REMEDIAL LAW REVIES FINALS HOMEWORK

1. Illustrate by example the use of modes of discovery. Assume a case and facts. Include in
the illustration, the consequences of the failure to comply with the modes of discovery.

RULES 23 AND 24
DEPOSITIONS
Deposition Pending Action under Rule 23
ILLUSTRATION: Juan dela Cruz (plaintiff) filed a complaint for Collection for sum of money
and Damages against Pedro Santos (defendant). Juan is of a belief that Maria Aquino (deponent)
possesses a material or relevant information that to support his claim and would eventually help
him in the case.

Q: What would be Juan’s remedy?

A: If Juan wants to depose Maria, and Pedro has not yet filed an answer, a deposition can be
taken with leave after the Pedro has been served with summons or jurisdiction over the property
subject of the action has been acquired. Moreover, Juan must obtain leave of court.
If Pedro has already filed an answer, Juan can depose Maria even without applying for leave of
court.
Legal basis: Section 1, Rule 23 – Deposition pending action can be taken –
a. With leave of court, after jurisdiction has been acquired or obtained over any defendant
or over property which is the subject of the action as the issues are not yet joined and disputed
facts are not yet clear or if a person is confined in a prison with leave of court only, on such
terms that the Court may prescribe.
b. Without leave of court, after an answer has been served.

Q: Assuming that Maria has a material and relevant information, is she considered as a witness
for Juan? What will be the use of Maria’s deposition?
A: No. Even if Juan deposed Maria, Maria does not become the witness of the plaintiff (Legal
Basis: Section 7, Rule 23 - A party shall not be deemed to make a person his or her own witness
for any purpose by taking his or her deposition.)
Juan will now have to call Maria to testify. If Juan is able to testify, the testimony of Maria is
going to be utilized as evidence. If Juan intends Maria to be a witness, she must be called to
testify and her testimony will constitute evidence.
The use of the deposition for the plaintiff is for him to have advance information as to what
Maria will be testifying to. On the other hand, the defendant is a part of the deposition- taking
process, will also be able to adequately prepare for the cross-examination of Juan.

Deposition Pending Action under Rule 24

ILLUSTRATION: Juan dela Cruz wants to file a civil action against Pedro Santos. However,
Juan dela Cruz cannot still file such action because of unavailability of resources. Juan is of a
belief that Maria Aquino possesses a material or relevant information that would support his
claim. However, Maria would be immigrating to another country. At the time Juan could have
filed the case, Maria is already in another country and will not be able to testify.

Q: What would be Juan’s remedy?

A: The remedy of Juan is to get a deposition before action. Juan should file a verified petition
indicating his desire to perpetuate the testimony of Maria, the petition is to be filed in the place
of residence of Juan. In this way, Juan would be able to preserve or make available the testimony
of Maria for later use at a trial by means of such deposition.
Legal Basis: Deposition before action can be taken by the filing of a verified petition by a person
desiring to perpetuate his testimony or that of any person in relation to any matter cognizable in
any court in the Philippines in the Court in the place of residence of the expected adverse party.
(Section 1, Rule 24)

Deposition pending Appeal under Rule 24

ILLUSTRATION: In the case for Collection of Sum of Money filed by Juan dela Cruz against
Pedro Santos. The court ruled in favor of the defendant. After the judgment, Juan files a Motion
for New Trial on the ground of Newly Discovered Evidence. The court denies the Motion for
New Trial. Juan, on appeal, assigned such denial as an error on appeal. Juan wants to depose
Maria Aquino believing that she has a material or relevant information regarding the newly
discovered evidence but may not be able to testify.

Q: What would be Juan’s remedy?

A: Juan should secure an authority or permission to get a deposition pending appeal in order to
preserve the testimony of Maria.
Legal Basis: If appeal is taken from a judgment of a Court including the CA in proper cases or
before the taking of an appeal if the time therefore has not yet expired. The Court that rendered
judgment may allow taking of depositions of witnesses to perpetuate their testimony for use in
the event of further proceedings in the said Court. (Section 7, Rule 24)
Use of the Depositions
ILLUSTRATIONS
• In a civil case before Juan dela Cruz (plaintiff) and Pedro Santos (defendant) where
Maria Aquino is a deponent. Juan calls Maria to testify. However, Maria did not testify in
accordance with what she testified during the deposition-taking. What could Juan do?
A: Juan could use the deposition for the purpose of contradicting or impeaching the testimony of
deponent as a witness.
Legal Basis: (Section 4, Rule 23) - (a)Any deposition may be used by any party for the purpose
of contradicting or impeaching the testimony of the deponent as a witness;

• Suppose, in a civil case before Juan dela Cruz (plaintiff) and Pedro Santos (defendant)
where Maria Aquino is a deponent. Juan calls Maria to testify in a trial. However, a day before
the trial, Maria died. What could Juan do?
A: Juan could use the deposition for any purpose, which is, he can use the deposition to prove his
claim. Maria’s deposition will take the place of her oral testimony because she is already dead.
Moreover, Maria now becomes a witness for the Juan.
Legal Basis: Take note of the other grounds under Section 4, Rule 23 where the deposition may
be used for any purpose – (Section 4, Rule 23) - (c) The deposition of a witness, whether or not
a party, may be used by any party for any purpose if the court finds:
(1) that the witness is dead; or
(2) that the witness resides at a distance more than one hundred (100) kilometers from the place
of trial or hearing, or is out of the Philippines, unless it appears that his or her absence was
procured by the party offering the deposition; or
(3) that the witness is unable to attend or testify because of age, sickness, infirmity, or
imprisonment; or
(4) that the party offering the deposition has been unable to procure the attendance of the witness
by subpoena; or
(5) upon application and notice, that such exceptional circumstances exist as to make it
desirable, in the interest of justice and with due regard to the importance of presenting the
testimony of witnesses orally in open court, to allow the deposition to be used; xxxxx”

(Section 8, Rule 23) - The introduction in evidence of the deposition or any part thereof for
any purpose other than that of contradicting or impeaching the deponent makes the deponent the
witness of the party introducing the deposition, but this shall not apply to the use by an adverse
party of a deposition as described in paragraph (b) of Section 4 of this Rule.

