. Pelaez had no right to share in the proceeds of the said sale. He likewise denied having received any demand for the delivery of Dulce’s share of the subject properties from the latter’s mother Carlota, or from Atty. Pelaez himself.

During the trial, Pedro Sepulveda, Sr. died intestate. A petition for the settlement of his estate was filed. His daughter, petitioner

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Socorro Sepulveda Lawas, was appointed administratrix of his estate and who substituted petitioner in this case.

To prove delivery of Dulce’s share under the project of partition, the petitioner presented an Affidavit of Consolidation covering thirteen (13) parcels of land which were deeded to her under the PoP as well as the Order from the CFI declaring that Dulce, through her grandchildren and her mother Carlota, had received her share of the estate from petitioner Pedro Sepulveda Sr.

According to the petitioner, Dulce and Pedro Sepulveda, Sr. had a verbal agreement wherein the eleven parcels of land covered by the complaint would serve as the latter’s compensation for his services as administrator of Dionisia’s estate. Thus, upon the termination of Special Proceeding No. 778-0, and subsequent to the distribution of the shares of Dionisia’s heirs, Pedro Sepulveda, Sr. then became the sole owner of Dulce’s shares. The petitioner likewise adduced evidence that Santiago Sepulveda died intestate and was survived by his wife, Paz Velez Sepulveda and their then minor children. It was pointed out that Atty. Pelaez failed to implead Paz Sepulveda and her minor children as parties-defendants in the complaint. It was further claimed that Pedro Sepulveda, Sr. declared one of the parcels of land under his name for taxation purposes since the beginning of 1948. It was likewise alleged that the eleven (11) parcels of land deeded to Dulce under the Project of Partition had been declared for taxation purposes under the name of Pedro Sepulveda since 1974, and that he and his heirs paid the realty taxes thereon.

CFI rendered judgment in favor of Atty. Pelaez. The trial court ruled that Atty. Pelaez’s action for reconveyance based on constructive trust had not yet prescribed when the complaint was filed; that he was entitled to a share in the proceeds of the sale of the property to Danao City; and that the partition of the subject property among the adjudicatees thereof was in order.

The petitioner appealed the decision to the CA, which rendered judgment on January 31, 2002, affirming the appealed decision with modification.

ISSUE: W/N partition in this case is proper? NOT YET

SC: The petition is granted for the sole reason that the respondent failed to implead as parties, all the indispensable parties in his complaint.

It appears that when Atty. Pelaez filed the complaint, his father, Rodolfo Pelaez, was still alive. Thus, when his mother Dulce Pelaez died intestate, she was survived by her husband Rodolfo and their son, the private respondent. Under Article 996 of the New Civil Code, Rodolfo Pelaez, as surviving spouse, is entitled to a portion in usufruct equal to that corresponding by way of legitime to each of the legitimate children who has not received any betterment.

Section 1, Rule 69 of the Rules of Court provides that in an action for partition, all persons interested in the property shall be joined as defendants. Thus, all the co-heirs and persons having an interest in the property are indispensable parties; as such, an action for partition will not lie without the joinder of the said parties.

The mere fact that Pedro Sepulveda, Sr. has repudiated the co-ownership between him and Atty. Pelaez does not deprive the trial court of jurisdiction to take cognizance of the action for partition, for, in a complaint for partition, the plaintiff seeks, first, a declaration that he is a co-owner of the subject property; and, second, the conveyance of his lawful shares.

In the present action, Atty. Pelaez as the plaintiff in the trial court, failed to implead the following indispensable parties: his father, Rodolfo Pelaez; the heirs of Santiago Sepulveda, namely, Paz Sepulveda and their children; and the City of Danao which purchased one of the subject parcels of land from Pedro Sepulveda, Sr. and maintained that it had failed to pay for the purchase price of the property.

Rodolfo Pelaez is an indispensable party he being entitled to a share in usufruct, equal to the share of the respondent in the subject properties. There is no showing that Rodolfo Pelaez had waived his right to usufruct.

Indeed, the presence of all indispensable parties is a condition sine qua non for the exercise of judicial power. It is precisely when an indispensable party is not before the court that the action should be dismissed. Thus, the plaintiff is mandated to implead all the indispensable parties, considering that the absence of one such party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present. One who is a party to a case is not bound by any decision of the court, otherwise, he will be deprived of his right to due process. Without the presence of all the other heirs as plaintiffs, the trial court could not validly render judgment and grant relief in favor of the private


respondent. The failure of the private respondent to implead the other heirs as parties-plaintiffs constituted a legal obstacle to the trial court and the appellate court’s exercise of judicial power over the said case, and rendered any orders or judgments rendered therein a nullity.

SC DOCTRINES: The first stage of an action for judicial partition and/or accounting is

concerned with the determination of whether or not a co-ownership in fact exists and a partition is proper, that is, it is not otherwise legally proscribed and may be made by voluntary agreement of all the parties interested in the property. This phase may end in a declaration that plaintiff is not entitled to the desired partition either because a co-ownership does not exist or a partition is legally prohibited. It may also end, on the other hand, with an adjudgment that a co-ownership does in truth exist, that partition is proper in the premises, and that an accounting of rents and profits received by the defendant from the real estate in question is in order. In the latter case, "the parties may, if they are able to agree, make partition among themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed upon by all the parties." In either case, whether the action is dismissed or partition and/or accounting is decreed, the order is a final one and may be appealed by any party aggrieved thereby.

The second stage commences when the parties are unable to agree upon the partition ordered by the court. In that event, partition shall be effected for the parties by the court with the assistance of not more than three (3) commissioners. This second phase may also deal with the rendition of the accounting itself and its approval by the Court after the parties have been accorded the opportunity to be heard thereon, and an award for the recovery by the party or parties thereto entitled of their just shares in the rents and profits of the real estate in question.

Balo v CA GR 129704 (Sep 30, 2005) A complaint for Judicial Partition of Real Properties and Accounting

with Damages was filed by PR Josefina Garrido against petitioners (the Balos) before the RTC, alleging that she and petitioners are the co-owners of undivided parcels of land located at Mayorga, Leyte. According to her, these lands were originally owned by the spouses Eugenio Balo, Sr. and Ma. Pasagui-Balo, who, at the time of the filing of the complaint, were already deceased. The Balo spouses

were survived by their two (2) children, Ulpiano, Sr. and Maximino, the latter likewise deceased. PR Josefina Garrido is the daughter of Maximino Balo and Salvacion Sabulao. Petitioner Ulpiano Balo is the son of Eugenio Balo, Sr., while the other petitioners, the children of Ulpiano, are Eugenio’s grandchildren.

PR Josefina Garrido further alleged that immediately upon the death of her grandfather, Eugenio Sr., the petitioners took possession of the said real properties without her knowledge and consent. The petitioners being her uncle and cousins, private respondent earnestly requested them that they come up with a fair and equal partition of the properties left by her grandparents. The petitioners having outrightly refused her proposal, PR filed the complaint.

Petitioners filed a MTD and averred several grounds, one of which is predicated on the fact that plaintiff, though she claims to be a daughter of Maximino who died sometime in 1946, failed to allege whether or not she is a legitimate child. Plaintiff’s failure to allege legitimacy is fatal considering the provision of Article 992 of the Civil Code. To allow Plaintiff to inherit from the estate of the spouses Eugenio and Maria Balo in representation of her father Maximino Balo would be to permit intestate succession by an illegitimate child from the legitimate parent of his father, assuming that she is the child of Maximino Balo.

