Special Civil Actions | Atty. Melo

MandamusSection 3. Petition for mandamus.When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent.

The petition shall also contain a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46. What is mandamus? Elements?

1. Tribunal, corporation, board, officer exercising MINISTERIAL functions

2. Legal right or legal duty

3. No other remedy

Angchangco, Jr. v. Ombudsman, 268 SCRA 301 (1997)

Mandamus is employed to compel the performance, when refused, of a ministerial duty, this being its chief use and not a discretionary duty. It is nonetheless likewise available to compel action, when refused, in matters involving judgment and discretion, but not to direct the exercise of judgment or discretion in a particular way or the retraction or reversal of an action already taken in the exercise of either.

In the performance of an official duty or act involving discretion, the corresponding official can only be directed by mandamus to act, but not to act one way or the other. However, this rule admits of exceptions such as in cases where there is gross abuse of discretion, manifest injustice, or palpable excess of authority.

Atty. Melo:

OMB said he couldnt be compelled to decide one way or another because he had to exercise his discretion. SC said mandamus proper to compel OMB to ACT on the case but not HOW to decide on it, OMBs argument is misplaced because mandamus was not to compel him to decide how to decide the case but to act promptly on the duty mandated by the Constitution.

SC went further and said there was GAD, OMB transgressed on constitutional rights of petitioner so mandamus was proper.

Lamb v. Phipps, 22 Phil. 456 (1912) [long case! (]

Whenever a duty is imposed upon a public official and any unnecessary delay in the exercising of such duty occurs, the courts will interfere by the extraordinary legal remedy of mandamus to compel action. If the duty is purely ministerial, the courts will require specific action. If the duty is purely discretional, the court, by mandamus, will require action only.

It is essential to the issuance of a writ of mandamus that the plaintiff have a clear legal right to the thing demanded and it must be the imperative duty of the defendant to perform the act required. It never issues in doubtful cases. While it may not be necessary that the duty be absolutely express, it is necessary that it should be clear.

The writ of mandamus will not issue to compel an officer to do anything which is not his duty to do, or which is his duty not to do, or to give the applicant anything to which he is not entitled by law. The writ of mandamus neither confers powers nor imposes duties. It is simply a command to exercise a power already possessed and to perform a duty already imposed.

Discretion may be defined as the act or the liberty to decide, according to the principles of justice and ones ideas of what is right and proper under the circumstances, without willfulness or favor.

Discretion, when applied to public functionaries, means a power or right conferred upon them by law, of acting officially, under certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others.

A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment, upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer, and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion nor judgment.

J. Trent, dissenting:

In determining whether the writ of mandamus should issue, the court must be governed by the nature of the duty sought to be enforced and not by the nature of the office held by respondent. In this jurisdiction this standard rule has been modified by excepting from its operation the Chief Executive. None of the reasons which induced the court to make this exception apply to the office of the Auditor for the PI.

Duties of public officers are of two kinds: (1) those of a political or legislative character, in the discharge of which their discretion is generally uncontrollable by mandamus; (2) those administrative, judicial, and quasi-judicial duties imposed by law which, under certain circumstances, are controllable by mandamus.

Broadly speaking, public officers in the performance of all their official duties use discretion. Such discretion is one of degree and not of kind.

Where anything is left to any person to be done according to his discretion, the law intends it must be done with a sound discretion, and according to law. The discretion conferred upon officers by law is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion to be exercised ex gratia, but a legal discretion to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.

The only discretion which public officers can use is legal discretion conferred upon them by law.

Where it is alleged and shown that the officer has grossly abused the legal discretion conferred upon him by law or has manifestly misinterpreted the law to the prejudice of the rights of citizens, the courts will then control the acts of the officer and direct him to go forward in accordance with the law and the principles of justice.

Atty. Melo:

Discretion decide according to principles of justice/right or wrong

J. Trent, dissenting: discretion granted is never unlimited. It is always legal discretion it may only be exercised in a way consistent with purpose or spirit of law.

When anything is left for officer to be done on his own discretion, law intends it to be done on sound discretion (see above)

Not emphasized properly: appeal to the governor general was not adequate because you had to send papers internationally, it wouldve taken a long time. It wouldve been unjust on petitioner because he couldnt leave the Philippines and go back to the US without that clearance. Appeal was not the speedy and adequate remedy.

Trents dissent accepted now

PLDT v. Manggagawa ng Komunikasyon sa Pilipinas, 463 SCRA 418 (2005)

Discretion is defined as the act or the liberty to decide, according to the principles of justice and ones ideas of what is right and proper under the circumstances, without willfulness or favor. Where anything is left to any person to be done according to his discretion, the law intends it must be done with a sound discretion, and according to law. The discretion conferred upon officers by law is not a capricious or arbitrary discretion, but an impartial discretion guided and controlled in its exercise by fixed legal principles. It is not a mental discretion to be exercised ex gratia, but a legal discretion to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. No matter how broad the exercise of discretion is, the same must be within the confines of law.

MMDA v. Concerned Citizens, 18 December 2008 (not assigned)

MMDA argues that it cannot be compelled by mandamus to do something as complicated and immense as the clean up of Manila Bay because it has to exercise discretion on what to do. SC said MMDA is not being told how to do its job but to comply with law, maintain cleanliness, employ wastewater facilities (I guess Art II, Sec 16 also). Mandamus is issued not to tell the MMDA how to do it [the clean up] but to act to achieve purpose of law. Mandamus granted. Case introduced Indian principle of continuing mandamus which states that the court has the power from time to time to issue orders which compel compliance with the original decision. SC said all agencies must submit progress reports how theyve been complying with the order.

Kapisanan ng mga Manggagagawa v. Manila Railroad, G.R. No. L-25316 (1979) Mandamus is the proper remedy if it could be shown that there was neglect on the part of a tribunal in the performance of an act, which specifically the law enjoins as a duty or an unlawful exclusion of a party from the use and enjoyment of a right to which he is entitled Only specific legal rights may be enforced by mandamus if they are clear and certain. If the legal rights of the petitioner are not well defined, clear, and certain, the petition must be dismissed. It is essential to the issuance of the writ of mandamus that the plaintiff should have a clear legal right to the thing demanded, and it must be the imperative duty of the defendant to perform the act required. It never issues in doubtful cases.Atty. Melo: Only right given was deduction, not first priority in preference of credits

Mandamus must be clear legal right, something that is actually existing, not anything that is in doubt.

Carbungco v. Amparo, 84 Phil. 638 (1949)

[Petition for mandamus, actual doctrine is regarding rental law]

Atty. Melo:

Does court have discretion to extend period? No, no discretion to extend the period in rental law. Period provided by law is mandatory. Ministerial for court to apply the law duty to issue writ of execution is ministerial, thus a proper subject of mandamus.

University of San Carlos v. CA, 166 SCRA 570 (1988)

Schools are given ample discretion to formulate rules and guidelines in the granting of honors for purposes of graduation. This is part of academic freedom. Within the parameters of these rules, it is within the competence of universities and colleges to determine who are entitled to the grant of honors among the graduating students. Its discretion on this academic matter may not be disturbed much less controlled b the courts unless there is grave abuse of discretion in its exercise.

Atty. Melo:

Conferment of honors on a student is not a matter of ministerial duty. School has discretion, part of academic freedom.

Peralta v. Salcedo, 101 Phil. 452 (1957)

No recourse to the courts can be had until all administrative remedies have been exhausted; and special civil actions have been held not entertainable if superior administrative officers could grant relief. Mandamus in this case is, therefore, premature.