Consequences of the Failure to Comply with Rules 23 and 24 (Rule 29)

ILLUSTRATION: Juan dela Cruz was able to get authorization for the deposition of Maria
Aquino. However, Maria refused to answer any question during the oral examination. What are
the consequences of her refusal to comply with the modes of discovery?
• Maria may be cited in contempt. But for her to be cited in contempt, there must be an
order secured by the party serving the written interrogatory to compel and answer. (Section 2,
Rule 29)
• If Maria still does not answer, the facts that are sought to be established are now deemed
established, and that there is no possible evidence that can be introduced to rebut what has been
established. (Section 3, Rule 29)
• In addition, the court also has the option to order the striking out pleadings or parts
thereof or staying proceedings until the order is obeyed, dismissing the action or proceeding or
any part thereof, or rendering judgment by default against the disobedient party, and in addition,
expenses and attorney’s fees (Section 3, Rule 29); OR
• The disobedient party can be ordered arrested (Section 3, Rule 29)
RULE 25
INTERROGATORIES TO PARTIES

ILLUSTRATION:
Juan dela Cruz (plaintiff) filed a complaint for Collection for sum of money and Damages
against Pedro Santos (defendant). Maria filed her answer stating her affirmative defenses within
the reglementary period of filing an answer. However, the answer lacks evidentiary facts. Now,
Juan is of a belief that Maria Aquino (deponent) possesses a material or relevant information that
to support his claim and would eventually help him in the case.

Q: What would be Juan’s remedy?

A: Under the amended rules, upon ex parte motion, Juan shall file and serve upon the Maria
written interrogatories to be answered by the Maria. (Section 1, Rule 25)
Note however, that if the party served is a public or private corporation or a partnership or
association, written interrogatories shall be served upon any officer thereof competent to testify
in its behalf. (Section 1, Rule 25)
However, Juan cannot, without leave of court, serve more than one set of interrogatories to be
answered by the same party. (Section 4, Rule 25) So, as a general rule, when Juan sends
questions to Maria, he better compile all questions that he want ask because no party is given, as
a rule, the privilege of securing more than one set of interrogatories.

Q: What kind of questions can Juan ask under Rule 25 to Maria?

A: The same questions that a plaintiff can ask in Rule 23 section 2: (Section 5, Rule 25)
1.) anything that is related to the claim or defense provided it is relevant; and
2.) it is not privileged.

Q: Upon receipt by Maria of the Written Interrogatories, what would she do to comply?
A: Maria must answer the written interrogatories fully in writing and shall be signed and
sworn to by her. (Section 2, Rule 25)
Maria shall file and serve a copy of the answers to Juan within fifteen (15) calendar days after
service thereof, unless the court, on motion and for good cause shown, extends or shortens the
time. (Section 2, Rule 25)

Q: Suppose Maria does not want to answer the questions in the written interrogatories because
she believes that the questions are improper, and she wants to object to questions posed by Juan,
what is her remedy?
A: Maria can go to court to present her objections within ten (10) calendar days after service
of the written interrogatories, and notice shall be served to Juan. (Section 3, Rule 25)
The court shall resolve the objections as soon as possible. The court shall also delay the
making of answer until the objections are resolved. (Section 3, Rule 25)

Q: Suppose Maria refused to answer despite being served with written interrogatories, what are
the consequences?
A: If Maria fails to serve answers to interrogatories submitted under Rule 25 after proper
service of such interrogatories, the court on motion and notice, may:
1. Strike out all or any part of any pleading of the party,
2. Dismiss the action or proceeding or any part thereof, or
3. Enter a judgment by default against the party, and
4. In its discretion, order him to pay reasonable expenses incurred by the other, including
attorney’s fees.

Q: Suppose there are already answers to the interrogatories given by Maria, how does Juan
makes use of those answers?
A: They have the same uses under Rule 23 Section 4 – you can use it for impeachment, or any
other purpose like to prove an admission already made by the adverse party. (Section 5, Rule 25)

Q: What is the effect if Juan did not serve written interrogatories to Maria?
A: Maria may not be compelled by Juan to give testimony in open court, or to give a deposition
pending appeal, unless thereafter allowed by the court for good cause shown and to prevent a
failure of justice. (Section 6, Rule 25)

Q: Distinguish INTERROGATORIES TO PARTIES (Rule 25) from DEPOSITION UPON

WRITTEN INTERROGATORIES (Rule 23).
A: The following are the distinctions:

1.) Under Rule 23 on Depositions upon written interrogatories, the deposition is taken
before a deposition officer; whereas
Under Rule 25 on Interrogatories to Parties, there is no deposition officer;

2.) Under Rule 23 on Depositions upon written interrogatories, questions are prepared
beforehand. They are submitted to the deposition officer who will ask the deponent the questions
and he will record the answers.; whereas
Under Rule 25 on Interrogatories to Parties, the questioning is direct. Plaintiff questions
defendant, defendant questions the plaintiff. There is no third person who will intervene; and