RTC denied the motion to dismiss for lack of merit. Petitioners filed a MR which the RTC also denied. Petitioners filed a Petition for Certiorari before the CA which also denied the petition and accordingly dismissed the same.

ISSUE: W/N partition is proper in this case? YES

SC: The allegations of PR Josefina Garrido show substantial compliance with the formal and substantial requirements of a Complaint for Partition as required under Sec. 1, Rue 69.

The doctrine must be considered well settled, that: 1) a natural child having a right to compel acknowledgment, but who has not been in fact legally acknowledged, may maintain partition (proceedings for the division of the inheritance against his coheirs; 2) and the same person may intervene in proceedings for the distribution of the estate of his deceased natural father, or mother. In neither of these situations has it been thought necessary for the plaintiff to show a prior decree compelling acknowledgment. The obvious

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reason is that in partition suits and distribution proceedings the other persons who might take by inheritance are before the court; and the declaration of heirship is appropriate to such proceedings.

Heirs of Teves v CA and Heirs of It-It GR 109963 (Oct 13, 1999) Marcelina Cimafranca and Joaquin Teves had nine children,

namely Teotimo, Felicia, Pedro, Andres, Asuncion, Gorgonio, Cresenciano, Arcadia and Maria.

After Marcelina Cimafranca and Joaquin Teves died, intestate and without debts, in 1943 and 1953, respectively, their children executed extrajudicial settlements purporting to adjudicate unto themselves the ownership over two parcels of land belonging to their deceased parents and to alienate their shares thereto in favor of their sister Asuncion Teves. The validity of these settlements executed pursuant to Sec. 1, Rule 74 is the primary issue in this case.

Petitioners Ricardo and Arcadia Teves filed a complaint with the RTC for the partition and reconveyance of two parcels of land against the heirs of Asuncion Teves. They alleged that defendants, w/o any justifiable reason, refused to partition the said parcels of land and to convey to plaintiffs their rightful shares. The present controversy involves only Marcelina Cimafranca’s ¼ share in the land designated as Lot 769-A.

Marcelina and Joaquin’s children, Teotimo, Felicia, Pedro, Andres, Asuncion, Gorgonio, Cresenciano and Arcadia executed a document entitled “Settlement of Estate and Sale” adjudicating unto themselves, in equal shares, Lot 769-A and conveying their shares, interests, and participations over the same in favor of Asuncion for the consideration of P425. A similar deed denominated "Extrajudicial Settlement and Sale" was signed by Maria Teves. Under such deed, Maria conveys her own share over Lot 769-A in favor of Asuncion Teves for the consideration of P80.00. The two settlements were denounced by the plaintiffs as spurious.

The other property in dispute is Lot 6409, which was registered in the name of Joaquin Teves and his two sisters, Matea and Candida Teves. However, Matea and Candida died without issue, causing the entire property to pass to Joaquin Teves.

On December 14, 1971, Lot 6409 was adjudicated and divided in equal shares in a "Deed of Extrajudicial Settlement & Sale" executed by Joaquin Teves' children — Asuncion, Teotimo, Felisia, Gorgonio, Arcadia and Maria Teves. In the same deed, the

shares of these same heirs in Lot 6409 were sold to Asuncion Teves for P100.00. Asuncion Teves took possession of the land and acquired title over the same. After her death in 1981, her children, defendants-appellees It-it herein, extrajudicially settled Asuncion Teves' property, adjudicating unto themselves Lot 6409.

On July 20, 1983 a new TCT was issued in the names of Asuncion Teves' children, namely Elisa, Susana, Norberto, Isaac, Jaime, Felicitas, Teresita, Corazon, and Danilo, all surnamed It-it.

On July 2, 1984, the It-its sold Lot 6409 to defendants-appellees Lucrecio Baylosis, Sr. and Pacita Nocete-Baylosis for P20K and a TCT was issued in the name of the Baylosis couple.

Plaintiffs claim that the Deed of Extrajudicial Settlement & Sale covering Lot 6409 is also spurious. Aside from these defects which would make said document null and void, they allege that Arcadia Teves who is one of the living sisters of the mother of the principal defendants although confirming the authenticity of her signature averred that in reality no consideration was ever given to her and that her impression of the said document was that she was only giving her consent to sell her share of the land. Plaintiffs likewise contend that as regards the share of Ricardo Teves, son of Crescenciano Teves who predeceased Joaquin and Marcelina, it was not at all affected in that extrajudicial settlement and sale since neither Crescenciano Teves nor his son Ricardo Teves participated in its execution.

Defendants maintained that the assailed documents were executed with all the formalities required by law and are therefore binding and legally effective as bases for acquiring ownership or legal title over the lots in question. Furthermore, it is contended that plaintiffs have slept on their rights and should now be deemed to have abandoned such rights.

The trial court ruled in favor of defendants and rendered judgment dismissing the complaint with costs against plaintiffs. As regards Lot 6409, the court declared that the Extrajudicial Settlement and Sale executed by the heirs of Joaquin Teves and Marcelina Cimafranca was duly executed with all the formalities required by law, thus, validly conveying Lot 6409 in favor of Asuncion Teves. Moreover, it stated that, even granting the truth of the imputed infirmities in the deed, the right of plaintiffs to bring an action for partition and reconveyance was already barred by prescription. An action for the annulment of a partition must be brought within four


years from the discovery of the fraud, while an action for the reconveyance of land based upon an implied or constructive trust prescribes after ten years from the registration of the deed or from the issuance of the title.

Moreover, the trial court held that the extrajudicial settlements over both Lots 6409 and 769, having been prepared and acknowledged before a notary public, are public documents, vested with public interest, the sanctity of which deserves to be upheld unless overwhelmed by clear and convincing evidence. The evidence presented by the plaintiffs to support their charges of forgery was considered by the court insufficient to rebut the legal presumption of validity accorded to such documents.

CA upheld the trial court's decision affirming the validity of the extrajudicial statements, with a slight modification.

ISSUE: W/N the extrajudicial settlements in dispute were valid and legally binding against plaintiffs/petitioners? YES

SC: The extrajudicial settlements executed by the heirs of Joaquin Teves and Marcelina Cimafranca are legally valid and binding. The extrajudicial settlement of a decedent's estate is authorized by section 1 of Rule 74 of the Rules of Court.

The Deed of Extrajudicial Settlement & Sale covering Lot 6409 purports to divide Joaquin Teves' estate among only six of his heirs, namely Asuncion, Teotimo, Felisia, Gorgonio, Arcadia and Maria Teves. It does not mention nor bear the signatures of either Pedro or Cresenciano Teves although they are both intestate heirs of Joaquin Teves and as such, are entitled to a proportionate share of the decedent's estate. Contrary to the ruling of the CA, the fact that Cresenciano predeceased Joaquin Teves does not mean that his heirs lose the right to share in the partition of the property for this is a proper case for representation, wherein the representative is raised to the place and degree of the person represented and acquires the rights which the latter would have if he were living.

