Remedial Law Review 1

Last Minute Reviewer on Provisional Remedies and Special Civil Actions

I.

Upon failure of Linda to pay the promissory note for P500,000 which he
executed in favor of Marie, the latter filed a complaint for sum of money with
application for the issuance of a writ of preliminary attachment alleging therein
that Linda is about to dispose of her properties in fraud of her creditors.

a) May the court issue the writ immediately upon the filing of the complaint
and before service of summons?
b) Is hearing on the application necessary?
c) If the writ was issued and Linda filed a motion to quash the attachment,
may the motion be granted ex parte?

Suggested answers:

a) Yes, because S1 R57 provides that attachment may issue at the

commencement of the action.
b) No, because S2 R57 provides that the order of attachment may be issued ex
parte. The ex parte issuance of the writ would be justified since there was an
allegation that Linda is about to fraudulently dispose of her property.
c) No, because under S12 and S13 R57, notice and hearing is required before
an attachment is quashed or discharged upon motion.

II.

a) P filed a complaint against B with the RTC of Las Pinas City. Alleging
extreme urgency, grave injustice, and irreparable damage, P applied ex parte
with the executive judge for the issuance of a 72-hour TRO. The executive
judge issued the TRO effective 72 hours from issuance. The case was
forthwith raffled to Branch 256 of the RTC. On the 72nd hour and at the
conclusion of the summary hearing in which the parties were present, the
RTC judge issued a TRO effective 20 days from issuance. Was there any
defect in the TRO issued?

b) In a dispute between a developer and the landowner, the trial court issued a
status quo ante order directing the developer to post security guards on the
property subject of the joint-venture agreement. Was the issuance of the
status quo ante order proper?

Suggested answers:

a) Yes. A TRO’s validity should be for 20 days only, inclusive of the

original 72 hours. Since the original 72 hours had lapsed, the TRO issued herein
can be valid for only 17 days. (S5 R58)
 b) No. The purpose of a status quo ante order is to maintain the status
quo ante, that is, the last actual, peaceable, uncontested state of things prior to the
controversy. Here the last actual, peaceable, uncontested status prior to the
controversy was that there were no security guards in the premises. Furthermore, a
status quo ante order by its nature cannot require the doing (or undoing) of acts.
(Mega-World Properteis & Holdings Inc. vs. Majestic Finance & Investment Co.,
December 9, 2015)
Alternate question for Preliminary Injunction
A complaint-affidavit was filed with the Office of the Ombudsman (OMB)
against Mayor Jejomar Binay Jr. charging him with plunder and violation of the
Anti-Graft Law in connection with the construction of the Makati City Hall
Parking Building. The OMB issued an order placing Binay under preventive
suspension without pay for not more than 6 months during the pendency of the
investigation. Binay filed a petition for certiorari with the Court of Appeals (CA)
seeking the nullification of the preventive suspension order and praying for the
issuance of a TRO and/or writ of preliminary injunction to enjoin its
implementation. The CA issued a TRO enjoining the implementation of the
preventing suspension order. The OMB argued that the CA cannot issue the TRO,
invoking the first paragraph of Section 14 of R.A. No. 6770 or the Ombudsman
Act which reads as follows:
Section 14. Restrictions. - No writ of injunction shall be issued by any court to delay an
investigation being conducted by the Ombudsman under this Act, unless there is a prima facie
evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the
Ombudsman.

Was the OMB correct?

Suggested answer:

No. The OMB is not correct. When Congress passed the first paragraph of
Section 14, RA 6770 and, in so doing, took away from the courts their power to
issue a TRO and/or writ of preliminary injunction to enjoin an investigation
conducted by the Ombudsman, it encroached upon this Court’s constitutional rule-
making authority under Section 5(5), Article VIII. Clearly, these issuances, which
are, by nature, provisional reliefs and auxiliary writs created under the provisions
of the Rules of Court, are matters of procedure which belong exclusively within
the province of this Court. R58 did not create, define, and regulate a right but
merely prescribed the means of implementing an existing right since it only
provided for temporary reliefs to preserve the applicant’s right in esse which is
threatened to be violated ruing the course of a pending litigation. Hence the first
paragraph of Section 14 of RA 6770 is unconstitutional and void. (Carpio Morales
vs. Court of Appeals, November 10, 2015)

The policy against the issuance of provisional injunctive writs by courts

other than the Supreme Court to enjoin an investigation conducted by the Office of
the Ombudsman under the first paragraph of RA 6770 is declared INEFFECTIVE
until the Court adopts the same as part of the rules of procedure through an
administrative circular duly issued therefor.
 III.