3.) Under Rule 23 on Depositions upon written interrogatories, the deposition of any person
may be taken, whether he is a party or not, may be taken; whereas
Rule 25 on Interrogatories to Parties applies to parties only. You can send interrogatories only to
parties. You cannot ask question to a stranger.
d.) Rule 26 – Request for Admissions
Case: Nate negotiated with Jules certain checks in exchange for cash in the total amount of Php
250k. Upon presentation, the checks were dishonored. Despite repeated demands, Nate refused
and continued to refuse to honor said checks or replace it with cash. Jules filed a complaint and
alleged the facts.
In his Answer, Nate denied having personally negotiated with Jules any of the checks annexed to
the complaint. The RTC issued a pre-trial order defining the principal issues.
For Jules to request for the admission of (1) the genuineness of any material and relevant
document described in and exhibited with the request or (2) the truth of any material or relevant
matter of fact set forth in the request, she shall file a request for admission and serve the same to
Nate.
Jules then filed a Request for Admission, specifically requesting that Nate admit that:
1) Nate negotiated with Jules for valuable consideration the checks annexed to the complaint;
2) Nate signed separate promissory note (attached herein as exhibit A), dated November 23,
2020, acknowledging that he is indebted to plaintiff Jules in the sum Php 250k,
3) Jules sent letters of demand (attached herein as exhibit B), to Nate both dated November 28,
2020 which the latter received on December 5, 2020
Such request was duly served to Nate and his counsel. However, Nate failed to respond to the
request for admission.
For failure of Nate to respond to the request, the RTC, citing Sections 1 and 2, Rule 26 of the
Rules of Court, issued an Order on December 27, 2020, which reads in part:
"Defendants’ failure to deny under oath the matters of which an admission is requested or setting
forth in detail the reason why he cannot truthfully admit/deny those matters in accordance with
the cited provisions of the Rules of Court is an implied admission of the matters of which
admission is requested."
In the same Order, the RTC deemed the cases submitted for decision.
IF, however, Jules failed to attach the documents, such as the promissory note or the letters of
demand, then her request for admission is defective. The same is true if she failed to serve Nate a
copy of the request. The consequence of these situations is that: there can be no presentation of
evidence as to the document or as to the fact.
e.) RULE 27 — PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS

Rule 27 of the Rules of Court provides the mechanics for the production of documents and the
inspection of things during the pendency of a case. It also deals with the inspection of sources of
evidence other than documents, such as land or other property in the possession or control of the
other party. This remedial measure is intended to assist in the administration of justice by
facilitating and expediting the preparation of cases for trial and guarding against undesirable
surprise and delay; and it is designed to simplify procedure and obtain admissions of facts and
evidence, thereby shortening costly and time-consuming trials. It is based on ancient principles
of equity. More specifically, the purpose of the statute is to enable a party-litigant to discover
material information which, by reason of an opponent's control, would otherwise be unavailable
for judicial scrutiny, and to provide a convenient and summary method of obtaining material and
competent documentary evidence in the custody or under the control of an adversary. It is a
further extension of the concept of pretrial.

To illustrate, let us say that, ABC Corporation obtained 4 foreign currency denominated loans
from XYZ Bank as capital for its manufacturing operations. The loans were secured by
Promissory notes and by assignment to XYZ Bank of all the proceeds of ABC Corp. Back-end
Services Agreement with Alliance Semiconductors. However, ABC Corporation failed to pay its
obligations despite repeated demands from the XYZ Bank. This prompted XYZ Bank to file a
complaint for collection of sum of money. Eventually, ABC Corporation already received
proceeds of its Back-end agreement with Alliance.
During the trial, XYZ Bank may file a motion for the production and inspection of documents
for the inspection of all books of accounts, financial statements, receipts, checks, vouchers, and
other accounting records in connection with the proceeds/payment of the Back-end Services
Agreement already received by ABC Corporation from Alliance.
Using this mode of discovery, the court may order a party, in this example the ABC Corporation,
to: 1.) produce and permit the inspection and copying or photographing, by or on behalf of the
moving party, or of any designated documents, papers, books, accounts, letters, photographs,
objects or tangible things, not privileged, which constitute or contain evidence material to any
matter involved in the action and which are in his possession, custody or control; or 2.) permit
entry upon designated land or other property in his possession or control for the purpose of
inspecting, measuring, surveying, or photographing the property or any designated relevant
object or operation thereon.

To avail of this mode, the requisites that have to be complied with to compel the other party to
produce or allow the inspection of documents or things are: (a) the party must file a motion
showing good cause (b) notice of the filing of the motion must be served on all parties (c) the
motion must designate the papers or things that are to be produced and inspected (d) such papers
or things are not privileged (e) that they constitute or contain evidence material to any matter
involved in the litigation, and (f) that they are in possession, control or custody of the other party.

If for example, XYZ Bank’s motion was fail to specify with particularity the documents it
required ABC Corporation to produce. The motion shall be considered fatally defective as it
violates Sec. 1 Rule 27. The motion is called blanket inspection, too broad and too generalized in
scope. A motion for production and inspection of documents should not demand a roving
inspection of a promiscuous mass of documents. The inspection should be limited to those
documents designated with sufficient particularity in the motion, such that the adverse party can
easily identify the documents he is required to produce.

In addition, failure to comply on the part of the party to comply with the request of the other for
the production and inspection of documents, shall result to treating the matters regarding the
contents of the documents sought to be produced but which were not produced as having been
established.
RULE 28
Rule 28 can only be availed of in an action where the mental or physical condition of a party is in
controversy. A court in which the action is pending may in its discretion, order him to submit to
physical or mental examination by a physician.

For example, in moving for the dissolution of a partnership on the ground of insanity of a
partner. Abdul is the moving partner, Bryan is the alleged insane partner, and Dr. Charles is the
examining physician. Here, Abdul has to make a motion in Court, asking the Court to issue an
order requesting Bryan to submit himself for mental and physical examination by Dr. Charles,
stating that such examination is needed for the request for dissolution of their partnership. Be it
noted that the order for examination be made upon notice to the Bryan and to all other parties,
specifying the time, place, manner, condition and scope of the examination.
After the completion of the examination, and Dr. Charles diagnosed Bryan as insane, Bryan may
request a copy of the detailed written report of Dr. Charles setting forth his findings and
conclusions. Further, if requested by Bryan, Dr. Charles shall also provide a copy of the
examination results to be delivered to Abdul by Bryan. Furthermore, Abdul shall also be entitled
to request and receive a like report of any examination, previously or thereafter made, over the
person of Bryan, of the same mental or physical condition.