However, notwithstanding their non-inclusion in the settlement, the action which Pedro and Cresenciano might have brought for the reconveyance of their shares in the property has already prescribed. An action for reconveyance based upon an implied trust pursuant to article 1456 of the Civil Code prescribes in ten years from the registration of the deed or from the issuance of the title. Asuncion Teves acquired title over Lot

6409 in 1972, but the present case was only filed by plaintiffs-appellants in 1984, which is more than 10 years from the issuance of title.

The division of Lot 769-A, on the other hand, was embodied in two deeds. The first extrajudicial settlement was entered into by Teotimo, Felicia, Pedro, Gorgonio, Arcadia and Asuncion Teves in 1956, while the second deed was executed in 1959 by Maria Teves. Cresenciano was not a signatory to either settlement. However, in contrast to the extrajudicial settlement covering Lot 6409, the two extrajudicial settlements involving Lot 769-A do not purport to exclude Cresenciano from his participation in Lot 769-A or to cede his share therein in favor of Asuncion. The settlement clearly adjudicated the property in equal shares in favor of the eight heirs of Marcelina Cimafranca. Moreover, the deeds were intended to convey to Asuncion Teves only the shares of those heirs who affixed their signatures in the two documents.

It has even been admitted by both parties that Ricardo Teves is in possession of an undetermined portion of Lot 769-A and the It-its do not claim ownership over his share in the land. Thus, contrary to the appellate court's ruling, there is no basis for an action for reconveyance of Ricardo Teves' share since, in the first place, there has been no conveyance. Ricardo Teves is entitled to the ownership and possession of one-eighth of Lot 769-A. Neither does Ricardo Teves have a right to demand partition of Lot 769-A because the two extajudicial settlements have already effectively partitioned such property.

Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction. The extrajudicial settlements executed in 1956 and 1959 adjudicated Lot 769-A in equal shares unto the eight heirs of Marcelina Cimafranca. Such a partition, which was legally made, confers upon each heir the exclusive ownership of the property adjudicated to him.

Although Cresenciano, Ricardo's predecessor-in-interest, was not a signatory to the extrajudicial settlements, the partition of Lot 769-A among the heirs was made in accordance with their intestate shares under the law. An extrajudicial settlement is a contract and it is a well-entrenched doctrine that the law does not relieve a party from the effects of a contract, entered into with all the required formalities and with full awareness of what he was doing, simply because the contract turned out to be a foolish or unwise investment. Therefore, although plaintiffs may regret having alienated their

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hereditary shares in favor of their sister Asuncion, they must now be considered bound by their own contractual acts.

Forcible Entry and Unlawful Detainer

Valdes v CA GR 132426 Plaintiff spouses Valdez are the registered owners of a piece of

residential lot located at Carolina Executive village in Antipolo, Rizal. In their complaint for Unlawful Detainer, they alleged that defendant spouses Fabella, without any color of title whatsoever, occupied the said lot by buildering their house in their lot thereby depriving plaintiffs the rightful possession thereof.

Plaintiff spouses also alleged that they’ve orally asked defendant spouses to peacefully surrender the premises to them, but the latter stubbornly refused to vacate the lot they unlawfully occupied; that despite plaintiffs’ referral of the matter to the Barangay, defendants still refused to heed the plea of the former to surrender the lot peacefully.

Defendant spouses contended that the complaint failed to state that petitioners had prior physical possession of the property or that they were their lessors. In the alternative, defendant spouses claimed ownership over the land OTG that they had been in open, continuous, and adverse possession thereof for more than 30 years, as attested by an ocular inspection report from the DENR.

MTC rendered a decision in favor of the plaintiff spouses/petitioners ordering defendant spouses/respondents to vacate the property and to the pay rent for the use and occupation of the same plus attys fees.

Respondents appealed the MTC’s decision to the RTC. RTC affirmed the decision of the MTC.

Respondents filed a petition for review with the CA questioning the decision of the RTC. It held that petitioners failed to make a case for unlawful detainer because they failed to show that they had given the private respondents the right to occupy the premises or that they had tolerated private respondents’ possession of the same, which is a requirement in unlawful detainer cases. It added that the allegations in petitioners’ complaint lack jurisdictional elements for forcible entry which requires an allegation of prior material possession. Thus, it held that the MTC before which the action for ejectment was filed had no jurisdiction over the case.

Petitioners filed a MR which was denied.

ISSUE: W/N the allegations of the complaint clearly make out a case for unlawful detainer? NO

SC: Under existing law and jurisprudence, there are three kinds of actions available to recover possession of real property: (a) accion interdictal; (b) accion publiciana; and (c) accion reivindicatoria.

Accion interdictal comprises two distinct causes of action, namely, forcible entry (detentacion) and unlawful detainer (desahuico). In forcible entry, one is deprived of physical possession of real property by means of force, intimidation, strategy, threats, or stealth whereas in unlawful detainer, one illegally withholds possession after the expiration or termination of his right to hold possession under any contract, express or implied.

Accion publiciana is the plenary action to recover the right of possession which should be brought in the proper RTC when dispossession has lasted for more than one year. It is an ordinary civil proceeding to determine the better right of possession of realty independently of title. In other words, if at the time of the filing of the complaint more than one year had elapsed since defendant had turned plaintiff out of possession or defendant’s possession had become illegal, the action will be, not one of the forcible entry or illegal detainer, but an accion publiciana.


Accion reivindicatoria is an action to recover ownership also brought in the proper regional trial court in an ordinary civil proceeding.

Forcible Entry (detentacion) Unlawful Detainer (desahuico)- One is deprived of physical possession of real property by means of force, intimidation, strategy, threats, or stealth;- Possession of the defendant is illegal from the beginning, and that the issue is which party has prior de facto possession;- Jurisdiction lies with the proper MTC or MeTC;- Such action must be brought within one (1) year from the date of actual entry / stealth - from discovery.

- One illegally withholds possession after the expiration or termination of his right to hold possession under any contract, express or implied;- Possession of the defendant is originally legal but became illegal due to the expiration or termination of the right to possess;- Jurisdiction lies with the proper MTC or MeTC

- Such action must be brought rom the date of last demand.

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.

Indeed, to vest the court jurisdiction to effect the ejectment of an occupant, it is necessary that the complaint should embody such a statement of facts as brings the party clearly within the class of cases for which the statutes provide a remedy, as these proceedings are summary in nature. The complaint must show enough on its face the court jurisdiction without resort to parol testimony.The jurisdictional facts must appear on the face of the complaint. When the complaint fails to aver facts constitutive of forcible entry or unlawful detainer, as where it does not state how entry was affected or how and when dispossession started, the remedy should either be an accion publiciana or an accion reivindicatoria in the proper regional trial court.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 MTC had no jurisdiction over the case.

Co v Militar 41 S 455 Petitioner Jacinto Co claims to be the owner of a parcel of land

measuring 396 sqm. covered by a TCT. The land was formerly owned by a certain Rolando Dalida.

Dalida mortgaged the land to petitioner Co to secure payment of a loan. After Dalidad defaulted in the payment of his obligation, petitioner Co caused the foreclosure of the mortgage. Subsequently, petitioner Co acquired the land at a foreclosure sale.