P files an action for collection of P2 million against D. During the pendency

of the case, P learns that D is disposing of some of his property and that the rest of
D’s property is deteriorating rapidly.
a) May P apply for the appointment of a receiver of D’s property?
b) Judgment was rendered in favor of P and the same becomes final and
executory. May P apply for the appointment of a receiver of D’s property?
Suggested answers:
a) No. A receiver may be appointed only over property which is the
subject of the action or proceeding. (S1 R59). Where the action is merely to obtain
a money judgment on unpaid credits and not to enforce a lien upon specific
property or funds in the defendant’s possession, the appointment of a receiver is
improper. (Bonaplata vs. Ambler, 2 Phil. 392)
b) Yes. Under S41 R39 on execution, the court may appoint a receiver of
the property of the judgment obligor, especially where the defendant has been
disposing of or concealing his property to avoid its application to the satisfaction of
the judgment (Philippine Trust Co. vs. Santamaria, 53 Phil. 463).

IV.
a) Defendant Makati Textile Mills obtained a loan from a finance company and
in order to secure the loan executed a chattel mortgage in favor of the lender
over the textile drying machines which are located in its premises. For
failure of Defendant to pay, the Plaintiff finance company seized under a
writ of replevin the textile machines in its premises. The Defendant objected
on the ground that the textile machines are real property under
Article 415(5) of the Civil Code. Is the Defendant’s objection valid?

b) Husband Masiba was ordered by the court to give support pendent lite to
wife Kawawa and minor son, Munti, based on Kawawa’s testimony
supported by her documentary evidence that Masiba has failed to give a
single centavo of support in spite of constant requests and demands for
support.
Masiba filed an appeal questioning the order stating that there were no
hearings and reception of evidence before the order was issued and that
given his day in court, he could prove beyond doubt that his wife is much
richer than he is and could well afford to support herself and their son.
Resolve the appeal. Explain.

Suggested answers:
a) No. When Defendant executed a chattel mortgage over the machines,
it treated the same as personal property. Hence, the Defendant is estopped from
contending that the same are real property. (Makati Leasing & Finance Corp. vs.
Wearever Textile Mills, G.R. No. 58469, May 16, 1983).
 b) The appeal should be dismissed. No appeal may be taken from an
interlocutory order. (S1[b] R41). Here the order granting support pendent lite is an
interlocutory order since it does not completely dispose of the case. The court still
has to render its judgment in the principal case.

Alternate question on Replevin

Plaintiff bank filed a collection of a sum of money case (P350,000) against

an auto loan borrower with the MeTC of Pasay City. The Plaintiff also applied for
a writ of replevin and was able to seize the car valued at P500,000. The Defendant
filed amotion to dismiss on the ground that jurisdiction should be with the RTC.
Should the defendant’s motion to dismiss be granted?

Suggested answer:

No. The SC held that in a sum of money case, jurisdiction is determined by

the amount of the claim not by the value of the vehicle seized under the writ of
replevin. (Fernandez vs. International Corporate Bank, October 7, 1999)

V.

a) Lessee Zuellig Pharma filed an action for interpleader against Petitioner and
Philippine Bank of Communications to determine who between them is
entitled to the rental payments. Petitioner failed to file its answer and was
declared in default upon motion of Zuellig. Petitioner argued that Zuellig
filed the interpleader case to compel Petitioner and the Philippine Bank of
Communications to litigate their claims. Thus, “[d]eclaring a claimant in
default would ironically defeat the very purpose of the suit.” Is the argument
of Petitioner correct?

b) Resources Unlimited, a well-financed foreign corporation would like to

engage in a tax-exempt business venture in the Philippines. Its management,
however, entertains some doubts as to whether it could, in the light of the
provisions of the Investments Incentive Act. To resolve all doubts and to
obtain a declaration of its rights and duties under the said law, it filed a
petition for declaratory relief with the Supreme Court. How will you resolve
said petition? Discuss.