Remedy of Abdul if Bryan refuses the request:

The Court on motion of Abdul and notice to Bryan, may order Bryan to deliver the examination
results on terms as are just; and if Dr. Charles fails or refuses to make such a report, the Court
may exclude his testimony if offered at the trial.

Effect of failure to comply with the order of examination:

The Court may issue an order as are just, and among others the following:
a. Order that the matters regarding which the physical or mental condition of a party shall
be taken to be established for the purposes of the action in accordance with the claim of the party
obtaining the order.
Here, once Bryan refused to comply with the order, his insanity shall be deemed established.
b. Order refusing to allow the disobedient party to support or oppose designated claims or
defenses, or prohibiting him from introducing in evidence the designated things or documents or
items of testimony or from introducing evidence of physical or mental condition.
Here, since Bryan's insanity is deemed established, he shall also be barred from introducing any
evidence to show that he is of sound mind. In other words, the order will prevent a rebuttal of
what has been established.
c. Order striking out pleadings or parts thereof or staying proceedings until the order is
obeyed, dismissing the action or proceeding or any part thereof, or rendering judgment by default
against the disobedient party.
Here, if in case Dr. Charles has already offered his testimony in trial, it shall be excluded in the
records and the Court will continue with the case.
 2. Briefly explain the significance of provisional remedies. State by example how they
can be used by the plaintiff and defendant.
Provisional remedies are temporary, auxiliary, and ancillary remedies available to a litigant for
the protection and preservation of his rights while the main action is pending. There are writes
and processes which are not the main actions and are dependent for their application on the
existence of a principal action.
When a provisional remedy is granted or denied, the order approving or denying such remedy is
an interlocutory order and cannot be the subject of appeal. However, it may be the subject of a
challenge before a superior court through petition for certiorari under Rule 65 of the Rules of
Court.
The following are the purposes of provisional remedies:
1. To preserve or protect litigant’s rights or interests during the pendency of the principal
action;
2. To secure the judgment;
3. To preserve the status quo of the things subject to the action or the relation between the
parties; and
4. To preserve the subject matter of the action.
The following are the kinds of provisional remedies:
1. Preliminary attachment
2. Preliminary injunction
3. Receivership
4. Replevin
5. Support
The enumeration on the kinds of provisional remedies is not exclusive. Hence, the court may, in
the interests of equity, order the appropriate reliefs during the pendency of an action. (Reyes v.
Lim. G.R. No. 134241)
1. PRELIMINARY ATTACHMENT
Attachment is defined as a provisional remedy by which the property of an adverse party is taken
into legal custody, either at the commencement of an action or at any time thereafter.
The purpose of preliminary as a provisional remedy is to make the property attached a security
for the satisfaction of any judgment that can be recovered by the plaintiff or any property.
Preliminary attachment may be applied for by the plaintiff or any proper party which may
include a defendant who filed a counterclaim, cross-claim, or a third party complaint.
This provisional remedy is used by the plaintiff to achieve the following purposes:
a. To seize the property of the debtor in advance of final judgment and to hold it for
purposes of satisfying said judgment.
b. To acquire jurisdiction over the action by actual or constructive seizure of the property in
those instances where personal or substituted service of summons on the defendant
cannot be effected.
The following shall constitute as grounds for the issuance of a writ of preliminary attachment:
a. For the recovery of a specified amount of money or damages, other than moral and
exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-
delict against a party who is about to depart from the Philippines with intent to defraud
his creditors;
b. For money or property embezzled or fraudulently misapplied or converted to his own use
by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or
clerk, in the course of his employment as such, or by any other person in fiduciary
capacity or for willful violation of duty;
c. To recover the possession of property unjustly or fraudulently taken, detained or
converted, when the property, or any part thereof, has been concealed, removed or
disposed of to prevent its being found or taken by the applicant or an authorized person;
d. Against a party who has been guilty of fraud in contracting the debt or incurring the
obligation upon which the action is brought, or in the performance thereof;
e. Against a party who has removed or disposed of his property, or is about to do so, with
intent to defraud his creditors;
f. Against a party who does not reside and is not found in the Philippines, or on whom
summons may be served by publication.

2. PRELIMINARY INJUNCTION
A preliminary injunction is an equitable remedy, and one who comes to claim for equity must do
so with clean hands. It is to be resorted by the litigant to prevent or preserve a right where there
is a pressing necessity to avoid injurious consequences which cannot be remedied under any
standard of compensation.
As to purpose, preliminary injunction is issued by the court to prevent threatened or continuous
irreparable injury to parties before their claims can be thoroughly studied and adjudicated and
during the pendency of an action. (Manila International v. Rivera, 471 SCRA 358)
To avail of this remedy, the applicant must prove the following:
a. The existence of a clear and unmistakable right that must be protected; that is, right in
esse;
b. The right in esse is directly threatened by an act sought to be enjoined;
 c. A material and substantial invasion of such right; and
d. An urgent and paramount necessity for the writ to prevent serious damage.
A writ of preliminary injunction may be applied for either by the plaintiff or defendant based on
the following grounds:
a. The applicant is entitled to the relief demanded, and the whole or part of such relief
consists in restraining the commission or continuance of the act or acts complained
of, or in requiring the performance of an act or acts, either for a limited period or
perpetually;
b. The commission, continuance or non-performance of the act or acts complained of
during the litigation would probably work injustice to the applicant; or
c. A party, court, agency, or a person is doing, threatening, or is attempting to do, or is
procuring or suffering to be done, some act or acts probably in violation of the rights
of the applicant respecting the subject of the action or proceeding, and tending to
render the judgment ineffectual.