Atty. Melo:

Since SC decided mandamus improper because there was another remedy, was there discussion that issuance of certification of completion is a discretionary or ministerial duty? SC just decided on basis of presence of adequate remedy. Assuming there was no adequate remedy, would the SC have decided that issuance of certification is discretionary or ministerial (will mandamus lie)?

Madrigal v. Lecaroz, 191 SCRA 20 (1990)

Petitions for quo warranto and mandamus affecting titles to public office must be filed within one year from the date the petitioner was ousted from his office to provide stability in the service so that public business may not be unduly hampered.

Atty. Melo:

Mandamus was for petitioner to exercise legal right to his office. SC said this is actually quo warranto, want to regain a public office already abolished. But for purposes of public policy, QW must be filed within one year.

Mandamus can be filed against tribunal, corporation, board, officer or person, as in the USC case where it was filed against a school. Mandamus is unlike certiorari in this sense as certiorari can only be filed against judicial or quasi-judicial body.

Common Matters

Section 4. When and where petition filed.The petition may be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of said motion.

The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, and unless otherwise provided by law or these rules, the petition shall be filed in and cognizable only by the Court of Appeals.

No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding fifteen (15) days.

Section 5. Respondents and costs in certain casesWhen the petition filed relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person, the petitioner shall join, as private respondent or respondents with such public respondent or respondents, the person or persons interested in sustaining the proceedings in the court; and it shall be the duty of such private respondents to appear and defend, both in his or their own behalf and in behalf of the public respondent or respondents affected by the proceedings, and the costs awarded in such proceedings in favor of the petitioner shall be against the private respondents only, and not against the judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person impleaded as public respondent or respondents.

Unless otherwise specifically directed by the court where the petition is pending, the public respondents shall not appear in or file an answer or comment to the petition or any pleading therein. If the case is elevated to a higher court by either party, the public respondents shall be included therein as nominal parties. However, unless otherwise specifically directed by the court, they shall not appear or participate in the proceedings therein.

Section 6. Order to comment.- If the petition is sufficient in form and substance to justify such process, the court shall issue an order requiring the respondent or respondents to comment on the petition within ten (10) days from receipt of a copy thereof. Such order shall be served on the respondents in such manner as the court may direct, together with a copy of the petition and any annexes thereto.

In petitions for certiorari before the Supreme Court and the Court of Appeals, the provisions of section 2, Rule 56, shall be observed. Before giving due course thereto, the court may require the respondents to file their comment to, and not a motion to dismiss, the petition. Thereafter, the court may require the filing of a reply and such other responsive or other pleadings as it may deem necessary and proper.

Section 7. Expediting proceedings; injunctive relief.The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the course of the principal case unless a temporary restraining order or a writ of preliminary injunction has been issued against the public respondent from further proceeding in the case.

Section 8. Proceedings after comment is filed.After the comment or other pleadings required by the court are filed, or the time for the filing thereof has expired, the court may hear the case or require the parties to submit memoranda. If after such hearing or submission of memoranda or the expiration of the period for the filing thereof the court finds that the allegations of the petition are true, it shall render judgment for the relief prayed for or to which the petitioner is entitled.

The court, however, may dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration.

Section 9. Service and enforcement of order or judgment.A certified copy of the judgment rendered in accordance with the last preceding section shall be served upon the court, quasi-judicial agency, tribunal, corporation, board, officer or person concerned in such manner as the court may direct, and disobedience thereto shall be punished as contempt. An execution may issue for any damages or costs awarded in accordance with section 1 of Rule 39. Atty. Melos lecture:

In your petition for certiorari, prohibition or mandamus, you must include certificate of non-forum shopping, certified true copies of questioned orders/decision, filed w/in 60d [from notice of judgment/denial of MR/MNT] to SC or CA or RTC in respective territory where case found, or SB in its appellate jurisdiction. If filed against a quasi-judicial agency, must be filed with CA

Judicial hierarchy, background: certiorari or prohibition can be filed against interlocutory orders, so main case in RTC still not terminated. Common practice to forestall any action by lower court, certiorari is filed questioning interlocutory order raising threshold issues or prejudicial questions.

Ex: complaint filed, MTD filed, denied. To stall case, petition for certiorari saying denial of MTD GADALEJ, while thats pending in CA, tells TC that it cannot proceed since certiorari pending.

Sec 7 petition shall not interrupt course of main case unless TRO or PI is issued.

Santiago v. Vasquez, 217 SCRA 633 (1993)

The original and special civil action filed with the SC is, for all intents and purposes, an invocation for the exercise of its supervisory powers over the lower courts. It does not have the effect of divesting the inferior courts of jurisdiction validly acquired over the case pending before them.

The mere pendency of a special civil action for certiorari, commenced in relation to a case pending before the lower court, does not even interrupt the course of the latter when there is no writ of injunction restraining it.

For as long as no writ of injunction or restraining order is issued in the special civil action for certiorari, no impediment exists and there is nothing to prevent the lower court from exercising its jurisdiction and proceeding with the case pending before it. And, even if such injunctive writ or order is issued, the lower court nevertheless continues to retain its jurisdiction over the principal action.

Atty. Melo:

Do not immediately go to SC for relief if relief available in lower court. Santiago shouldve filed with the SB a motion to lift the HDO/cancel it

SC will always say other reliefs are available in lower courts, go there first. Dont go to SC immediately.

Eternal Gardens Memorial Park Corp. v. CA, 164 SCRA 421 (1988)

Although the SC did not issue any restraining order against the IAC to prevent it from taking any action with regard to its resolutions respectively granting respondents motion to expunge from the records the petitioners MTD and denying the latters MR, upon learning of the petition, the appellate court should have refrained from ruling thereon because its jurisdiction was necessarily limited upon the filing of the petition for certiorari with the SC questioning the propriety of the issuance of the resolutions. Due respect for the SC and practical and ethical considerations should have prompted the appellate court to wait for the final determination of the petition before taking cognizance of the case and trying to render moot exactly what was before the SC.

The statement whatever rights the movants were allowed to exercise in the SC could be exercised by them in the CA is clearly misplaced. It implies concurrence of jurisdiction between the SC and the CA, which is totally unacceptable. It would lead to the absurd situation where within the reglementary period from finality of a decision or resolution, a party can simultaneously file a petition for review before the SC as well as an MR before the CA. This interpretation does havoc to the rules on orderly procedure. A party should not be allowed to pursue simultaneous remedies in two different forums.

Atty. Melo:

Propensity of litigants to delay cases because of pending certiorari

As soon as petition was filed with SC, LC lost jurisdiction to act on the particular issue pending before the SC. Allowing LC to proceed, theres possibility of conflicting decisions.

Litigants like citing this case when they want to delay/prevent LC from proceeding with the case

Joy Mart Consolidated Corp. v. CA, 209 SCRA 738 (1992)

Once a writ of preliminary injunction issued by a trial court is elevated to a higher court, the former loses jurisdiction over it and can no longer dissolve it.

In petitioning the trial court to lift the writ of preliminary injunction which they themselves had brought up to the CA for review, Phoenix and LRTA engaged in forum shopping. After the question of whether the writ of preliminary injunction should be annulled or continued had been elevated to the CA for determination, the trial court lost jurisdiction or authority to act on the same matter. By seeking from the trial court an order lifting the writ of preliminary injunction, Phoenix and LRTA sought to divest the CA of its jurisdiction to review the writ. They improperly tried to moot their own petition in the CA a clear case of trifling with the proceedings in the appellate court or of disrespect for said court.

Trial judge played into the hands of Phoenix and LRTA, and acted with GADAEJ in granting the motion to dissolve the writ of injunction. Judicial courtesy behooved the trial court to keep its hands off the writ of preliminary injunction and defer to the better judgment of the CA the determination of whether the writ should be continued or discontinued.