c) Respondents mortgaged their land to CHF Inc. Because Respondents had

defaulted in their obligations, CHF initiated foreclosure proceedings but he
same was restrained because of an injunction suit filed by Respondents. The
Respondents then filed an action for declaratory relief with the CFI of
Caloocan City seeking a declaration of the extent of their actual
indebtedness to CHF. CHF was declared in default and in due course
judgment was rendered fixing the Respondents’ liability at P15 million and
authorizing them to consign the amount in court. No appeal was interposed
from the decision. Subsequently, CHF initiated anew foreclosure
proceedings. Respondents argued that the same was barred by the judgment
in the declaratory relief case. Is the Respondents’ argument meritorious?
Suggested answers:

a) No. In this case, Zuellig filed the interpleader case to extinguish its
obligation to pay rent. Its purpose in filing the interpleader case “was not
defeated” when the Makati Trial Court declared Petitioner in default. At any
rate, an adverse claimant in an interpleader case who fails to answer within
the required period may, on motion, be declared in default pursuant to S5
R62. The consequence of the default is that the court may “render judgment
barring [the defaulted claimant] from any claim in respect to the subject
matter.” The Rules would not have allowed claimants in interpleader cases
to be declared in default if it would “ironically defeat the very purpose of the
suit.” (Lui Enterprises vs. Zuellig Pharma, March 12, 2014)

b) I would resolve to dismiss the petition for lack of jurisdiction.

It is the Regional Trial Court, not the Supreme Court, which has jurisdiction
since an action for declaratory relief is incapable of pecuniary estimation.
(Office of the Ombudsman vs. Ibay, G.R. No. 137538, September 3, 2001)

Even if the petition were filed in the RTC, it should still be dismissed. In
declaratory relief, there must be an actual justiciable controversy or the
ripening seeds of one between persons whose interests are adverse.
(Tolentino vs. Board of Accountancy, G.R. No. L-3062,
September 28, 1951). A petition for judicial relief cannot be used to get an
advisory opinion from the court.

c) No. An action for declaratory relief by a person interested under a deed or

written instrument should be filed before break or violation of the deed.
Where the contract has already been breached prior to the filing of an action
or declaratory relief, the court can no longer assume jurisdiction over the
action. Here the loan contract had already been breached prior to the filing
of the declaratory relief petition. Hence, the judgment in the declaratory
relief case was a nullity and cannot stand as a bar to the foreclosure
proceeding. (Tambunting vs. Baello, September 16, 2005)

VI.

a) Esteves filed an election protest with the RTC of Baler, Aurora. Bitong
moved to dismiss the election protest because it did not specify the precincts
were fraud and irregularities were allegedly committed. The motion to
dismiss was denied by the RTC. Bitong assailed the denial in a petition for
certiorari and prohibition with the COMELEC. The COMELEC (2nd
Division) eventually nullified the RTC’s denial order and dismissed Esteves’
election protest. Esteves then filed a petition for certiorari and prohibition
under Rule 65 with the SC assailing the 2nd Division’s dismissal order. May
the petition of Esteves be dismissed?
 b) The Energy Regulatory Commission (ERC) issued the Rules for Setting the
Electric Cooperatives’ Wheeling Rates (RSEC-WR) and Resolution No. 14
which set the elective cooperatives’ wheeling rates and allowed the electric
cooperatives to collect contributions from members from capital
contributions. The Petitioners, who are members of electric cooperatives,
filed a special civil action for certiorari with the Supreme Court to set aside
Resolution No. 14. Was the resort to a special civil action for certiorari
proper?

Suggested answers:

a) Yes. Under Article IX-C, Section 3 of the Constitution, an aggrieved

party must first file a motion for reconsideration of a resolution of a Division to the
COMELEC en banc. This requirement of a motion for reconsideration is
mandatory and jurisdictional in invoking the power of review of the High Court.
Failure to abide by this requirement constitutes a good ground for the dismissal of
the petition. (Esteves vs. Sarmiento, G.R. No. 182374, November 11, 2008)

b) No. A special civil action for certiorari, also petitions for certiorari
and prohibition, is directed only to tribunals that exercise judicial or quasi-judicial
functions. The ERC did not exercise judicial or quasi-judicial functions in issuing
and implementing the RSEC-WR and Resolution No. 14. It was not called upon to
adjudicate the rights of contending parties or to exercise, in any manner, discretion
of a judicial or quasi-judicial nature. Instead, RSEC-WR and Resolution No. 14
were done in the exercise of the ERC’s quasi-legislative and administrative
functions. It was in the nature of subordinate legislation, promulgated in the
exercise of its delegated power. Quasi-legislative power is exercised by
administrative agencies through the promulgation of rules and regulations within
the confines of the granting statute and the doctrine of non-delegation of powers
flowing from the separation of the branches of the government. Particularly, the
ERC applied its rule-making power as expressly granted by Republic Act No. 9136
(Electric Power Industry Reform Act of 2001” or EPIRA). (Rosales vs. Energy
Regulatory Commission, April 5, 2016).