3. RECIVERSHIP
In receivership, a person known as the receiver, is appointed by the court on behalf of all the
parties to the action for the purpose of preserving and conserving the property in litigation and
preventing its possible destruction or dissipation if it were left in the possession of any of the
parties. (Normandy v. Duque, G.R. No. L-25407)
Receivership, like injunction, may be a principal action itself or just an ancillary remedy. Its
purpose is to protect and preserve the rights of the parties during the pendency of the main
action, during the pendency of an appeal, or as an aids in the execution of a judgment when the
writ of execution has been returned unsatisfied.
Unlike any other provisional remedies, receivership may be availed of even after the judgment
has become final and executory.
The guiding principle in receivership is the prevention of imminent danger to the property. If the
nature of the action does not require its issuance, then the remedy may not be granted.
This provisional remedy may be applied for either by the plaintiff or by the defendant in the
following instances:
a. When it appears from the verified petition that the party applying for the appointment of
a receiver has an interest in the property or fund which is the subject of the action, and
that such property or fund is in danger of being lost, removed, or materially injured
unless a receiver be appointed and preserve it;
b. When it appears in an action by the mortgagee for the foreclosure of a mortgage that the
property is in danger of being wasted or dissipated or materially injured;
 c. After judgment, to preserve the property during the pendency of an appeal or to dispose
of it according to the judgment or to aid execution when the execution has been returned
unsatisfied;
d. Whenever in other cases it appears that the appointment of a receiver is the most
convenient and feasible means of preserving, administering, or disposing of the property
in litigation;
e. If a spouse without just cause abandons the other or fails to comply with his or her
obligations to the family, the aggrieved spouse may petition the court for receivership;
f. The court may appoint a receiver of the property of the judgment obligor; and it may also
forbid transfer or disposition thereof;
g. Even after the trial court loses jurisdiction in cases of appeal, the court may issue orders
for the protection of the rights of the parties including necessarily the appointment of a
receiver;
h. After final judgment, a receiver may be appointed as an aid to the execution of judgment;
i. Appointment of a receiver over the property in custodial egis may be allowed when it is
justified by special circumstances, as when it is reasonably necessary to secure and
protect the rights of the real owner.

4. REPLEVIN
Replevin is the provisional remedy seeking for the possession of the property prior to the
determination of the main action for replevin [BA Finance Corp. v. CA, G.R. No. 102998
(1996)]
Replevin may also be a main action with the ultimate goal of recovering personal property
capable of manual delivery wrongfully detained by a person. In this sense, it is a suit in itself.
[BA Finance Corp. v. CA, G.R. No. 102998 (1996)]
It is a form of a principal remedy and provisional remedy / relief. It is also a mixed
action partly in rem as far as the claim for recovery of personal property and in persona
as far as the claim of damages, the object of which is recovery of possession of
personal property applied for at the commencement of the action or at any time before
answer by the party praying for recovery of personal property.

This provisional remedy may be applied for either by the plaintiff or by the defendant in
following these requisites:
1. Filing of Affidavit containing the following:
(a) that applicant is the owner of the property claimed, particularly describing it, or is
entitled to possession of the same;
(b) that property is a wrongfully detained by the adverse party, alleging the cause of
detention according to the best of his knowledge, information or belief;
(c) that property has not been distrained or taken for a tax assessment or payment of
fine or seized under execution, preliminary attachment or in custodia legis, or if so
seized, it is exempt from seizure / custody;
(d) actual market value not the probable value as declared by the applicant. Should there
be a dispute, it is to be resolved by the Court.
2. Filing of bond in double the value of the property – for return of the property to the
adverse party and payment of such sum as he may recover from the applicant
3. Upon filing of the affidavit and bond, the writ of replevin shall issue requiring the
sheriff to forthwith take the property in custody.
A. In taking custody – if concealed, he may demand delivery, if not delivered, he may
cause the building / enclosure to be broken.
B. Once in possession, it must be kept in a secure place and shall be responsible for its
delivery to the party entitled thereto upon receipt of his fees and expenses

The provisional remedy can be availed of at the commencement of the action or at any time
before answer in the following principal actions:
1. Recovery of possession of personal property
2. Recovery of personal property subject of chattel mortgage as a preliminary step to
extrajudicial foreclosure

The writ of Replevin may only be obtained when the defendant in the action has not yet filed his
answer to the complaint where it is necessary to:
1. Protect plaintiff’s right of possession to property; or
3. Prevent defendant from destroying, damaging or disposing of the property.

5. SUPPORT PENDENTE LITE

It is an order against the accused to provide support pendente lite to the child born to the
offended party allegedly because of the crime. The application therefor may be filed successively
by the offended party, her parents, grandparents or guardian and the State in the corresponding
criminal case during its pendency. (Sec. 6, Rule 61)
An amount of support provisionally fixed by the court in favor of the person or persons entitled
thereto during the pendency of.an action for support. Here,, the main action is usually for.
support and support pendente lite is the provisional remedy (2 RIANO, Supra. at 157).
This provisional remedy is available in an action for support or in actions where one of the
reliefs sought is support for the applicant (Coquia v Baltazar, G.R. No. L-2942, December 29,
1949), Support as a principal action may only be filed before the Family Court. Under Rule39,
Sec. 4, the judgment in an action for support is immediately executory.