Non-issuance of TRO by the CA simply meant trial court can proceed to hear the complaint, but not to lift the injunction on review by the CA.

Atty. Melo:

RTC issues writ of PI, issuance elevated to CA and SC while thats pending, RTC dissolved writ of PI leaving CA and SC without anything to dissolve. SC said thats wrong, CA should not have noted act of lower court in reversing itself, at the time pet was filed with CA, LC lost jurisdiction to rule upon the same issue.

Go v. Abrogar, 398 SCRA 166 (2003)

The rule of judicial courtesy would apply only if there is a strong probability that the issues before the higher court would be rendered moot and moribund as a result of the continuation of the proceedings in the lower court.

Atty. Melo:

Continuing execution does not render petition moot. Assuming petition decided in favor of Go, it can be remedied by return of proceeds of execution. It is Go who violated rule on judicial courtesy since he engaged in forum shopping

Atty. Melos lecture:

Given these cases on judicial courtesy and hierarchy, it behooves lower court to respect pending petition with higher court. So how do you reconcile these with sec 7, that petition under Rule 65 does not interrupt main case unless TRO/PI?

Understandably, w/o sec 7, no case will ever be finished with all the incidents/interlocutory matters in a single case, litigants can always file certiorari and cases will be interminable. On the other hand, Eternal Gardens and Joy Mart, issue raised in higher court, wait for higher court to decide it otherwise you end up mooting or disrespecting higher courts authority

Resolution of the apparent conflict is lately, unless you can really show entitlement to TRO/PI, lower court case will proceed. Unless you show issue in higher court will affect lower court proceedings, lower court proceedings cannot be halted.

Remedy if case mooted appeal the decision of the RTC. Appeal almost coincides with the petition for certiorari. Petition for certiorari is low priority in that situation. Remember certiorari is remedy of last resort, so a pending appeal moots the certiorari.

Differentiate from Eternal Gardens and Joy Mart? EG and JM lower court issues were not pursuant to further proceedings, in JM issue was injunction, whether it was valid, but LC cancelled it. This is obviously wrong because the issue is with the CA. not mentioned in the case, but the main case continued, not restrained by SC. SC said insofar as injunction concerned, LC can no longer act on it. Other matters, LC can still act.

So if the issue/matter raised to higher court, LC can no longer act on such issue/matter.

What if issue is whether LC has jurisdiction? Can you say LC cannot act in main case because issue of jurisdiction being questioned? Atty. Melo thinks not because the lower court maintains it has jurisdiction, only petitioners word says LC has no jurisdiction. No TRO/PI, LC can still act. (sorry, medyo Malabo intindi ko dito)

General Rule: Tendency is to continue with LC case.

Exception: Limited cases as in Eternal Gardens and Joy Mart. If particular matter/issue raised and LC acts to make the issue pending in higher court moot.

Always depends on circumstances.

Additional notes on Rule 65

Refusal to comply with order of court constitutes indirect contempt so you can file an action to enforce the decision through petition for indirect contempt. Court not precluded from issuing orders ___ asking/commanding sheriff to take possession of property

You can also claim damages in the form of costs/litigation expenses and this can be a matter of execution, court can issue writ of execution to allow claims for costs, attorneys fees, etc

Rule 66

Quo Warranto

Section 1. Action by Government against individuals.An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against:

(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise;

(b) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; or

(c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act.

Section 2. When Solicitor General or public prosecutor must commence action.The Solicitor General or a public prosecutor, when directed by the President of the Philippines, or when upon complaint or otherwise he has good reason to believe that any case specified in the preceding section can be established by proof, must commence such action.

Section 3. When Solicitor General or public prosecutor may commence action with permission of court.The Solicitor General or a public prosecutor may, with the permission of the court in which the action is to be commenced, bring such an action at the request and upon the relation of another person; but in such case the officer bringing it may first require an indemnity for the expenses and costs of the action in an amount approved by and to be deposited in the court by the person at whose request and upon whose relation the same is brought.

Section 4. When hearing had on application for permission to commence action.Upon application for permission to commence such action in accordance with the next preceding section, the court shall direct that notice be given to the respondent so that he may be heard in opposition thereto; and if permission is granted, the court shall issue an order to that effect, copies of which shall be served on all interested parties, and the petition shall then be filed within the period ordered by the court.

Section 5. When an individual may commence such an action.A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another may bring an action therefor in his own name.

Section 6. Parties and contents of petition against usurpation.When the action is against a person for usurping a public office, position or franchise, the petition shall set forth the name of the person who claims to be entitled thereto, if any, with an averment of his right to the same and that the respondent is unlawfully in possession thereof. All persons who claim to be entitled to the public office, position or franchise may be made parties, and their respective rights to such public office, position or franchise determined, in the same action.

Section 7. Venue.An action under the preceding six sections can be brought only in the Supreme Court, the Court of Appeals, or in the Regional Trial Court exercising jurisdiction over the territorial area where the respondent or any of the respondents resides, but when the Solicitor General commences the action, it may be brought in a Regional Trial Court in the City of Manila, in the Court of Appeals, or in the Supreme Court.

Section 8. Period for pleadings and proceedings may be reduced; action given precedence .The court may reduce the period provided by these Rules for filing pleadings and for all other proceedings in the action in order to secure the most expeditious determination of the matters involved therein consistent with the rights of the parties. Such action may be given precedence over any other civil matter pending in the court.

Section 9. Judgment where usurpation found.When the respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a public office, position or franchise, judgment shall be rendered that such respondent be ousted and altogether excluded therefrom, and that the petitioner or relator, as the case may be, recover his costs. Such further judgment may be rendered determining the respective rights in and to the public office, position or franchise of all the parties to the action as justice requires.

Section 10. Rights of persons adjudged entitled to public office; delivery of books and papers; damages.If judgment be rendered in favor of the person averred in the complaint to be entitled to the public office he may, after taking the oath of office and executing any official bond required by law, take upon himself the execution of the office, and may immediately thereafter demand of the respondent all the books and papers in the respondents custody or control appertaining to the office to which the judgment relates. If the respondent refuses or neglects to deliver any book or paper pursuant to such demand, he may be punished for contempt as having disobeyed a lawful order of the court. The person adjudged entitled to the office may also bring action against the respondent to recover the damages sustained by such person by reason of the usurpation.

Section 11. Limitations.Nothing contained in this Rule shall be construed to authorize an action against a public officer or employee for his ouster from office unless the same be commenced within one (1) year after the cause of such ouster, or the right of the petitioner to hold such office or position, arose; nor to authorize an action for damages in accordance with the provisions of the next preceding section unless the same be commenced within one (1) year after the entry of the judgment establishing the petitioners right to the office in question.

Section 12. Judgment for costs.In an action brought in accordance with the provisions of this Rule, the court may render judgment for costs against either the petitioner, the relator, or the respondent, or the person or persons claiming to be a corporation, or may apportion the costs, as justice requires.Atty. Melos lecture:

What is quo warranto?

Used when there is usurpation. Three instances:

A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; or An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act.Can you file petition for quo warranto against Dean CLV on the ground you are entitled to his office?

No, he is not a public officer, nor is his office created by law. Only public office can be subject of petition for quo warranto

Who can commence petition for quo warranto?

Government through solicitor general or public prosecutor

When is Sol Gen required to file the case? (MUST)

Sec 2: required by President OR upon complaint or otherwise he has good reason to believe that any case specified in the preceding section can be established by proof, must commence such action

When may he file the case?

Sec 3: with the permission of the court in which the action is to be commenced, bring such an action at the request and upon the relation of another person; but in such case the officer bringing it may first require an indemnity for the expenses and costs of the action in an amount approved by and to be deposited in the court by the person at whose request and upon whose relation the same is brought.