VII

a) Where should a special civil action for certiorari seeking to set aside an
interlocutory order of the RTC in a local tax ax case be filed? With the Court
of Tax Appeals?

b) Antonio, a resident of Pampanga, filed suit in the Regional Trial Court of

Manila on a promissory note executed by Andres, a resident of Cavite. The
latter moved to dismiss on the ground “that the venue is improperly laid.”
The motion was denied and Andres wants to question the denial before a
higher tribunal.

If you were Andres’ lawyer, should your petition be for Certiorari,

Prohibition, or for Mandamus? Explain.
 c) P filed a collection case for P250,000 against D before the Regional Trial
Court of Imus, Cavite. D filed a motion to dismiss on the ground of lack of
jurisdiction. The RTC denied the motion to dismiss and set the case for pre-
trial. D filed a special civil action for mandamus with the Court of Appeals
to compel the RTC to dismiss the case. Would the mandamus suit prosper?

Suggested answers:

a) The Court of Tax Appeals. The power of the CTA includes that of
determining whether or not there has been grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the RTC in issuing an interlocutory
order in cases falling within the exclusive appellate jurisdiction of the tax court. It,
thus, follows that the CTA, by constitutional mandate, is vested with jurisdiction to
issue writs of certiorari in these cases. Since appellate jurisdiction over private
respondents’ complaint for tax refund is vested in the CTA, it follows that a
petition for certiorari seeking nullification of an interlocutory order issued in the
said case should, likewise, be filed with the same court. To rule otherwise, would
lead to an absurd situation where one court decides an appeal in the main case
while another court rules on an incident in the very same case. (City of Manila vs.
Grecia-Cuerdo, 715 SCRA 182 [2014]).

b) If I were Andres’ lawyer, my petition would be for Prohibition.

The Supreme Court in Enriquez vs. Macadaeg, 84 Phil. 674, has held that
the remedy where a motion to dismiss is improperly denied is prohibition.

Here the motion to dismiss was improperly denied. Under Rule 4, venue of
personal actions is the place where the plaintiff or the defendant resides, at the
plaintiff’s election but here the case was filed in Manila where neither the plaintiff
nor the defendant resides. Hence, a petition for prohibition would be proper.

(Note: It is submitted that certiorari may also be availed of in order to set aside the
order denying the motion to dismiss.)

c) Yes. While the general rule is that mandamus does not lie to compel
the performance of a discretionary duty, where such discretion however can be
legally exercised in only one way and it refuses to act in such manner, mandamus
will like to compel the court to exercise its discretion in accordance with law.
(Regalado, Remedial Law Compendium) Here it is patently clear that the RTC has
no jurisdiction over a claim for P250,000 and that the discretion can only be
exercised in favor of dismissing the case. Hence the mandamus suit will prosper.

VIII

a) Petitioner Fabian was appointed Election Registrar of Municipality of

Sevilla supposedly to replace the respondent Election Registrar Pablo who
was transferred to another municipality without his consent and who refused
to accept his aforesaid transfer, much less to vacate his position in Sevilla as
election registrar, as in fact he continued to occupied his aforesaid position
 and exercise his functions thereto. Petitioner Fabian then filed a petition for
mandamus against Pablo but the trial court dismissed Fabian’s petition
contending that quo warranto is the proper remedy. Is the court correct in its
ruling? Why?

b) Petitioners and Respondents are siblings. Respondents filed an action for

partition against Petitioners. The action was dismissed for failure to
prosecute per S3 R17. The dismissal became final and unappealable.
Subsequently, the Petitioners filed an action for quieting of tile against the
Respondents over the same lot subject of the partition suit. The court denied
the action for quieting of title but granted Respondents’ counter claim for
partition.

The Petitioners contend that the trial court should not have granted the
counterclaim for partition as the same was barred by res judicata. Is the
counterclaim for partition barred by res judicata?