The provisional remedy may be availed of by the offended party in the following requisites:
1. At the commencement of the proper action or proceeding or at any time prior to a
judgment or final order – a verified application may be filed by a party stating the
grounds for the claim and the financial conditions of both parties, accompanied by
affidavits, depositions, or other authentic documents in support thereof.
4. It is also available in criminal cases when:
(a) child is born to offended party allegedly because of the crime
(e) civil liability arising from the criminal action includes support for the offspring
(f) civil aspect has not been waived, reserved or instituted prior to filing of criminal
action.
5. It is in the following principal actions:
a. Support, whether as the main case or as one of several causes of action;
b. Criminal actions where the civil liability includes support of the offspring as a
consequence of the crime, i.e. rape, seduction

The provisional remedy may be availed of by the offended party in the following procedure:
1. This application may be filed successively by the offended party, her parents,
grandparents, guardian or the State in the corresponding criminal case during its
pendency. Upon filing of verified application – it shall be served on the adverse party,
who shall have 5 days to comment unless a different period is fixed by the court.
2. The comment shall also be verified and accompanied by affidavits, depositions,
authentic documents. Hearing shall then be conducted no more than 3 days after
comment is filed or the period expires.
3. Court shall determine provisionally the pertinent facts and render such orders as justice
and equity may require, having due regard to the probable outcome of the case and such
other circumstances.
If granted, it shall fix the amount of money to be provisionally paid or such other forms
or support as should be provided – taking into account the necessities of the applicant
and resources or means of the adverse party and the terms or mode for providing
support.
If denied, the principal case shall be tried and decided as early as possible.

Where the right to support is put in issue by the pleading of the fact from which the right to
support is based is in controversy or has not been established, the court cannot grant support
pendente lite.
3.Prepare an outline for Rules 65-71.
RULE 65 – CERTIORARI, PROHIBITION AND MANDAMUS

a. Definitions and Distinctions

Certiorari is a writ emanating from the proper court directed against any tribunal, board or
officer exercising judicial or quasi-judicial functions, the purpose of which is to correct errors of
jurisdiction - i.e. without or in excess of jurisdiction, or with grave abuse of discretion amounting
to the same. [Sec. 1, Rule 65]

Prohibition is a writ issued by the proper court and directed against any tribunal, corporation,
board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions,
commanding the respondent to desist from further proceedings in the action or matter specified
therein [Sec. 2, Rule 65]

Mandamus is a writ to compel a tribunal, corporation, board, officer or person to do the act
required to be done to protect the rights of the petitioner when the respondent unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from an
office, trust, or station, or 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. [Sec. 3, Rule 65]

b. Requisites

Certiorari
a. Respondent is exercising judicial or quasi-judicial function;
b. Respondent acted without or in excess of its jurisdiction or acted with grave abuse of
discretion amounting to lack of jurisdiction; and
c. There must be no appeal or no other plain, speedy, and adequate remedy. [Sec. 1, Rule
65; Barbers v. COMELEC, G.R. No. 165691 (2005)]

Notes on certiorari:
a. A respondent is said to be exercising judicial functions where he has the power to
determine what the law is and what the legal rights of parties are.
b. Quasi-judicial function is a term which applies to the action of administrative officers or
bodies to investigate facts and draw conclusions. [2 Riano 195, 2016 Bantam Ed.]
 c. The acts that may be the object of the petition are:
1. Acts without jurisdiction – denotes that the tribunal, board, or officers acted
with absolute lack of authority
2. Excess of jurisdiction - when the respondent exceeds its power or acts
without any statutory authority
3. Grave abuse of discretion – connotes capricious and whimsical exercise of
judgement as to be equivalent to lack or excess of jurisdiction. [2 Riano 205,
2016 Bantam Ed.]

Prohibition
a. Respondent is exercising judicial or quasi-judicial function;
b. Respondent acted without or in excess of its jurisdiction or acted with grave abuse of
discretion amounting to lack of jurisdiction; and
c. There must be no appeal or no other plain, speedy, and adequate remedy. [Sec. 2, Rule
65; Barbers v. COMELEC, G.R. No. 165691 (2005)]

Mandamus
a. Respondent unlawfully
1. Neglects the performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or
2. Excludes another from the use and enjoyment of a right or office to which
such other is entitled, and
b. There is no other plain, speedy and adequate remedy in the ordinary course of law. [Sec.
3, Rule 65]

Discretionary vs. Ministerial act

Discretionary act Ministerial act
The law imposes a duty upon a public officer One which an officer or tribunal performs in a
and gives him the right to decide how or whengiven state of facts, in a prescribed manner, in
the duty shall be performed. obedience to the mandate of a legal authority,
without regard to or the exercise of his own
judgment upon the propriety or impropriety of
the act done.
[Roble Arrastre, Inc. v. Villaflor, G.R. No. 128509 (2006)]

Note: The common requisite among certiorari, prohibition, and mandamus is that there is no
other plain, speedy, or adequate remedy in the ordinary course of law. [Secs. 1, 2, 3, Rule
65]

c. When Petition for Certiorari, Prohibition, and Mandamus is Proper

Certiorari is a corrective remedy used to correct errors of jurisdiction, not errors of judgment.

Note: Errors of judgement are those errors arising from erroneous conclusions of law. They are
reviewable by appeal, not by certiorari. [Heirs of Valientes v. Ramas, 638 SCRA 444]
  Questions of fact cannot be raised in an original action for certiorari. Only established or
admitted facts may be considered. [Suarez v. NLRC, G.R. No. 124723 (1998)]

General rule: Where an appeal is available, certiorari will not lie [Jose v. Zulueta, G.R. No. L-
16598 (1961)]

Exceptions:
a. Where appeal does not constitute a speedy and adequate remedy;
b. Where orders were also issued either in excess of or without jurisdiction;
c. For certain special considerations, as public welfare or public policy;
d. Where, in criminal actions, the court rejects the rebuttal evidence for the
prosecution as, in the case of acquittal, there could be no remedy;
e. Where the order is a patent nullity; and
f. Where the decision in the certiorari case will avoid future litigations. [Villarica
Pawnshop v. Gernale, G.R. No. 163344 (2009)]

Prohibition
Prohibition is a preventive remedy. However, to prevent the respondent from performing the act
sought to be prevented during the pendency of the proceedings for the writ, the petitioner should
obtain a restraining order and/or a writ of preliminary injunction. [1 Regalado 801, 2010 Ed.]