Distinguish section 2 and 3

QW MUST be commenced by Sol Gen in Sec 2 required by President or if he has good reason to believe that any case in section 1 can be established

Discretionary: section 3 Also when third person files a complaint with Sol Gen

Private person filing complaint alleges he is entitled to office and wants to replace person currently holding office: section 5

With no such allegation, he must go through the Sol Gen and ask him to file the complaint

Is person filing complaint claiming the position for his own. If not, go to Sol Gen.

More lecture:

When the Sol Gen commences the action upon the relation of another party or a third person, the Rules say the courts permission must be secured. Rules further provide that if permission is required, Sol Gen must first file a request for permission asking the court for permission to file the petition itself. Upon filing request, court will notify the respondent (Person holding the office) who may oppose the filing of such petition (first level of opposition). If permission is granted, thats the only time Sol Gen can file petition for QW itself. Thats another level of opposition for respondent

Two steps in petition for quo warranto under section 3

If commenced by party who wants to replace, no such request for permission is needed. Party can go directly.

Another thing to remember: in QW, you must implead all persons interested in the position or office.

What basic allegations must be contained in the petition for quo warranto if you are a person who wants to take over the public office?

1. Petitioner is entitled to the office; AND

2. Person holding the office is unlawfully holding it.

Potot v. Bagano, 82 Phil. 679 (1949)

Acceptance of other public offices incompatible with judicial functions operate as an abandonment of the position of a justice of the peace

Atty. Melo:

What did the court rely on that Potot was no longer entitled to the office? Acceptance of a position incompatible with the position of justice of the peace

If he filed the case within 1y, would he still have lost the case due to abandonment? Yes, taking up of another position is an overt act that shows you are no longer interested in the office. By taking up another position, unless you are forced to, requires that you no longer hold any other office. (Prohibition against holding concurrent offices)

Prescriptive period: 1y. action for QW must be filed within 1y from date cause of action accrues so from when holding of office by current officer becomes unlawful or from date petitioner becomes entitled to the office

Petitioner in QW, when he wins, can seek damages from public officer ousted. Usually happens when respondent fails to turn over effects of office. Damages can be claimed by prevailing party. Theres a limitation for the action for damages, separate action, also within 1y from date action for quo warranto becomes final

Venue for QW: Where respondent resides

EXCEPT: When Sol Gen commences it, in which case it can be filed in RTC Manila, CA or SC

Abaya v. Alvear, 82 Phil. 103 (1948)

Because of the abnormal conditions obtaining during the war, there is reason to believe that the changing of the original circuit occupied by petitioner by eliminating one town therefrom, was a mere temporary expedient to meet the exigencies of the administration of justice in that area, under abnormal conditions, and that acceptance of the new post did not involve or entail abandonment of his old position. In proof of the temporary nature of the change in the circuit is the fact that when conditions returned to normal, the old circuit was restored, petitioner was likewise restored to his old post by appointments extended to him.

Teves v. Sindiong, 81 Phil. 658 (1948)

Members of the SC and all judges of inferior courts shall hold office during good behavior, until they reach the age of seventy years, or become incapacitated to discharge the duties of their office a justice of the peace appointed and qualified before the war, but who ceased to discharge his duties as such at the outbreak thereof, may, after liberation or after the war, resume and continue in his office until he either reaches the age limit, becomes incapacitated, resigns from office, is properly removed therefrom, or abandons the same.

Abandonment of an office by reason of the acceptance of another, in order to be effective and binding, should spring from and be accompanied by deliberation and freedom of choice, either to keep the old office or renounce it for another.

Abandonment of an office may not and should not be too strictly applied to cases occurring during war, especially in those areas occupied partly or entirely by the enemy.

Under normal conditions, failure to discharge the functions and resume the duties of an office may clearly be regarded as an abandonment and vacation of his office, a voluntary relinquishment through non-user.

One cannot be properly appointed to the same post that he is already holding under a valid appointment.

An appointment to the post of justice of the peace extended to one who had a right to it because of a previous pre-war appointment under which he had qualified and discharged his duties, may be regarded as a mere restitution or restoration of the position which belonged to him; and that the new appointment can add nothing to or diminish his right to the office conferred by his original appointment.

Atty. Melo:

Reappointment of Teves as JP of three towns was only to meet exigencies of war. When exigency ended, he is deemed reinstated in his original position of JP Luzurriaga

Serafin v. Cruz, 58 Phil. 611 (1933)

The extraordinary legal remedy of quo warranto does not lie against a duly and legally appointed chief of municipal police who has duly qualified for and has entered upon the performance of his duties, in order to reinstate another who has been legally dismissed from the said office.

Atty. Melo:

Serafin forgot about the second requirement he only alleged that he was entitled to the office. He forgot to assail the legality of the holding of the office of the other person. Nothing wrong with the appointment of Cruz as new chief of police.

Lacson v. Romero, 84 Phil. 740 (1949)

The transfer of Lacson to Tarlac by his nomination to the post of provincial fiscal of that province was equivalent to and meant his removal as provincial fiscal of Negros Oriental; that said removal was illegal and unlawful for lack of valid cause as provided by law and the Constitution; that the confirmation of the nomination by the Commission on Appointments did not and could not validate the removal, since the Constitution is equally binding on the Legislature; that a provincial fiscal is a civil service official or employee whose tenure of office is protected by the Constitution; and that Antonio Lacson could not be compelled to accept his appointment as provincial fiscal of Tarlac; that having declined said appointment, he continued as provincial fiscal of Negros Oriental; that inasmuch as he neither left, abandoned nor resigned from his post as provincial fiscal of Negros Oriental, there was no vacancy in said post to which the respondent could be legally appointed; and that consequently, the appointment of the respondent was invalid.

Atty. Melo:

Lacson was deemed not to have relinquished his position because he did not accept the transfer so there was no vacancy.

Acosta v. Flor, x Phil. 18 (1905)

A private person cannot maintain an action for the removal of a public officer unless he alleges that he is entitled to the same office. When such an allegation is made but not proven, the court is justified in dismissing the case without inquiring into the right of the defendant to retain the office.

Atty. Melo:

Acostas main gripe was although he was not able to prove that he won, he assailed that Flor still usurped the position. Again, go back to the requirement that you must prove your right and that the other party is unlawfully holding the office. Here, petitioner could not prove his right so it need not even decide whether the other party unlawfully holds the office.

Garcia v. Perez, 99 SCRA 628 (1980)

In a quo warranto proceeding, petitioner must show that he is entitled to office. One whose claim is predicated solely upon a more or less remote possibility, that he may be the recipient of the appointment, has no cause of action against the office holder. This is precisely the situation in the case at hand, and there is no cogent reason to change the rule. She was not even next in rank. Mere expectancy of appointment is not the same with title over the position. Petitioner alleged that she was next in rank (claim to office). SC said petition should not be based on the remote possibility of appointment. Preference, seniority, age is not equivalent to legal right to the office.

Legal right must be something you can enforce. Ex: an appointment paper.

Cruz v. Ramos, 84 Phil. 226 (1949)

The present petition for quo warranto is not authorized because the petitioners do not claim to be entitled to the public office alleged to be unlawfully held or exercised by the respondents.

A public office or a franchise is created or granted by law, and its usurpation or unlawful exercise is the concern primarily of the government. Hence the latter as a rule is the party called upon to bring the action for such usurpation or unlawful exercise of an office or franchise. The only exception in which the law permits an individual to bring the action in his own name is when he claims to be entitled to the public office alleged to be usurped or unlawfully held or exercised by another.

QW is a hardly used procedure because when it comes to elective officials, OEC applies. Rarely do appointive official file QW.