Petitioner Co filed a complaint for unlawful detainer before the MeTC against respondents Militar, who were in possession of the land. Co alleged that he is the registered owner of the land; that as owner, he declared the same for tax purposes and has been up to date in the payment of RPT; and that respondents’ occupancy of the property was by his mere tolerance but their continued stay became unlawful after he demanded that they vacate the premises.

Respondents claimed that they are the owners of 198 square meters each of the disputed land, having bought the same from Burgos L. Pangilinan and Reynaldo Pangilinan who were the owners-developers of a residential subdivision project called "Immaculate Conception Village".

Respondent Militar further claimed that his occupancy of the property could not be by tolerance of petitioner for the following reasons: 1) he constructed his house way back in June 1966, long before petitioner acquired title thereto on October 10, 1983; 2) he bought the 1/2 portion of the property, consisting of 198 square meters from B.L. Pangilinan & Sons, Inc. and paid for the same in full 10 years before petitioner claimed ownership of said property. He also assailed the jurisdiction of the MeTC, claiming that it had no jurisdiction over the case as the proper action should have been an accion reinvidicatoria filed before the RTC. Respondent Sones also alleged similar reasons.

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MeTC rendered a decision in favor of petitioner Co. Respondents appealed the decision to the RTC, which reversed and set aside the same. Petitioner filed a MR which was denied by the CA.

ISSUE: Who between petitioner and respondents has a better right to possess the subject property? Petitioner Co!

SC: Well-settled is the rule that the only issue for resolution in an unlawful detainer case is physical or material possession of the property involved, independent of any claim of ownership by any of the party litigants. Moreover, an ejectment suit is summary in nature and is not susceptible to circumvention by the simple expedient of asserting ownership over the property.

In forcible entry and unlawful detainer cases, even if the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the lower courts and the Court of Appeals, nonetheless, have the undoubted competence to provisionally resolve the issue of ownership for the sole purpose of determining the issue of possession.

In the instant case, the evidence showed that as between the parties, it is the petitioner who has a Torrens Title to the property. Respondents merely showed their unregistered deeds of sale in support of their claims. The Metropolitan Trial Court correctly relied on the transfer certificate of title in the name of petitioner. It is settled that a Torrens Certificate of title is indefeasible and binding upon the whole world unless and until it has been nullified by a court of competent jurisdiction. Under existing statutory and decisional law, the power to pass upon the validity of such certificate of title at the first instance properly belongs to the RTC in a direct proceeding for cancellation of title.As the registered owner, petitioner had a right to the possession of the property, which is one of the attributes of his ownership. Respondents’ argument that petitioner is not an innocent purchaser for value and was guilty of bad faith in having the subject land registered in his name is a collateral attack on the title of petitioner, which is not allowed. A certificate of title cannot be subject to a collateral attack and can be altered, modified or cancelled only in a direct proceeding in accordance with law.

Unida v Urban GR 155432

Respondent heirs of Ambrocio Urban, represented by Lucio Cabaddu, filed a complaint for unlawful detainer against petitioners. Respondent (Plaintiff) who claims to be the owner of the property which had been subdivided into 3 lots alleged that about ten (10) yrs ago, without the knowledge or consent of the owners, petitioners (defendants), without any legal right whatsoever, entered the premises of the subject land and cultivated the same as their own, not giving any share to the owners. And that because the location of the land was infested by the NPA at the time of the intrusion of the defendants, the owners did nothing but to tolerate their stay and cultivation of the subject property.

Petitioners (defendants) denied, among other things, having any knowledge or information sufficient to form a belief regarding the authority of Lucio Cabaddu to represent the plaintiff and concluded that he has no authority/personality to represent the alleged heirs. They have also asserted that petitioners Crispina Unida and Nancy Unida has possessed three (3) of the subject lots both in the concept of owner, personally and through their predecessors, since time immemorial.

MTC resolved the case in favor of respondent (plaintiffs) and against petitioners (defendants).

RTC reversed the MTC Decision, it holding that although Lucio Cabaddu was given a SPA subsequent to the filing of the complaint, the SPA did not contain a specific authorization for him to institute the complaint.

RTC also held that since the complaint itself asserted that petitioners’ entry into the property was unlawful from the very beginning, respondents’ alleged toleration thereof cannot be considered as toleration in contemplation of law in UD cases, hence, the action for UD was improper. Neither was FE the proper remedy, as the entry of petitioners was not by means of FISTS. The RTC suggested that the remedy of plaintiffs/respondents was to file an accion publiciana or reivindicatoria before the proper RTC.

CA reversed the decision of the RTC and reinstated that of the MTC and held that “an allegation that the defendant is unlawfully withholding possession from the plaintiff is deemed sufficient for one alleging that the withholding of possession or the refusal to vacate is unlawful, without necessarily employing the terminology of the law.”


ISSUE: W/N the allegations of the complaint clearly make out a case for unlawful detainer? NO

SC: To justify an action for unlawful detainer, the permission or tolerance must have been present at the beginning of the possession. Otherwise, if the possession was unlawful from the start, an action for unlawful detainer would be an improper remedy.

As correctly held then by the RTC, the case cannot be considered as an unlawful detainer case, the "tolerance" claimed by respondents not being that contemplated by law in unlawful detainer cases; neither can the case be considered as one for forcible entry because the entry of petitioners was not alleged to have been by means of force, intimidation, threats, stealth or strategy.

Since the complaint did not satisfy the jurisdictional requirement of a valid cause for unlawful detainer or forcible entry, the MTC had no jurisdiction over the case. It is in this light that this Court finds that the RTC correctly found that the MTC had no jurisdiction over the complaint.

Parenthetically, it was error for the RTC to find the complaint dismissible also on the ground that Lucio Cabaddu was not the real party in interest. That paragraph 1 of the complaint alleged that "plaintiff [is] of legal age, married to Leticia Urban . . . is the Authorized representative of the heirs of Ambrocio Urban" did not modify the name of the plaintiff appearing in the title of the complaint. In other words, that the plaintiff appearing in the title was worded as "Heirs of Ambrocio Urban represented by Lucio Cabaddu" complied with Section 3 of Rule 3 of the Rules of Court.

A final note: Since the RTC found that the MTC had no jurisdiction over the case, it should have followed the mandate of Sec. 8, Rule 40, which provides:

Sec. 8. Appeal from orders dismissing case without trial; lack of jurisdiction. – If an appeal is taken from an order of the lower court dismissing the case without a trial on the merits, the Regional Trial Court may affirm or reverse it, as the case may be. In case of affirmance and the ground of dismissal is lack of jurisdiction over the subject matter, the Regional Trial Court, if it has jurisdiction thereover, shall try the case on the merits as if the case was

originally filed with it. In case of reversal, the case shall be remanded for further proceedings.

If the case was tried on the merits by the lower court without jurisdiction over the subject matter, the Regional Trial Court on appeal shall not dismiss the case if it has original jurisdiction thereof, but shall decide the case in accordance with the preceding section, without prejudice to the admission of amended pleadings and additional evidence in the interest of justice.

Larano v. Sps. Calendacion GR 158231 Petitioner owns a parcel of Riceland in Laguna covered by a TCT.

Petitioner Larano and Spouses Calendacion executed a Contract to Sell whereby the spouses agreed to buy a 50,000 sqm. portion of petitioner’s Riceland for P5M, with P500K as down-payment and the balance payable in nine (9) installments of P500K each until Sept 2001.