Suggested answers:

a) Yes. The court is correct in its ruling.

Where the respondent merely excludes the petitioner from an office without
usurping, intruding into, or unlawfully holding the office, the proper remedy is
mandamus. If the respondent however claims any right to the office and usurps,
intrudes into, or unlawfully holds it against the petitioner, the proper remedy would
be quo warranto. (Burguete vs. Mayor, 94 Phil. 930).

Here, Pablo refused to vacate his position and continued to hold it against
Fabian. Hence, quo warranto not mandamus is the proper remedy.

b) No. Dismissal with prejudice under S3 R17 cannot defeat the right of
a co-owner to ask for partition at any time, provided that there is no actual
adjudication of ownership of shares yet. Between dismissal with prejudice under
S3 R17 and the right granted to co-owners under Art. 494 of the Civil Code, the
latter must prevail. To construe otherwise would diminish the substantive right of a
co-owner through the promulgation of procedural rules. Such a construction is not
sanctioned by the principle that a substantive law cannot be amended by a
procedural rule. This finds further support from Art. 496 of the Civil Code which
provides that “partition shall be governed by the Rules of Court insofar as they are
consistent with this Code.” (Quintos vs. Nicolas, 16 June 2014)

IX

The Republic of the Philippines, through the Department of Public Works

and Highways (DPWH) filed with the RTC a complaint for the expropriation of the
parcel of land owned by Jovito. The land is to be used as an extension of the
national highway. Attached to the complaint is a bank certificate showing that
there is, on deposit with the Land Bank of the Philippines, an amount equivalent to
the assessed value of the property. Then DPWH filed a motion for the issuance of a
writ of possession. Jovito filed a motion to dismiss the complaint on the ground
that there are other properties which would better serve the purpose.

a) Will Jovito’s motion to dismiss prosper? Explain.

b) As judge, will you grant the writ of possession prayed for by DPWH?
Explain.

Suggested answers:

a) Jovito’s motion to dismiss will not prosper. The Supreme Court has
held that the defendant in an expropriation case cannot file a motion to dismiss but
should raise his objections in the answer. (Masikip vs. City of Pasig, Jan. 23, 2006)

b) As judge, I will not grant the writ of possession prayed for. In case of
expropriation for national government infrastructure projects, the law requires that
the government, in order that it will have the right to enter or take possession,
should immediately pay the owner of the property 100% of the market value of the
property. Here what was done was only to make a deposit of an amount equivalent
to the assessed value. (R.A. No. 8974, Republic vs. Gingoyon, Dec. 19, 2005)

D a non-resident borrowed P1,000,000 from C and to secure payment

thereof, D executed a real estate mortgage over his property in Tagaytay City in
favor of C. D failed to pay the loan so C filed a complaint for foreclosure against D
with the RTC of Tagaytay City. C’s application for leave to effect extraterritorial
service of summons by publication in a newspaper of general circulation was
granted by the RTC. In due course, the court rendered a judgment on foreclosure.

a) Is the judgment on foreclosure valid?

b) Assume that the foreclosure sale did not yield sufficient proceeds to
satisfy the judgment award in favor of C. C then moved for deficiency
judgment against D which the court granted. Is the deficiency judgment
valid?

Suggested answers:

a) Yes, the judgment on foreclosure is valid. An action for foreclosure of a

real estate mortgage is an action quasi in rem since it is directed against the
property itself. Hence extraterritorial service of summons under S15 R14 may be
had?

b) No, the deficiency judgment is not valid. The deficiency judgment is in

personam because it is directed only against the mortgagor-debtor. Under S15 R14
extraterritorial service of summons upon a non-resident can be made only in
actions or proceedings in rem or quasi in rem. Hence the court cannot acquire
jurisdiction over the person of D and the deficiency judgment rendered against him
would be void.
 XI

a) D stayed in P’s land by the latter’s tolerance. P then asked D to vacate the
land as he was going to reside therein. D refused. Should P file an action for
forcible entry or unlawful detainer?