The office of prohibition is not to correct errors of judgment but to prevent or restrain usurpation
by inferior tribunals and to compel them to observe the limitation of their jurisdictions. [3
Herrera 321, 2006 Ed.]

General rule: Prohibition, as a rule, does NOT lie to restrain an act which is already fait
accompli (one that has already been done) [Cabañero and Mangornong v. Torres, G.R. No. L-
43352 (1935)]

Exception: A writ of prohibition will lie to prevent the unlawful creation of a new province by
those in the corridors of power who could avoid judicial intervention and review by merely
speedily and stealthily completing the commission of such illegality. [Tan v. COMELEC, G.R.
No. 73155 (1986)]

Mandamus
There must be a well-defined, clear legal right or duty. [Valmonte v. Belmonte, G.R. No. 74930
(1989)] The duty must be enjoined by law; hence, a contractual duty cannot be enforced by
mandamus [Province of Pangasinan v. Reparations Commission, G.R. No. L-27448 (1977)]

The respondent must be exercising a ministerial duty. [Roble Arrastre, Inc. v. Villaflor, G.R. No.
128509 (2006)] As such, mandamus “will lie to compel discharge of the discretionary duty itself
but not to control the discretion to be exercised. In other words, a mandamus can be issued to
require action, but not specific action.” [Association of Small Landowners in the Philippines,
Inc. v. Sec. of Agrarian Reform, G.R. No. 78742 (1989)]
However, in extreme situations generally in criminal cases, mandamus lies to compel the
performance by the fiscal of discretionary functions where his actuations are tantamount to a
willful refusal to perform a required duty. [1 Regalado 804, 2010 Ed.]

Grounds:
When any tribunal, corporation, board, officer or person unlawfully
a. NEGLECTS the performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or
b. EXCLUDES another from the use and enjoyment of a right or office to which
such other is entitled. [Sec. 3, Rule 65]

Mandamus is the proper remedy when the respondent unlawfully excludes the petitioner from a
public office, position or franchise to which the latter is entitled without usurping, intruding into
or unlawfully holding the office. However, if the respondent claims any right to the office and
usurps, intrudes into or
unlawfully holds it against the petitioner, quo warranto is the proper remedy [Sec. 1, Rule 66]

d. Injunctive Relief

General rule
The petition shall not interrupt the course of the principal case
 The public respondent shall proceed with the principal case within 10 days from filing of
the petition for certiorari with the higher court, absent a TRO or preliminary injunction,
or upon its expiration.
 Failure of the public respondent to proceed with the principal case may be a ground for
an administrative charge. [Sec. 7, Rule 65, as amended by A.M. No. 07-7-12-SC]

Exceptions:
a. When a TRO or a writ of preliminary injunction has been issued, enjoining
the public respondent from further proceeding with the case. [Sec. 7, Rule 65, as
amended by A.M. No. 07-7-12-SC]
b. The doctrine of judicial courtesy: Even if there is no injunction issued, the lower
court should defer to the higher court where 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 proceedings in the court of origin. [Republic v.
Sandiganbayan, G.R. No. 166859 (2006)]

e. Distinguish: Certiorari, Appeal by Certiorari, and Article VIII, Section 1 of the

Constitution

Certiorari as a mode of appeal [Rule 45] Certiorari as a special civil action [Rule 65]
A continuation of the appellate process over the An original action and not a mode of appeal
original case
Seeks to review final judgment or final orders May be directed against an interlocutory order
of
the court or where no appeal or plain or speedy
remedy is available in the ordinary course of
law
Raises only questions of law Raises questions of jurisdiction, i.e. whether a
tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without
jurisdiction or in excess of jurisdiction or with
grave abuse of discretion amounting to lack of
jurisdiction
Filed within 15 days from notice of judgment orFiled not later than 60 days from notice of
final order appealed from, or of the denial of judgment, order, or resolution sought to be
petitioner’s motion for reconsideration or new assailed.
trial.
Extension of 30 days may be granted forExtension granted only under
justifiable reasons. exceptional cases
Does not require a prior motion forMotion for reconsideration is a condition
reconsideration precedent, subject to exceptions
Stays the judgment appealed from Does not stay the judgment or order subject of
the petition, unless enjoined or restrained
Parties are the original parties with the The tribunal, board, or officer, exercising
appealing party as the petitioner and the adverse judicial or quasi-judicial functions is impleaded
party as the respondent, without impleading the as
lower court or its judge respondent
Review by the SC is discretionary and will be If the order is sufficient in form and substance,
granted only when there are special or important the RTC shall:
reasons [Sec. 6, Rule 45] 1. order respondents to comment, then
2. (a) hear the case or
(b) require the parties to file memoranda.
But the SC/CA may require a comment before
giving the petition due course.
[1 Regalado 612, 2010 Ed.]

Note: The remedies of appeal and certiorari are mutually exclusive and not alternative or
successive. Thus, a petitioner must show valid reasons why the issues raised in his petition for
certiorari could not have been raised on appeal. [Villamar-Sandoval v. Cailipan, G.R. No.
200727 (2013)]

Expanded Scope of Certiorari

While Rule 65 specifically requires that the respondent be a tribunal, board, or officer exercising
judicial or quasi-judicial functions, recent pronouncements of the Court have extended the
reach of the petition to functions that are neither judicial or quasijudicial. [Araullo v.
Aquino, G.R. No. 209287 (2014)]

f. Distinguish: Prohibition, Mandamus, and Injunction

Injunction Prohibition
Ordinary civil action Special civil action
Directed only to the party litigants, without in Directed to the court itself, commanding it to
any cease from the exercise of a jurisdiction to
Manner interfering with the court which
it has no legal claim
Does not involve the jurisdiction of the court It is based on the ground that the court against
whom the writ is sought had acted without or in
excess of jurisdiction
Main action or provisional remedy Main action
[2 Riano 58, 2016 Bantam Ed.]