Pending full payment of the purchase, possession of the riceland was transferred to respondent spouses under the condition that they shall account for and deliver the harvest from said riceland to petitioner. Respondents, however, failed to pay the installments and to account for and deliver the harvest from said riceland.

On Mar 7, 2000, petitioners sent respondent spouses a demand letter to vacate the riceland within 10 days from receipt thereof, but as her demand went unheeded, she filed on April 5, 2000, a complaint against respondent spouses for unlawful detainer before the MTC praying that respondent spouses be directed 1) to vacate the Riceland and 2) to pay P400K per year from Sept 1998 until they vacate, as reasonable compensation for the use of the property, P120K as attys fees, and P50K as litigation expenses.

Respondents admit the execution of the Contract to Sell but deny that it contains all the agreements of the parties. They allege that petitioner has no cause of action against them because the 3-year period has not yet lapsed AND that the MTC has no jurisdiction over the case because the complaint failed to allege that a demand to pay and to vacate the Riceland was made upon them.

MTC ordered defendants (respondents) to vacate the premises and pay petitioner the amounts prayed for.

Respondent spouses filed an appeal with the RTC affirming the trial court’s order with slight modifications with respect to the amount.

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Respondents filed a petition for review with the CA. For failure to file her comment despite the CA resolution which required her to do so, petitioner was deemed to have waived her right to file comment to the petition.

CA set aside the decision of the RTC and dismissed the complaint for unlawful detainer. The CA nullified the proceedings before the MTC for want of jurisdiction. It held that the issues in the case - whether or not there was a violation of the Contract to Sell, whether or not such violation gives the petitioner the right to terminate the contract and consequently, the right to recover possession and the value of the harvest from the riceland - extend beyond those commonly involved in unlawful detainer suits where only the issue of possession is involved; that the case is not a mere detainer suit but one incapable of pecuniary estimation, placing it under the exclusive original jurisdiction of the RTC, not the MTC.

Petitioner contends that the CA should have dismissed outright the petition for review filed before it since it contains no verification as required by the Rules; and that the CA, in finding that the complaint before the MTC was not one for unlawful detainer but for specific performance, did not limit itself to the allegations in the complaint but resorted to unrestrained references, deductions and/or conjectures, unduly influenced by the allegations in the answer.

Respondents, on the other hand, contend that verification is just a formal requirement; that petitioner waived her right to question the defect when she failed to submit her comment; that the CA correctly pointed out that the present case involves one that is incapable of pecuniary estimation since the crux of the matter is the rights of the parties based on the Contract to Sell.

ISSUE: W/N the complaint is one for unlawful detainer? NO

SC: Settled is the rule that jurisdiction in ejectment cases is determined by the allegations pleaded in the complaint. It cannot be made to depend upon the defenses set up in the answer or pleadings filed by the defendant. Neither can it be made to depend on the exclusive characterization of the case by one of the parties. The test for determining the sufficiency of those allegations is whether, admitting the facts alleged, the court can render a valid judgment in accordance with the prayer of the plaintiff.

In unlawful detainer, the possession was originally lawful but became unlawful by the expiration or termination of the right to possess; hence, the

issue of rightful possession is decisive for, in such action, the defendant is in actual possession and the plaintiff’s cause of action is the termination of the defendant’s right to continue in possession.

Applied to the present case, petitioner, as vendor, must comply with two requisites for the purpose of bringing an ejectment suit: (a) there must be failure to pay the installment due or comply with the conditions of the Contract to Sell; and (b) there must be demand both to pay or to comply and vacate within the periods specified in Section 2 of Rule 70, namely: 15 days in case of land and 5 days in case of buildings. The first requisite refers to the existence of the cause of action for unlawful detainer, while the second refers to the jurisdiction requirement of demand in order that said cause of action may be pursued.

Both demands – to pay installment due or adhere to the terms of the Contract to Sell and to vacate are necessary to make the vendee deforciant in order that an ejectment suit may be filed. It is the vendor's demand for the vendee to vacate the premises and the vendee's refusal to do so which makes unlawful the withholding of the possession. Such refusal violates the vendor's right of possession giving rise to an action for unlawful detainer. However, prior to the institution of such action, a demand from the vendor to pay the installment due or comply with the conditions of the Contract to Sell AND to vacate the premises is required under the aforequoted rule.

It is clear from the foregoing that the allegations in the Complaint failed to constitute a case of unlawful detainer. What is clear is that in the Complaint, petitioner alleged that respondents had violated the terms of the Contract to Sell. However, the Complaint failed to state that petitioner made demands upon respondents to comply with the conditions of the contract – the payment of the installments and the accounting and delivery of the harvests from the subject riceland. The 10-day period granted respondents to vacate even fell short of the 15-day period mandated by law. When the complaint does not satisfy the jurisdictional requirements of a valid cause for unlawful detainer, the MTC does not have jurisdiction to hear the case.


Contempt

Montenegro v Montenegro GR 156829 On June 14, 1994, respondent Ma. Teresa V. Lizares-Montenegro,

for herself and as mother and guardian of her two minor children Antonio Amelo and Ana Maria Pia Isabel, filed with the trial court below a complaint for support against her husband, herein petitioner Ramon D. Montenegro.

Four years after the filing of the complaint, petitioner and respondent Teresa executed a compromise agreement which was submitted to the trial court for approval. The parties did not appeal from the Decision; hence, it became final and executory.

Since petitioner failed to comply with his obligations under the compromise agreement, respondent Teresa filed a motion for the execution of the judgment. The trial court granted the motion and issued a writ of execution on 15 February 1999.

A second writ of execution and a notice of garnishment was issued by the trial court and and a notice of garnishment issued on another date were returned unsatisfied.

In several conferences called by the trial court, petitioner admitted his failure to comply with his obligations under the compromise agreement but alleged that he was no longer in a position to do so as he was already insolvent.

Respondent Teresa manifested that she would file a motion for examination of petitioner as judgment obligor. The trial court gave her 30 days within which to file the appropriate motion and informed petitioner that he would have 30 days to file a comment or reply to the motion.

On 14 March 2002, respondent Teresa filed a motion to examine petitioner as judgment obligor under Sections 36 and 38 of Rule 39 of the RoC. She also alleged that there is an urgency for the examination to be conducted at the earliest time since petitioner was about to migrate to Canada.

RTC granted the motion for examination of petitioner as judgment obligor and set his examination on 22 March 2002.

That same day, petitioner filed with the court a Manifestation alleging that the grant of the motion for examination iwas premature because he still would have 30 days from receipt of the motion, or until April 14, 2002, within which to file a comment or opposition thereto as agreed upon during the conference on 6 March 2002.

Thus, on 22 March 2002 (date set for petitioner’s examination), neither petitioner nor his counsel appeared for the scheduled hearing. The trial court issued an order re-scheduling the hearing to 10 April 2002 and requiring the petitioner to explain why he should not be held in contempt of court for disobeying court’s order.

On 26 March 2002, petitioner filed a Compliance with Motion to Re-schedule Proceedings. He explained that he did not attend the 22 March 2002 hearing because he was under the impression that he still had 30 days from the filing of the motion to examine him as judgment obligor within which to respond to the motion; besides, his counsel was not available due to previously scheduled hearings.