Rule 67

ExpropriationSection 1. The complaint.The right of eminent domain shall be exercised by the filing of a verified complaint which shall state with certainty the right and purpose of expropriation, describe the real or personal property sought to be expropriated, and join as defendants all persons owning or claiming to own, or occupying, any part thereof or interest therein, showing, so far as practicable, the separate interest of each defendant. If the title to any property sought to be expropriated appears to be in the Republic of the Philippines, although occupied by private individuals, or if the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners, averment to that effect shall be made in the complaint.

Section 2. Entry of plaintiff upon depositing value with authorized government depository.Upon the filing of the complaint or at any time thereafter and after due notice to the defendant, the plaintiff shall have the right to take or enter upon the possession of the real property involved if he deposits with the authorized government depositary an amount equivalent to the assessed value of the property for purposes of taxation to be held by such bank subject to the orders of the court. Such deposit shall be in money, unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a government bank of the Republic of the Philippines payable on demand to the authorized government depositary.

If personal property is involved, its value shall be provisionally ascertained and the amount to be deposited shall be promptly fixed by the court.

After such deposit is made the court shall order the sheriff or other proper officer to forthwith place the plaintiff in possession of the property involved and promptly submit a report thereof to the court with service of copies to the parties.

Section 3. Defenses and objections.If a defendant has no objection or defense to the action or the taking of his property, he may file and serve a notice of appearance and a manifestation to that effect, specifically designating or identifying the property in which he claims to be interested, within the time stated in the summons. Thereafter, he shall be entitled to notice of all proceedings affecting the same.

If a defendant has any objection to the filing of or the allegations in the complaint, or any objection or defense to the taking of his property, he shall serve his answer within the time stated in the summons. The answer shall specifically designate or identify the property in which he claims to have an interest, state the nature and extent of the interest claimed, and adduce all his objections and defenses to the taking of his property. No counterclaim, cross-claim or third-party complaint shall be alleged or allowed in the answer or any subsequent pleading.

A defendant waives all defenses and objections not so alleged but the court, in the interest of justice, may permit amendments to the answer to be made not later than ten (10) days from the filing thereof. However, at the trial of the issue of just compensation, whether or not a defendant has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award.

Section 4. Order of expropriation.If the objections to and the defenses against the right of the plaintiff to expropriate the property are overruled, or when no party appears to defend as required by this Rule, the court may issue an order of expropriation declaring that the plaintiff has a lawful right to take the property sought to be expropriated, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint, whichever came first.

A final order sustaining the right to expropriate the property may be appealed by any party aggrieved thereby. Such appeal, however, shall not prevent the court from determining the just compensation to be paid.

After the rendition of such an order, the plaintiff shall not be permitted to dismiss or discontinue the proceeding except on such terms as the court deems just and equitable.

Section 5. Ascertainment of compensation.Upon the rendition of the order of expropriation, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. The order of appointment shall designate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report shall be submitted to the court.

Copies of the order shall be served on the parties. Objections to the appointment of any of the commissioners shall be filed with the court within ten (10) days from service, and shall be resolved within thirty (30) days after all the commissioners shall have received copies of the objections.

Section 6. Proceedings by commissioners.Before entering upon the performance of their duties, the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case. Evidence may be introduced by either party before the commissioners who are authorized to administer oaths on hearings before them, and the commissioners shall, unless the parties consent to the contrary, after due notice to the parties to attend, view and examine the property sought to be expropriated and its surroundings, and may measure the same, after which either party may, by himself or counsel, argue the case. The commissioners shall assess the consequential damages to the property not taken and deduct from such consequential damages the consequential benefits to be derived by the owner from the public use or purpose of the property taken, the operation of its franchise by the corporation or the carrying on of the business of the corporation or person taking the property. But in no case shall the consequential benefits assessed exceed the consequential damages assessed, or the owner be deprived of the actual value of his property so taken.

Section 7. Report by commissioners and judgment thereupon. The court may order the commissioners to report when any particular portion of the real estate shall have been passed upon by them, and may render judgment upon such partial report, and direct the commissioners to proceed with their work as to subsequent portions of the property sought to be expropriated, and may from time to time so deal with such property. The commissioners shall make a full and accurate report to the court of all their proceedings, and such proceedings shall not be effectual until the court shall have accepted their report and rendered judgment in accordance with their recommendations. Except as otherwise expressly ordered by the court, such report shall be filed within sixty (60) days from the date the commissioners were notified of their appointment, which time may be extended in the discretion of the court. Upon the filing of such report, the clerk of the court shall serve copies thereof on all interested parties, with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire.

Section 8. Action upon commissioners report.Upon the expiration of the period of ten (10) days referred to in the preceding section, or even before the expiration of such period but after all the interested parties have filed their objections to the report or their statement of agreement therewith, the court may, after hearing, accept the report and render judgment in accordance therewith; or, for cause shown, it may recommit the same to the commissioners for further report of facts; or it may set aside the report and appoint new commissioners; or it may accept the report in part and reject it in part; and it may make such order or render such judgment as shall secure to the plaintiff the property essential to the exercise of his right of expropriation, and to the defendant just compensation for the property so taken.

Section 9. Uncertain ownership; conflicting claims.If the ownership of the property taken is uncertain, or there are conflicting claims to any part thereof, the court may order any sum or sums awarded as compensation for the property to be paid to the court for the benefit of the person adjudged in the same proceeding to be entitled thereto. But the judgment shall require the payment of the sum or sums awarded to either the defendant or the court before the plaintiff can enter upon the property, or retain it for the public use or purpose if entry has already been made.

Section 10. Rights of plaintiff after judgment and payment. Upon payment by the plaintiff to the defendant of the compensation fixed by the judgment, with legal interest thereon from the taking of the possession of the property, or after tender to him of the amount so fixed and payment of the costs, the plaintiff shall have the right to enter upon the property expropriated and to appropriate it for the public use or purpose defined in the judgment, or to retain it should he have taken immediate possession thereof under the provisions of section 2 hereof. If the defendant and his counsel absent themselves from the court, or decline to receive the amount tendered, the same shall be ordered to be deposited in court and such deposit shall have the same effect as actual payment thereof to the defendant or the person ultimately adjudged entitled thereto.

Section 11. Entry not delayed by appeal; effect of reversal. The right of the plaintiff to enter upon the property of the defendant and appropriate the same for public use or purpose shall not be delayed by an appeal from the judgment. But if the appellate court determines that plaintiff has no right of expropriation, judgment shall be rendered ordering the Regional Trial Court to forthwith enforce the restoration to the defendant of the possession of the property, and to determine the damages which the defendant sustained and may recover by reason of the possession taken by the plaintiff.

Section 12. Costs, by whom paid.The fees of the commissioners shall be taxed as a part of the costs of the proceedings. All costs, except those of rival claimants litigating their claims, shall be paid by the plaintiff, unless an appeal is taken by the owner of the property and the judgment is affirmed, in which event the costs of the appeal shall be paid by the owner.

Section 13. Recording judgment, and its effect.The judgment entered in expropriation proceedings shall state definitely, by an adequate description, the particular property or interest therein expropriated, and the nature of the public use or purpose for which it is expropriated. When real estate is expropriated, a certified copy of such judgment shall be recorded in the registry of deeds of the place in which the property is situated, and its effect shall be to vest in the plaintiff the title to the real estate so described for such public use or purpose.

Section 14. Power of guardian in such proceedings.The guardian or guardian ad litem of a minor or of a person judicially declared to be incompetent may, with the approval of the court first had, do and perform on behalf of his ward any act, matter, or thing respecting the expropriation for public use or purpose of property belonging to such minor or person judicially declared to be incompetent, which such minor or person judicially declared to be incompetent could do in such proceedings if he were of age or competent. Atty. Melos lecture:

Verified petition

ALL initiatory complaints must be verified.