Suggested answer:

Unlawful detainer. D’s possession was initially lawful albeit only through
P’s tolerance. It became unlawful after D refused to vacate after being asked to do
so by P. Where a person is allowed to stay in another’s land or building by
tolerance, there is an implied agreement that the occupant will leave once the
owner desires to make use of the premises.

b) Union Bank as the owner of the Maunlad Shopping Mall entered into a
contract to sell over the mall in favor of Maunlad homes Inc. The price was
payable in installments and upon full payment Union Bank would executed a
deed of absolute sale in favor of Maunlad Homes. Under the contract, in
even tof rescission due to failure to pay or to violation of the contract,
Maunlad Homes would be immediately required to vacate the property and
turn over possession to Union Bank. Maunlad Homes failed to pay
succeeding installments and so Union Bank served a notice of rescission and
then a notice to pay and vacate which Maunlad Homes did not heed. Union
Bank filed an action for unlawful detainer with the MeTC against Maunlad
Homes. Maunlad Homes raised the defense that it still had the right to
possess as it was still was the owner of the mall because of Union Bank’s
failure to reserve ownership in the contract. The MeTC dismissed the action
for lack of jurisdiction. It found that Union Bank’s cause of action was based
on a breach of contract and that both parties are claiming a better right to
possess the property based on their respective claims of ownership of the
property. The MeTC ruled that the appropriate action to resolve these
conflicting claims was an accion reivindicatoria, over which it had no
jurisdiction.

The RTC and The CA affirmed the MeTC’s decision. The CA additionally
held that Union Bank’s claim of possession is based on its claim of
ownership which in turn is based on its interpretation of the terms and
conditions of the contract, particularly, the provision on the consequences of
Maunlad Home’s breach of contract. The CA determined that Union Bank’s
cause of action is premised on the interpretation and enforcement of the
contract and the determination of the validity of the rescission, both of which
ware matters beyond the jurisdiction of MeTC. Therefore, it ruled that the
dismissal of the ejectment suit was proper.

Did the MeTC have jurisdiction of the case?

Suggested answer:

Yes. Despite Maunlad Homes’ claim of ownership of the property, the

MeTC retained is jurisdiction over the action; a defendant may not divest the
MeTC of its jurisdiction by merely claiming ownership of the property. Under S16
R70, “when the defendant raises the defense of ownership in his pleadings and the
question of possession cannot be resolved without deciding the issue of ownership,
the issue of ownership shall be resolved only to determine the issue of possession.”
In ejectment cases, the MeTC has the jurisdiction to preliminarily determine the
issue of ownership in order to determine the issue of possession.

The authority granted to the MeTC to preliminarily resolve the issue of

ownership to determine the issue of possession ultimately allows it to interpret and
enforce the contract or agreement between the plaintiff and the defendant. To deny
the MeTC jurisdiction over a complaint merely because the issue of possession
requires the interpretation of a contract will effectively rule out unlawful detainer
as a remedy. As stated, in an action for unlawful detainer, the defendant’s right to
possess the property may be by virtue of a contract, express or implied; corollarily,
the termination of the defendant’s right to possess would be governed by the terms
of the same contract. Interpretation of the contract between the plaintiff and the
defendant is inevitable because it is the contract that initially granted the defendant
the right to possess the property; it is this same contract that the plaintiff
subsequently claims was violated or extinguished, terminating the defendant’s
right to possess. (Union Bank vs. Maunlad Homes, Inc., G.R. No. 190071,
August 15, 2012)

c) On January 10, 1990, X leased the warehouse of A under a lease contract

with a period of five years. On June 8, 1996, A filed an unlawful detainer
case against X without a prior demand for X to vacate the premises.

Can X contest his ejectment on the ground that there was no prior demand
for him to vacate the premises?

Suggested answer:

Yes. X can contest his ejectment on the ground that there was no prior
demand for him to vacate the premises.

Under Article 1670 of the Civil Code, an implied new lease (tacita
reconduccion) arises if at the end of the lease, the lessee shall continue enjoying
the thing leased for 15 days with the acquiescence of the lessor, and unless a notice
to the contrary by either party has previously been given.