On 5 April 2002, petitioner filed a manifestation reiterating that he would be unable to attend the 10 April 2002 hearing because he was already in Canada. Counsel for petitioner likewise manifested that he would also be unavailable on the said date because he would be in Manila to attend to his other cases.

On 17 June 2002, the trial court issued an Order directing the petitioner to show cause why he should not held in contempt of court for failure to appear on the 10 April 2002 at the hearing for his examination as judgment obligor.

On 28 June 2002, petitioner alleged that he was unable to attend the 10 April 2002 hearing because he was in Canada and had no intention to abscond from his obligation.

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On 13 June 2002, the trial court issued an Order setting the case for the hearing for examination of the petitioner on 3 July 2002. A subpoena was issued against the petitioner and served at his address of record. Respondent Teresa also caused the service of the subpoena at his residence in San Antonio Village, Makati where petitioner is allegedly residing.

The 3 July 2002 hearing did not push through as the petitioner filed a Motion to Quash Subpoena Ad Testificandum on 28 June 2002. In the motion, petitioner admitted that 8051 Estrella Avenue, San Antonio Village, Makati City, is his present address but alleged that Makati City is more than 100 kilometers away from Bacolod City; thus, he may not be compelled by subpoena to attend the 3 July 2002 hearing in Bacolod City. In this motion, petitioner did not allege that he was still in Canada.

The trial court denied the Motion to Quash Subpoena Ad Testificandum, but re-scheduled the hearing to 23 October 2002.

On 22 October 2002, the day before the scheduled hearing, petitioner filed a manifestation informing the trial court that he was still in Canada and would not be able to attend the 23 October 2002 hearing; however, he would be in Manila on the first week of December 2002. He moved that the hearing be re-scheduled on 9 December 2002. The manifestation, however, did not contain a notice of hearing.

On 23 October 2002, petitioner did not appear at the scheduled hearing, prompting the trial court to issue an order citing him in contempt of court. The trial court declared petitioner in contempt of court under Section 38 of Rule 39 of the Rules of Court and imposed on him the penalty of imprisonment for three months and ordered him to pay a fine of P20,000.

Montenegro then filed a petition for review on certiorari under Rule 45 seeking the reversal of the RTC holding him guilty of indirect contempt for his repeated failure to appear at the scheduled hearings for his examination as judgment obligor.

ISSUE: W/N the trial court erred in holding the petitioner guilty of indirect contempt for willfully disobeying the orders of the trial court requiring him to appear for purposes of examination as a judgment obligor at in the hearings scheduled on 22 March 2002, 10 April 2002, and 23 October 2002? NO

SC: The totality of petitioner’s acts clearly indicated a deliberate, and unjustified refusal to be examined as a judgment obligor at the time the

examination was scheduled for hearing by the trial court. Such acts tended to degrade the authority and respect for court processes and impaired the judiciary’s duty to deliver and administer justice. Petitioner tried to impose his will on the trial court.

Contempt of court involves the doing of an act, or the failure to do an act, in such a manner as to create an affront to the court and the sovereign dignity with which it is clothed. It is defined as "disobedience to the court by acting in opposition to its authority, justice and dignity. The power to punish contempt is inherent in all courts, because it is essential to the preservation of order in judicial proceedings, and to the enforcement of judgments, orders and mandates of the courts; and, consequently, to the due administration of justice.

The Rules of Court penalizes two types of contempt, namely, direct contempt and indirect contempt. Direct contempt is committed in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, and includes disrespect toward the court, offensive personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so. On the other hand, Section 3 of Rule 71 of the Rules of Court enumerates particular acts which constitute indirect contempt.

Indirect contempt may either be initiated (1) motu proprio by the court by issuing an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt or (2) by the filing of a verified petition, complying with the requirements for filing initiatory pleadings. In the present case, the trial court initiated the proceedings for indirect contempt by issuing two orders directing the petitioner to show cause why he should not be punished for indirect contempt.

In the present case, the contemptuous act was the petitioner’s refusal to attend a hearing for his examination as judgment obligor, upon motion by the respondent Teresa. It must be pointed out that the purpose of Section 36 of Rule 39 is to provide the judgment obligee a remedy in case where the judgment obligor continues to fail to comply with its obligation under the judgment. Petitioner’s refusal to be examined, without justifiable reason, constituted indirect contempt which is civil in nature. Petitioner’s deliberate willfulness and even malice in disobeying the orders of the trial court are clearly shown in the pleadings he himself had filed before the trial court.


In the present case, the nature of the contemptuous acts committed are civil in nature. Section 7 of Rule 71 of the Rules of Court provides for indefinite incarceration in civil contempt proceedings to compel a party to comply with the order of the court. This may be resorted to where the attendant circumstances are such that the non-compliance with the court order is an utter disregard of the authority of the court which has then no other recourse but to use its coercive power. In the present case, however, the act which the trial court ordered the petitioner to do has already been performed, albeit belatedly and not without delay for an unreasonable length of time. As such, the penalty of imprisonment may no longer be imposed despite the fact that its non-implementation was due to petitioner’s absence in the Philippines.

Ang v Castro GR 66371 (May 15, 1985) Petitioner, through the Office of the Presidential Assistant on Legal

Affairs, lodged with this SC an administrative complaint against respondent judge Casreo for ignorance of the law, gross inexcusable negligence, incompetence, manifest partiality, grave abuse of discretion, grave misconduct, rendering unjust decision in a civil case and dereliction of duties in not resolving his motion for reconsideration of the adverse decision in said civil case.

Upon learning of the administrative case filed against him by petitioner, respondent judge ordered petitioner to appear before him on December 29, 1983 at 8:30 in the morning, and to show cause why he should not be punished for contempt of court, for malicious, insolent, inexcusable disrespect and contemptuous attitude towards the court and towards him.

On January 9, 1984, respondent judge found petitioner guilty of contempt of court, sentenced him to suffer five (5) days imprisonment and ordered his arrest for his failure, despite notice, to appear on the scheduled hearing of the contempt charge against him.

Petitioner filed his notice of appeal from the judgment of conviction in the contempt charge but the same was denied by the respondent judge reasoning that the pronouncement of guilt in a direct contempt is not appealable.

Respondent judge instituted before the Office of the City Fiscal of Quezon City a criminal complaint for libel against herein petitioner for using malicious, insolent and contemptuous language against him in his letter-complaint filed before the SC.

Petitioner now files a petition for certiorari, prohibition and mandamus and asks the Court: (1) to order respondent judge

Castro to forward the records of the civil case to the IAC; (2) to enjoin him from enforcing his order for the arrest of petitioner; (3) to restrain respondent Assistant Fiscal Narciso Atienza of Quezon City from conducting preliminary investigation on the libel charge filed against him by respondent judge; and, (4) to prohibit respondent Judge Jose P. Arro of the Regional Trial Court of Rizal from proceeding and or conducting a hearing on the criminal complaint for libel against petitioner.

On 20 Feb 1984, the Court issued a TRO enjoining respondent judge from carrying out the warrant of arrest and and the respondent fiscal from conducting the preliminary investigation for libel lodged by respondent judge against petitioner.

On 5 Mar 1984, the Court issued another TRO enjoining respondent Judge from proceeding and/or conducting hearing on the criminal complaint for libel.