Complaint should state right and purpose of expropriation

Right? Allege that theres power to expropriate

Who has power? State

Who in particular? Sol Gen? Judiciary? The executive? Expropriation is exercised by the Legislature but Legislature may delegate this to the Executive such as when it delegates it by law to the DPWH, etc. Power originates from law-making power. Essentially a legislative act, must be in accordance with law.

Indispensable requirements: for public use and payment of just compensation

Where filed? RTC

Barangay San Roque, Talisay, Cebu v. Heirs of Francisco Pastor, 334 SCRA 127 (2000)

An expropriation suit is incapable of pecuniary estimation, and falls within the jurisdiction of the RTC. In determining whether an action is one the subject matter of which is not capable of pecuniary estimation, the criterion is to first ascertain the nature of the principal action or remedy sought.

If it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and whether jurisdiction is in the municipal courts or in courts of first instance would depend on the amount of the claim.

However, where the basic issue is something other than the right to recover a sum of money, or where the money claim is purely incidental to, or a consequence of, the principal relief sought, like in suits for specific performance and in actions for support, or for annulment of judgment or to foreclose a mortgage, such actions are considered as cases where the subject of litigation may not be estimated in terms of money, and are cognizable exclusively by courts of first instance.

The rationale of the rule is plainly that the second class of cases, besides the determination of damages, demand an inquiry into other factors which the law has deemed to be more within the competence of courts of first instance, which were the lowest courts of record at the time the first organic laws of the Judiciary were enacted allocating jurisdiction.

Atty. Melo:

RTC has jurisdiction. While property is capable of pecuniary estimation, what is SM of the action is not the value of property but the governments right to expropriate whether expropriation is proper or not, whether it is for public use, amount of just compensation that must be paid.

Atty. Melos lecture:

In expropriation, the government can take property immediately after filing complaint or after. Requirements if it takes property upon filing of complaint: government must deposit amount equivalent to assessed value with bank or court, in money (except: CARP where bonds allowed). Without this deposit, government cannot enter or take the property (yeah right, it does whatever it wants). Just compensation is computed from time of taking or from filing of complaint, whichever is earlier.

Why is there deposit required, based on assessed value? Deposit is just pre-payment for just compensation. Indemnity for damages if proceedings are dismissed. Otherwise, property owner has no other recourse if his property is taken without such deposit. Suing the government for damages is practically impossible.

Eminent domain has two stages. First is determination of propriety of expropriation, w/n it is for public use. Second is determination of just compensation. So there are two decisions, first the determination of propriety results in an order of expropriation. This concludes the first stage and it is appealable. If you dont appeal, first stage (order of expropriation) becomes final. Second stage is determination of just compensation, which comes with another order stating how much just compensation must be paid to land owner, this is also subject to separate appeal. [thus, multiple appeals are allowed, 30 days to appeal/MR]

National Power Corporation v. Jocson, 206 SCRA 520 (1992)

There are two stages in every action of expropriation. The first is concerned with the determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit. It ends with an order, if not of dismissal of the action, of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned, for the public use or purpose described in the complaint, upon payment of just compensation to be determined as of the date of the filing of the complaint. An order of dismissal, if this be ordained, would be a final one, of course, since it finally disposes of the action and leaves nothing more to be done by the court on the merits. So, too, would an order of condemnation be a final one, for thereafter as the rules expressly state, in the proceedings before the trial court, no objection to the exercise of the right of condemnation (or the propriety thereof) shall be filed or heard.

The second phase of eminent domain is concerned with the determination by the court of the just compensation for the property sought to be taken. This is done by the court with the assistance of not more than three commissioners. The order fixing the just compensation on the basis of the evidence before, and findings of, the commissioners would be final, too. It would finally dispose of the second stage of the suit, and leave nothing more to be done by the court regarding the issue.

Upon the filing of the complaint or at any time thereafter, the petitioner has the right to take or enter upon the possession of the property involved upon compliance with PD 42 which requires petitioner, after due notice to the defendant, to deposit with PNB in its main office or any of its branches, an amount equivalent to the assessed value of the property for purposes of taxation.

PD 42 repealed the provisions of Rule 67 of the (old) Rules and of any other existing law contrary to or inconsistent with it. Accordingly, it repealed Section 2 of Rule 67 (old rules) insofar as the determination of the provisional value, the form of payment and the agency with which the deposit shall be made are concerned.

PD 42 effectively removes the discretion of the court in determining the provisional value. What is to be deposited is an amount equivalent to the assessed value for taxation purposes. No hearing is required for that purpose. All that is needed is notice to the owner of the property sought to be condemned.

The determination of just compensation in eminent domain cases is a judicial function; accordingly, we declared as unconstitutional and void, for being, inter alia, impermissible encroachment on judicial prerogatives which tends to render the court inutile in a manner which under the Constitution is reserved to it for final determination, the method of ascertaining just compensation prescribed in PD Nos. 76, 464, 793 and 1533, to wit: market value as declared by the owner or administrator or such market value as determined by the assessor, whichever is lower in the first three decrees, and the value declared by the owner or administrator or anyone having legal interest in the property or the value as determined by the assessor, pursuant to the Real Property Tax Code, whichever is lower, prior to the recommendation or decision of the appropriate government office to acquire the property, in the last mentioned decree.

Visayan Refining Company v. Camus and Paredes, 40 Phil. 550 (1919)

The power of eminent domain is inseparable from sovereignty, being essential to the existence of the State and inherent in government even in its most primitive forms. No law, therefore, is ever necessary to confer this right upon sovereignty or upon any government exercising sovereign or quasi-sovereign powers.

The existence of a legislative appropriation especially destined to pay for land to be acquired by the government through the exercise of the power of eminent domain is not an essential prerequisite to the institution and maintenance of judicial proceedings for the expropriation of such land. All that can be required of the government is that it should comply with the conditions laid down by law as and when those conditions arise.

Atty. Melo:

Under organic law, government in general had inherent power to expropriate.

Municipality of Bian v. Garcia, 180 SCRA 576 (1989)

In actions of eminent domain, as in actions for partition, since no less than two appeals are allowed by law, the period for appeal from an order of condemnation is thirty days counted from the notice of said order and not the ordinary period of fifteen days prescribed for actions in general, conformably with sec 39 of BP 129, in relation to par 19 (b) of the Implementing Rules to the effect that in appeals in special proceedings in accordance with Rule 109 of the Rules of Court and other cases wherein multiple appeals are allowed, the period of appeal shall be thirty days, a record of appeal being required.

Atty. Melo:

Two appeals, two orders so rule on ordinary appeals. 30d. if you dont question within 30d, becomes final

Atty. Melos lecture:

How is just compensation determined? Court appoints three commissioners. JC is FMV Consequential damages to property + consequential benefits. Consequential benefits cannot exceed consequential damages. In any case, minimum that must be paid is FMV.

What are consequential damages/consequential benefits?

Ex: I have a huge tract of raw land, government wants to expropriate of my land to build a public market. The consequential damages brought about by that section for use as public market would be the smell, the risk to health, increase in crime rate. Consequential benefits to the remaining land would be property value would rise because its now a commercial area. FMV consequential damages + consequential benefits. Consequential benefits cannot exceed CD. So if you have 10p CD and 10k CB, whats considered is only 10p in CB. Unjust enrichment.

Provincial Government of Rizal v. Caro de Araullo, 58 Phil. 308 (1933)

The value of the property taken by eminent domain should be fixed as of the date of the proceedings, and with reference to the loss the owner sustains, considering the property in its condition and situation at the time it is taken, and not as enhanced by the purpose for which it is taken. Our law says compensation shall be just and, to be exactly just, the compensation should be estimated as of the time of the taking.