Here the lease contract had expired in January 1995 yet X continued to stay
in the premises without any notice to the contrary being given by A. A may
therefore be presumed to have acquiesced to X’s continued stay and an implied
new lease has therefore arisen. A demand to pay or comply with the conditions of
the lease and to vacate is therefore jurisdictional.
 d) A complaint for unlawful detainer was filed with the MTC by plaintiff on
December 24, 2008 which contained the following allegations: (1) Plaintiff
was in possession and control of subject property, however, sometime in
May 2007 she discovered that defendants have entered the subject property
and occupied the same; (2) Plaintiff demanded that they leave the premises.
The defendants requested for time to leave and she acceded to said request.
The defendants committed to vacate the subject property by end of May
2008; (3) Despite several repeated demands, defendants unjustifiably refused
to vacate the subject premises prompting the plaintiff to seek the assistance
of a lawyer who wrote them a formal and final demand letter in July 2008 to
vacate the premises and to pay reasonable compensation for their illegal use
and occupancy of the subject property. Does the MTC have jurisdiction over
the complaint?

Suggested answer:

No. 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.

The above complaint failed to allege a cause of action for unlawful detainer
as it does not describe possession by the defendants being initially legal or
tolerated by the plaintiff and which became illegal upon termination by the
plaintiff of such lawful possession. Plaintiff’s insistence that she actually tolerated
defendants’ continued occupation after her discovery of their entry into the subject
premises is incorrect. As she had averred, she discovered respondents’ occupation
in May 2007. Such possession could not have been legal from the start as it was
without her knowledge or consent, much less was it based on any contract, express
or implied. The possession of the defendant in unlawful detainer is originally legal
but became illegal due to the expiration or termination of the right to possess.
Where the complaint did not satisfy the jurisdictional requirement of a valid cause
for unlawful detainer, the municipal trial court had no jurisdiction over the case.

MTC clearly had no jurisdiction over the case as the complaint did not
satisfy the jurisdictional requirement of a valid cause for unlawful detainer. Since
the prescriptive period for filing an action for forcible entry has lapsed, petitioner
could not convert her action into one for unlawful detainer, reckoning the one-year
period to file her action from the time of her demand for respondents to vacate the
property. (Zacarias vs. Anacay, September 24 2014)

XII

a) P filed an action for recovery of possession of land against D. The RTC

decided in favor of P and after the judgment had become final and
executory the RTC, upon P’s motion, issued a writ of execution directing
the sheriff to place P in possession of the subject land. When the sheriff
 tried to evict D from the land, the latter refused to do so. May the RTC hold
D in indirect contempt?

Suggested answer:

No. The writ was not directed to D but to the sheriff who was directed to
deliver the property to P. As the writ did not command the judgment debtor to do
anything, he cannot be guilty of the acts described in Rule 71 which is
“disobedience of or resistance to a lawful writ, process, order, judgment or
command of any court.” The proper procedure is for the sheriff to oust D availing
the assistance of peace officers pursuant to Section 10(c) of Rule 39. (Lipata vs.
Tutaan, L-16643, 29 September 1983).

b) Nancio is a driver of the Chief of the Business Permit Division of Makati

City. One morning finding that the parking slot for his boss was occupied by
another car, Nancio looked for another parking space and parked his car in a
vacant parking slot. Unbeknownst to Nancio, the parking slot belonged to
Makati RTC Judge Frank. Judge Frank found his parking slot occupied and
because he had to spend a lot of time looking for a parking space, his
promulgation of decisions was delayed. Judge Frank issued a show-cause
order to Nancio to explain why he should not be cited for indirect contempt
for “improper conduct tending, directly or indirectly, to impede, obstruct, or
degrade the administration of justice.” Finding Nancio’s explanation
unsatisfactory, Judge Frank ordered Nancio to pay a fine of P1,000 and to be
imprisoned.

(1) Was Judge Frank’s order finding Nancio liable for indirect contempt
proper?
(2) Would your answer be different if there was a showing that Nancio knew
that the parking slot belonged to Judge Frank?

Suggested answers:

(1) No. The phrase “improper conduct tending, directly or indirectly, to

impede, obstruct, or degrade the administration of justice,” is so broad and general
that it encompasses a wide spectrum of acts that could constitute indirect contempt.
However, the act of Nancio in parking his car in the judge’s parking slot does not
fall under this category. There was no showing that Nancio acted with malice or
bad faith or that he was improperly motivated to delay the proceedings of the court
by parking in Judge Frank’s slot. We cannot also say that Nancio’s act constitutes
disrespect to the dignity of the court. (Inonog vs. Ibay, A.M. No. RTJ-09-2715, 28
July 2009)

(2) No, my answer would not be different. While Nancio’s act was improper,
in the absence of a showing that his motivation in parking in Judge Frank’s slot
was to delay the court proceedings, his act would not constitute indirect contempt.