Respondent Judge Castro, in his comment, argues that failure of petitioner to appear, despite notice, on the scheduled hearing of the contempt charge for the use of derogatory language in his two letters addressed to the Office of the Presidential Assistant on Legal Affairs and to this Court in an administrative complaint against him, constitutes direct contempt as the acts actually impeded, embarrassed and obstructed him in the administration of justice.

ISSUE: W/N the alleged imputations by petitioner in his letter addressed to the Office of the Presidential Assistant on Legal Affairs and to the SC against respondent judge constitutes direct contempt? NO

SC: The use of disrespectful or contemptuous language against a particular judge in pleadings presented in another court or proceeding is indirect, not direct, contempt as it is not tantamount to a misbehavior in the presence of or so near a court or judge as to interrupt the administration of justice. Stated differently, if the pleading containing derogatory, offensive or malicious statements is submitted in the same court or judge in which the proceedings are pending, it is direct contempt because it is equivalent to a misbehavior committed in the presence of or so near a court or judge as to interrupt the administration of justice. Petitioner's conduct if at all, constitutes indirect contempt and, if found guilty he may appeal pursuant to Section 10, Rule 71 of the Rules of Court.

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As regards the ancillary action for prohibition, the Court finds the petition meritorious considering that the basis of the libel case filed against petitioner before the respondent RTC was a communication addressed to the Chief Justice of the Supreme Court which was coursed through the Office of the Presidential Assistant on legal Affairs, complaining against respondent judge's ignorance of the law, gross inexcusable negligence, incompetence, disregard for the Supreme Court administrative order, grave misconduct, rendering an unjust decision and dereliction of duty. Considering the privileged character of petitioner's communication to the Chief Justice barring a prosecution for libel, it is proper that the injunction against respondent RTC, from proceeding with the hearing of Criminal Case No. Q-31587, be made permanent pursuant to the restraining order and established doctrine against the use of the strong arm of the law as an instrument of arbitrary and oppressive prosecution.

People v Godoy 243 S 64 (March 29, 1995) A complaint was filed by Judge Eustaquio Gascott of the RTC of

Palawan, as an incident arising from criminal cases under automatic review, to cite for indirect contempt Mauricio Reynoso Jr., a columnist, and Eva P. Ponce de Leon, publisher and chairman of the editorial board, respectively, of the Palawan Times. Judge Gascott’s complaint is based on an article written by respondent Reynoso, Jr. in his column, "On the Beat," and published in the July 20, 1994 issue of said newspaper which is of general circulation in Puerto Princesa City.

The complaint avers that the article tends to impede, obstruct, belittle, downgrade and degrade the administration of justice; that the article contains averments which are disrespectful, discourteous, insulting, offensive and derogatory; that it does not only cast aspersions on the integrity and honesty of complainant as a judge and on his ability to administer justice objectively and impartially, but is an imputation that he is biased and he prejudges the cases filed before him; and that the article is sub judice because it is still pending automatic review.

Respondent Mauricio Reynoso, Jr. contends in that his article does not intend to impede nor obstruct the administration of justice because the same was published after complainant had promulgated his decision in the case; that such publication will not affect or influence the review by the Supreme Court of the criminal case, considering that the Palawan Times is circulated only in the

City of Puerto Princess and some parts of Palawan; that the comments made therein were made in good faith and in the exercise of the freedom of expression and of the press; that while the article may contain unfavorable comments about complainant, it cannot be considered as having the tendency to degrade or impede the administration of justice; and that the complaint, which is for contempt of a judge of a regional trial court, was erroneously filed with the Supreme Court contrary to Section 4, Rule 71 of the rules of Court.

Respondent Eva P. Ponce de Leon asserts that the article is merely in reaction to the television interview given by complainant in the show, "Magandang Gabi Bayan," wherein the latter defended his decision in the case of "People vs. Godoy;" that the article is no longer sub judice as the same was published only after complainant had rendered his decision and had already lost jurisdiction over the case; that the article cannot be considered contemptuous and defamatory in the absence of a clear and present danger that it will tend directly or indirectly to impede, obstruct, or ridicule the administration of justice; that it constitutes a valid exercise of the constitutionally guaranteed freedom of the press; that a reading of the subject article in its entirety will show that the same does not constitute contempt but, at most, is merely a fair criticism which did not intend to malign nor place him in disrepute in the performance of his functions; and that respondent Ponce de Leon cannot be held liable for contempt because she did not have either actual knowledge of, or Personal connection with, the authorship or publication of the allegedly contemptuous article, since she had just returned from the United States when the same was published.

ISSUE/S:(1) W/N the specified statements complained of are contumacious in

nature? NO(2) W/N there can be contempt of court in case of post-litigation

statements or publications? YES(3) Which court has jurisdiction over a contempt committed against the

trial court while the case is pending on appeal?(4) W/N the availability of the power to punish for contempt precludes

the prosecution for libel for the same contemptuous act? NO(5) W/N the same contemptuous conduct of a member of the Bar can

be the subject of both a contempt proceeding and an administrative disciplinary action? YES


SC:(1) A reading of the subject article in its entirety will show that the same

does not constitute contempt, but at most, merely constitutes fair criticism. The news article was merely a report of rumors regarding the accused Danny Godoy. They are not presented as facts by respondent Mauricio Reynoso, Jr. In fact, he even goes to the extent of acknowledging that he himself does not know if the rumors are true or not. The subject article only reports what Atty. Telesforo Paredes, Jr. allegedly said. It was merely a reaction not so much to Judge Gascott's Decision, but to the public statements made by Complainant in the national television show "Magandang Gabi Bayan."

Snide remarks or sarcastic innuendoes do not necessarily assume that level of contumely, which is actionable under Rule 71 of the Rules of Court. Neither do we believe that the publication in question was intended to influence this Court for it could not conceivably be capable of doing so. The article has not transcended the legal limits for editorial comment and criticism. Besides, it has not been shown that there exists a substantive evil which is extremely serious and that the degree of its imminence is so exceptionally high as to warrant punishment for contempt and sufficient to disregard the constitutional guaranties of free speech and press.

(2) The termination of the case is not a guaranty of immunity from a contempt charge for publications or utterances which are defamatory or libelous, depending on the purpose and effects thereof. In other words, one may still be cited for contempt of court even after a case has ended, where such punitive action is necessary to protect the court and its dignity and to vindicate it from acts or conduct intended or calculated to degrade, ridicule or bring the court into disfavor and thereby erode or destroy public confidence in that court.

The liberty of the press means that anyone can publish anything he pleases, but he is liable for the abuse of this liberty. If he does this by scandalizing the courts of his country, he is liable to be punished for contempt. In other words, the abuse of the privilege consists principally in not telling the truth. There is a right to publish the truth,

but no right to publish falsehood to the injury of others with impunity. It, therefore, does not include the right to malign the courts, to libel and slander and utter the most flagrant and indecent calumnies about the court and its officers, nor to invade the sanctuaries of the temples. Such practices and such miscreants ought to be condemned, and the courts would deserve condemnation and abolition if they did not vigorously and fearlessly punish such offenders. Such practices are an abuse of the liberty of the press, and if the slander relates to the courts, it concerns the whole public and is consequently punishable summarily as a criminal contempt.