Atty. Melo:

Value of JC is computed from time of entry

In this case, property increased in value because of the expropriation.

When is there taking/entry?

Republic v. vda. de Castellvi, 58 SCRA 336 (1974)

Elements of taking: (1) expropriator must enter a private property; (2) entrance must be for more than a momentary period; (3) entry into the property should be under warrant or color of legal authority; (4) the property must be devoted to a public use or otherwise informally appropriated or injuriously affected; and (5) the utilization of the property for public use must be in such a way as to oust the owner and deprive him of all beneficial enjoyment of the property.

The word momentary, when applied to possession or occupancy of real property, should be construed to mean a limited period not indefinite or permanent.

Mere notice of intention to expropriate cannot bind landowner; expropriation must be commenced in court.

Atty. Melo:

What constitutes taking? Physical taking which is not for mere momentary basis (momentary ex: army platoon on the way to Basilan camps in your land for a day thats not taking). Yearly term of the lease is still momentary

Taking must be under warrant or color of title

So (1) physical taking and entry must (2) not be for momentary period of time and (3) taking is under warrant or color of legal authority (4) taking for public use (5) taking deprives or ousts owner from all beneficial use of the property. When PAF was leasing the land, it was paying rent a benefit of ownership. Taking in contemplation of ED began when lease was not renewed and the government persisted in occupying the land.

Difference here, if you start from beginning of lease, value of property was only 20c/sqm at time complaint was filed, 15/sqm.

Export Processing Zone Authority v. Dulay, 149 SCRA 305 (1987)

Just compensation means the equivalent for the value of the property at the time of its taking. Anything beyond that is more and anything short of that is less, than just compensation. It means a fair and full equivalent for the loss sustained, which is the measure of the indemnity, not whatever gain would accrue to the expropriating entity.

Provisions of PD Nos. 76, 464, 794 and 1533 on just compensation are unconstitutional and void; the Court has the power to determine just compensation and to appoint commissioners for the purpose. The method of ascertaining just compensation under the aforecited decrees constitutes impermissible encroachment on judicial prerogatives, it tends to render the court inutile in a matter which under the Constitution is reserved to it for final determination. Thus, although in an expropriation proceeding the court technically would still have the power to determine the just compensation for the property, following the applicable decrees, its task would be relegated to simply stating the lower value of the property as declared either by the owner or the assessor. As a necessary consequence, it would be useless for the court to appoint commissioners under Rule 67. x x

Spaced out and didnt take down notes oops, sorry

Although there are commissioners to determine value of JC, it is the court which will approve or deny the report. Court finally decides everything.

City of Manila v. Corrales, 32 Phil. 85 (1915)

In taking private property for public use, under the power of eminent domain, the person whose property is thus taken should be paid the reasonable market value for the same. The owners of property should not take advantage of the necessity of the public for the purpose of requiring the government to pay more than their property is worth; neither should the government be permitted to take the property of private persons at a less price than it is reasonably worth at the time of the expropriation. When we speak of the market value of property taken under the power of eminent domain, we mean the value which purchasers generally would pay for it. We do not mean what a purchaser would pay who had no particular object in view in purchasing and no definite plan as to the use to which to put it. The owner has a right to its value for the use for which it would bring the most in the market.

The owner is entitled to recover the value of the land at the time it was expropriated. He should not be charged with the expense necessary to put the property so taken in the condition in which the public desires to use it.

Benguet Consolidated, Inc. v. Republic, 143 SCRA 466 (1986)

The filing of expropriation proceedings recognizes the fact that the petitioners property is no longer part of the public domain. The power of eminent domain refers to the power of government to take private property for public use. If the mineral claims are public, there would be no need to expropriate them. Mineral claims of the petitioner are not being transferred to another mining company or to a public entity interested in the claims as such. The land where the mineral claims were located is needed for the PMA, a public use completely unrelated to mining. The fact that the location of a mining claim has been perfected does not bar the governments exercise of its power of eminent domain. The right of eminent domain covers all forms of private property, tangible or intangible, and includes rights which are attached to the land.

After party whose mineral land is being expropriated has shifted its position to the issue only of just compensation, it cannot later claim that its motion to dismiss (which operates as an answer in expropriation cases) should have been resolved first before entry of condemnation order.

Atty. Melo:

Here we see the two-step procedure of expropriation. Benguet first opposed governments right to expropriate. Then in second stage, it did not present evidence what JC is proper. Maybe counsel wary that by presenting evidence for JC, it is deemed abandonment of MTD. But given nature of ED/Expropriation, shouldve presented evidence.

Atty. Melos lecture:

An appeal of decisions, whether order of expropriation or filing just compensation, will not delay or hold taking in abeyance. As long as amount is deposited, taking may be done. Of course you can file for TRO but thats another thing.

For instance, there are conflicting claims on the property. Property sought to be expropriated claimed by two different people. Court will proceed with expropriation case and hold JC with whoever will be adjudged proper recipient. Something like an interpleader goes on.

For instance, there is a decision, JC determined, theres taking already, nominal deposit, property already in possession of government but government does not pay JC. Can you say property will be returned to you? No, even though JC is not paid, it is not necessarily a ground for return of the property. Its only a ground for asking for interest or damages for non-payment.

Can you execute the order or decision awarding JC? No, you cannot execute against public funds. EXCEPT: Coscolluela case. There was a public road project. There was taking, finding of JC, no payment for a long time (6/7y) so LO tried to execute on the funds of the project (DPWH). SC said that the road had earnings (from toll), and since there was earning, appropriations for project (for the expropriation of private lands), there were funds earmarked for payment of JC and this is what you can execute the judgment against. Either earnings from public use or what has been appropriated under the law. If there is no appropriation by Congress, you cannot execute.

Rule 68

Foreclosure of Real Estate Mortgage

Section 1. Complaint in action for foreclosure.In an action for the foreclosure of a mortgage or other encumbrance upon real estate, the complaint shall set forth the date and due execution of the mortgage; its assignments, if any; the names and residences of the mortgagor and the mortgagee; a description of the mortgaged property; a statement of the date of the note or other documentary evidence of the obligation secured by the mortgage, the amount claimed to be unpaid thereon; and the names and residences of all persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage, all of whom shall be made defendants in the action.

Section 2. Judgment on foreclosure for payment or sale.If upon the trial in such action the court shall find the facts set forth in the complaint to be true, it shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as approved by the court, and costs, and shall render judgment for the sum so found due and order that the same be paid to the court or to the judgment obligee within a period of not less than ninety (90) days nor more than one hundred twenty (120) days from the entry of judgment, and that in default of such payment the property shall be sold at public auction to satisfy the judgment.

Section 3. Sale of mortgaged property; effect.When the defendant, after being directed to do so as provided in the next preceding section, fails to pay the amount of the judgment within the period specified therein, the court, upon motion, shall order the property to be sold in the manner and under the provisions of Rule 39 and other regulations governing sales of real estate under execution. Such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof, and when confirmed by an order of the court, also upon motion, it shall operate to divest the rights in the property 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.

Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property unless a third party is actually holding the same adversely to the judgment obligor. The said purchaser or last redemptioner may secure a writ of possession, upon motion, from the court which ordered the foreclosure.

Section 4. Disposition of proceeds of sale.The amount realized from the foreclosure sale of the mortgaged property shall, after deducting the costs of the sale, be paid to the person foreclosing the mortgage, and when there shall be any balance or residue, after paying off the mortgage debt due, the same shall be paid to junior encumbrancers in the order of their priority, to be ascertained by the court, or if there be no such encumbrancers or there be a balance or residue after payment to them, then to the mortgagor or his duly authorized agent, or to the person entitled to it.