Generally, criticism of a court's rulings or decisions is not improper, and may not be restricted after a case has been finally disposed of and has ceased to be pending. So long as critics confine their criticisms to facts and base them on the decisions of the court, they commit no contempt no matter how severe the criticism may be; but when they pass beyond that line and charge that judicial conduct was influenced by improper, corrupt, or selfish motives, or that such conduct was affected by political prejudice or interest, the tendency is to create distrust and destroy the confidence of the people in their courts.

The Philippine rule, therefore, is that in case of a post-litigation newspaper publication, fair criticism of the court, its proceedings and its members, are allowed. However, there may be a contempt of court, even though the case has been terminated, if the publication is attended by either of these two circumstances: (1) where it tends to bring the court into disrespect or, in other words, to scandalize the court; or (2) where there is a clear and present danger that the administration of justice would be impeded.

(3) The general rule that the power to punish for contempt rests with the court contemned is that contempt proceedings are sui generis and are triable only by the court against whose authority the contempt are charged; the power to punish for contempt exists for the purpose of enabling a court to compel due decorum and respect in its presence and due obedience to its judgments, orders and processes: and in order that a court may compel obedience to its orders, it must have the right to inquire whether there has been any

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disobedience thereof, for to submit the question of disobedience to another tribunal would operate to deprive the proceeding of half its efficiency.

There are, however, several jurisprudentially and statutorily recognized exceptions to the general rule, both under Philippine and American jurisprudence.

The rule, as now accepted and deemed applicable to the present incident, is that where the entire case has already been appealed, jurisdiction to punish for contempt rests with the appellate court where the appeal completely transfers the proceedings thereto or where there is a tendency to affect the status quo or otherwise interfere with the jurisdiction of the appellate court.

(4) The availability of the power to punish for contempt does not and will not prevent a prosecution for libel, either before, during, or after the institution of contempt proceedings. The fact that certain contemptuous conduct likewise constitutes an indictable libel against the judge of the court contemned does not necessarily require him to bring a libel action, rather than relying on contempt Proceedings. The fact that an act constituting contempt is also criminal and punishable by indictment or other methods of criminal prosecution does not prevent the outraged Court from punishing the contempt. The defense of having once been in jeopardy, based on a conviction for the criminal offense, would not lie to prevent contempt proceedings, on the proposition that contempt may be an offense against the dignity of a court and, at the same time, an offense against the peace and dignity of the people of the State.

HOWEVER, the fact that judges who are unjustly attacked also have a remedy in an action for libel has been assailed as being without rational basis in principle. In the first place, the outrage is not directed to the judge as a private individual but to the judge as such or to the court as an organ of the administration of justice. In the second place, public interests will gravely suffer where the judge, as such, will, from time to time, be pulled down and disrobed of his judicial authority to face his assailant on equal grounds and prosecute cases in his behalf as a private individual. The same reasons of public policy which exempt a judge from civil liability in

the exercise of his judicial functions, most fundamental of which is the policy to confine his time exclusively to the discharge of his public duties, applies here with equal, if not superior, force.

(5) The basic rule here is that the power to punish for contempt and the power to disbar are separate and distinct, and that the exercise of one does not exclude the exercise of the other. A contempt proceeding for misbehavior in court is designed to vindicate the authority of the court; on the other hand, the object of a disciplinary proceeding is to deal with the fitness of the court's officer to continue in that office, to preserve and protect the court and the public from the official ministrations of persons unfit or unworthy to hold such office.

The principal purpose of the exercise of the power to cite for contempt is to safeguard the functions of the court and should thus be used sparingly on a preservative and not, on the vindictive principle. The principal purpose of the exercise of disciplinary authority by the Supreme Court is to assure respect for orders of such court by attorneys who, as much as judges, are responsible for the orderly administration of justice. Moreover, it has been held that the imposition a fine as a penalty in a contempt proceeding is not considered res judicata to a subsequent charge for unprofessional conduct. In the same manner an attorney's conviction for contempt was not collaterally estopped by reason of a subsequent disbarment proceeding in which the court found in his favor on essentially the same facts leading to conviction. Contempt of court is governed by the procedures laid down under Rule 71 of the Rules of Court, whereas disciplinary actions in the Practice of law are governed by file 138 and 139 thereof.

SC DOCTRINES:Criminal Contempt Civil Contempt

As to nature of the offense

- Directed against the dignity and authority of the court or a judge acting judicially;- An act obstructing the administration of justice, which tends to bring the court into disrepute or disrespect;- An offense against organized society;

- Consists in failing to do something ordered to be done by a court in a civil action for the benefit of the opposing party therein;

- An offense against the party in whose


- Intent is a necessary element in criminal contempt, and that no one can be punished for a criminal contempt unless the evidence makes it clear that he intended to commit it

behalf the violated order is made;

- Proceedings to punish a civil contempt are remedial and for the purpose of the preservation of the right of private persons;

- Intent in committing the contempt is immaterial.

As to the purpose for which the power is exercised

- To preserve the court’s authority and to punish for disobedience of its orders;- It involves no element of personal injury. It is directed against the power and dignity of the court; private parties have little, if any, interest in the proceedings for punishment.

- To provide a remedy for an injured suitor and to coerce compliance with an order,- It consists in the refusal of a person to do an act that the court has ordered him to do for the benefit or advantage of a party to an action pending before the court;- The contemnor is committed until he complies with the order. The contemnor must be in a position to purge himself- Commitment is in the nature of an execution to enforce the judgment of the court;- The party in whose favor that judgment was rendered is the real party in interest in the proceedings;

As to the character of

- Criminal contempt proceedings are generally

- Generally held to be remedial and civil in

the contempt proceeding

held to be in the nature of criminal or quasi-criminal actions;- They are punitive in nature, and the Government, the courts, and the people are interested in their prosecution;- They are not criminal proceedings or prosecutions, even though the contemptuous act involved is also a crime;- The proceeding has been characterized as sui generis, partaking of some of the elements of both a civil and criminal proceeding, but really constituting neither.- In general, criminal contempt proceedings should be conducted in accordance with the principles and rules applicable to criminal cases, in so far as such procedure is consistent with the summary nature of contempt proceedings;- Not required to take any particular form so long as the substantial rights of the accused are preserved.- It is generally held that the State is the real prosecutor;- Thee defendant is presumed innocent and the burden is on the prosecution to prove the charges beyond reasonable doubt;

their nature;- Proceedings for the enforcement of some duty, and essentially a remedy for coercing a person to do the thing required;- A proceeding is one for civil contempt if the act charged is wholly the disobedience, by one party to a suit, of a special order made in behalf of the other party and the disobeyed order may still be obeyed, and the purpose of the punishment is to aid in an enforcement of obedience;- The rules of procedure governing criminal contempt proceedings, or criminal prosecutions, ordinarily are inapplicable to civil contempt proceedings.- Instituted by an aggrieved party, or his successor, or someone who has a pecuniary interest in the right to be protected.- There is no presumption, although the burden of proof is on the complainant.- The burden of proof in a civil contempt proceeding lies somewhere between the criminal

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"reasonable doubt" burden and the civil "fair preponderance" burden.

Case Digests (Part II)

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Transcript of Case Digests (Part II)