Section 5. How sale to proceed in case the debt is not all due. If the debt for which the mortgage or encumbrance was held is not all due as provided in the judgment, as soon as a sufficient portion of the property has been sold to pay the total amount and the costs due, the sale shall terminate; and afterwards, as often as more becomes due for principal or interest and other valid charges, the court may, on motion, order more to be sold. But if the property cannot be sold in portions without prejudice to the parties, the whole shall be ordered to be sold in the first instance, and the entire debt and costs shall be paid, if the proceeds of the sale be sufficient therefor, there being a rebate of interest where such rebate is proper.

Section 6. Deficiency judgment.If upon the sale of any real property as provided in the next preceding section there be a balance due to the plaintiff after applying the proceeds of the sale, the court, upon motion, shall render judgment against the defendant for any such balance for which, by the record of the case, he may be personally liable to the plaintiff, upon which execution may issue immediately if the balance is all due at the time of the rendition of the judgment; otherwise, the plaintiff shall be entitled to execution at such time as the balance remaining becomes due under the terms of the original contract, which time shall be stated in the judgment.

Section 7. Registration.A certified copy of the final order of the court confirming the sale shall be registered in the registry of deeds. If no right of redemption exists, the certificate of title in the name of the mortgagor shall be cancelled, and a new one issued in the name of the purchaser.

Where a right of redemption exists, the certificate of title in the name of the mortgagor shall not be cancelled, but the certificate of sale and the order confirming the sale shall be registered and a brief memorandum thereof made by the registrar of deeds upon the certificate of title. In the event the property is redeemed, the deed of redemption shall be registered with the registry of deeds, and a brief memorandum thereof shall be made by the registrar of deeds on said certificate of title.

If the property is not redeemed, the final deed of sale executed by the sheriff in favor of the purchaser at the foreclosure sale shall be registered with the registry of deeds; whereupon the certificate of title in the name of the mortgagor shall be cancelled and a new one issued in the name of the purchaser.

Section 8. Applicability of other provisions.The provisions of sections 31, 32 and 34 of Rule 39 shall be applicable to the judicial foreclosure of real estate mortgages under this Rule insofar as the former are not inconsistent with or may serve to supplement the provisions of the latter.

Atty. Melos lecture:

In a complaint for judicial foreclosure, what must you state?

Complaint in action for foreclosure (Sec 1)

In an action for the foreclosure of a mortgage or other encumbrance upon real estate, the complaint shall set forth:

The date and due execution of the mortgage;

Its assignments, if any;

The names and residences of the mortgagor and the mortgagee;

A description of the mortgaged property;

A statement of the date of the note or other documentary evidence of the obligation secured by the mortgage, the amount claimed to be unpaid thereon; and

The names and residences of all persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage, all of whom shall be made defendants in the action.

If as mortgagee, you win. What will the court award you?

Judgment on foreclosure for payment or sale (Sec 2)

If upon the trial in such action the court shall find the facts set forth in the complaint to be true it shall render a judgment containing the following matters:

Ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as approved by the court, and costs;

A judgment for the sum so found due;

An order that the amount found due be paid to the court or to the judgment obligee within a period of not less than 90 days nor more than 120 days from the entry of judgment; and

In default of such payment property shall be sold at public auction to satisfy the judgment.

Sale of mortgaged property; effect (Sec 3)

When the defendant, after being directed to do so as provided in the next preceding section, fails to pay the amount of the judgment within the period specified therein, the court, upon motion, shall order the property to be sold in the manner and under the provisions of Rule 30 and other regulations governing sales of real estate under execution.

Such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof, and when confirmed by an order of the court, also upon motion, it shall operate to divest the rights in the property 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.

Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property unless a third party is actually holding the same adversely to the judgment obligor.

Said purchaser or last redemptioner may secure a writ of possession, upon motion, from the court which ordered the foreclosure

Procedure for judicial foreclosure

1. Complaint

2. Judgment

Pay within 90-120d

If not auction sale

3. Confirmation

4. Writ of possession

Does judicial foreclosure pertain only to real estate?

No, Seno v. Pestolante

Seno v. Pestolante, 103 Phil. 414 (1958)

Although the purpose of an action is to recover an amount plus interest which comes within the original jurisdiction of the Justice of the Peace court, yet when said action involves the foreclosure of a chattel mortgage covering personal properties valued at more than P2,000, the action should be instituted before the CFI.

Of course a chattel mortgage may be foreclosed judicially, following substantially the same procedure in the rule. When the mortgagor refuses to surrender possession of the mortgaged chattel, an action of judicial foreclosure necessarily arises, or one of replevin to secure possession as a preliminary step to the sale.

Atty. Melo:

Chattel mortgage may be subject to judicial foreclosure

Limpin v. IAC, 166 SCRA 87 (1988)

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 PNB or a bank or banking institution.

Where a mortgage is foreclosed extrajudicially, Act No. 3135 grants to the mortgagor the right of redemption within one year from the registration of the Sheriffs certificate of foreclosure sale.

No equivalent right of redemption exists where the foreclosure is judicially effected. 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 are those granted by the charter of the PNB and the General Banking Act. 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 year, counted from the date of registration of the certificate of sale in the Registry of Property.

Section 2, Rule 68 (now 69) provides the mortgagors equity of redemption which may be exercised even beyond the 90-day period provided it be before the order of confirmation of the sale. After such order of confirmation, no redemption can be effected any longer.

Atty. Melo:

In judicial foreclosure, there is no right of redemption, only an equity of redemption.

Equity of redemption is available only before confirmation of the sale. Once sale is confirmed and registered, equity of redemption is no longer available.

Right of redemption is a right granted by law (such as in EJF under Act No. 3135)

No law in judicial foreclosure granting such right of redemption.

Equity fairness. If debtor is granted opportunity to pay, junior encumbrancers also are given the opportunity.

All mortgagees must be impleaded, otherwise they will not be bound by the judgment. Law does not say when they should redeem but this will be tempered by the courts based on circumstances.

Quimson v. PNB, 36 SCRA 26 (1970)

The mortgagor has the right, within the year after the sale of the real estate as a result of foreclosure of a mortgage by PNB to redeem the property.

Redemption from execution sales under ordinary judgments pursuant to sec 30, Rule 39 should be made within 12 months from the registration of the sale and has uniformly applied the same rule to sales upon extrajudicial foreclosure of registered lands.

The ruling is applicable when the property involved is registered land whether the sale is an execution sale or a foreclosure sale. There is no valid reason why the rule in foreclosure of mortgages of registered real estate where the mortgagee is the PNB should not be the same.

When it comes to the period of redemption of registered real estate sold on execution whether in foreclosure proceedings or in ordinary cases, actual notice of the sale by the judgment debtor or redemptioner is immaterial, the period must always be computed from the date of registration of the corresponding auction sale. The rule laid down is precisely for the person entitled to exercise the right of redemption, who necessarily is the owner of the property sold and not any third party.

Mortgagor shall have the right to redeem the property by paying the amount fixed by the court in the order of execution, with interest thereon at the rate specified in the mortgage, and all costs and other judicial expenses incurred by reason of execution and sale and for the custody of said property, not the amount for which the property was acquired at the foreclosure sale.

Atty. Melo:

Period of redemption is counted from registration of sale but in this case, there was an agreement between the bank and Quimson which did not contravene the spirit of the law so it was allowed.

Ramos v. Maalac and Lopez, 89 Phil. 270 (1951)

The issuance of writ of possession in a foreclosure proceeding is not an execution of judgment within the purview of section 6, Rule 39, but is merely a ministerial and complementary duty of the court to put an end to the litigation which the court can undertake even after the lapse of five years, provided the statute of limitations and the rights of third persons