Injunction Mandamus
Ordinary civil action Special civil action
Directed against a litigant Directed against a tribunal, corporation, board,
or officer
Purpose is to either refrain the defendant from Purpose is for the tribunal, corporation, board,
performing an act or to perform not necessarily or officer, to perform a ministerial and legal
a legal and ministerial duty duty
[2 Riano 59, 2016 Bantam Ed.]
g. When and Where to File Petition

Petition and contents

A verified petition is
a. Filed in the proper court
1. Alleging the facts with certainty
2. Praying for the proper judgment; and
b. Accompanied by:
1. A certified true copy of the judgment, order, resolution subject thereof
2. Copies of all pleadings and relevant and pertinent documents
3. A sworn certification of non-forum shopping [Secs. 1-3, Rule 65]

When to file
Not later than 60 days from notice of judgment, order, or resolution. If a motion for
reconsideration or new trial is filed, the 60-day period shall be counted from notice of denial of
motion. [Sec. 4, Rule 65]

Where to file
Supreme Court Subject to the doctrine of hierarchy of courts
and only when compelling reasons exist for not
filing the same with the lower courts [Uy v.
Contreras, G.R. No. 111416-17 (1994)]
RTC If the petition relates to an act or an omission of
an MTC, corporation, board, officer or person
 [Sec. 4, Rule 65, as amended by A.M. No. 07-7-
12-SC]
Court of Appeals only If the petition involves an act or an omission of
a quasi-judicial agency, unless otherwise
provided by law or rules [Sec. 4, Rule 65, as
amended by A.M. No. 07-7-12-SC]
Court of Appeals or the Sandiganbayan Whether or not in aid of appellate jurisdiction
[Sec. 4, A.M. No. 07-7- 12-SC]
Commission on Elections In election cases involving an act or an omission
of an MTC or RTC [Sec. 4, A.M. No.
07-7-12-SC]

Rule on extension of time for filing

General rule: The 60-day period within which to file a petition for certiorari under Rule 65 is
non-extendible.

Exception: Under the following exceptional circumstances, the Court may extend the
period according to its sound discretion:
a. Most persuasive and weighty reasons;
b. To relieve a litigant from an injustice not commensurate with his failure to
comply with the prescribed procedure;
c. Good faith of the defaulting party by immediately paying within a reasonable time
from the time of the default;
d. The existence of special or compelling circumstances;
e. The merits of the case;
f. A cause not entirely attributable to the fault or negligence of the party favored by
the suspension of the rules;
g. A lack of any showing that the review sought is merely frivolous and dilatory;
h. The other party will not be unjustly prejudiced thereby;
i. Fraud, accident, mistake or excusable negligence without appellant’s fault;
j. Peculiar legal and equitable circumstances attendant to each case;
k. In the name of substantial justice and fair play;
l. Importance of the issues involved; and
m. Exercise of sound discretion by the judge guided by all the attendant
circumstances. [Thenamaris Philippines, Inc. v. CA, G.R. No. 191215 (2014)]

h. Exceptions to Filing of Motion for Reconsideration Before Filing Petition

General rule: A motion for reconsideration is an essential precondition for the filing of a
petition for certiorari, prohibition, or mandamus. It is a plain, speedy, and adequate remedy.
 This is to enable the lower court, in the first instance, to pass upon and correct its
mistakes without the intervention of the higher court. [Teng v. Pahagac, G.R. No. 169704
(2010)]
Exceptions:
An MR may be dispensed with in some cases, such as:
a. Where the order is a patent nullity;
 b. Where questions raised in the certiorari proceeding have been duly raised and
passed upon by the lower court, or are the same as those raised and passed upon
in the lower court;
c. Where there is urgent necessity for the resolution of the question and any further
delay would prejudice the interests of the Government;
d. Where under the circumstances, an MR would be useless, as where the court had
already indicated that it would deny any MR of its questioned order;
e. Where the petitioner was deprived of due process and there is extreme urgency
for relief;
f. Where, in a criminal case, relief from an order of arrest is urgent and granting
such relief by trial court is improbable;
g. Where the proceedings in the lower court are a nullity for lack of due process;
h. Where the proceeding was ex-parte or in which the petitioner had no opportunity
to object;
i. Where the issue raised is one purely of law or where public interest is involved;
j. Where the subject matter of the action is perishable. [Ombudsman v. Laja, G.R.
No. 169241 (2006)]

i. Reliefs Petitioner is Entitled to Reliefs

Court may:
a. 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. [Sec. 7, Rule 65]
b. Incidental reliefs as law and justice may require. [Secs. 1-2, Rule 65]
c. Other reliefs prayed to which the petitioner is entitled. [Sec. 8, Rule 65]
d. Disciplinary sanctions for erring lawyers for patently dilatory and unmeritorious
petitions for certiorari. [Sec. 8, Rule 65]
Prayers
Certiorari
a. That the judgment be rendered annulling or modifying the proceedings of such tribunal,
board or officer; and
b. Granting such incidental reliefs as law and justice may require [Sec. 1, Rule 65]

Prohibition
a. That the judgment be rendered commanding the respondent to desist from further
proceedings in the action or matter specified; or
b. Otherwise granting such incidental reliefs as law and justice may require [Sec. 2, Rule
65]

Mandamus
a. That the 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
b. To pay the damages sustained by the petitioner by reason of the wrongful acts of the
respondent [Sec. 3, Rule 65]
j. Acts or Omissions of First-Level/Regional Trial Courts in Election Cases

In election cases involving an act or omission of a municipal or RTC, the petition [for certiorari,
prohibition, or mandamus] shall be filed exclusively with the COMELEC, in aid of its appellate
jurisdiction. [Sec. 4, par. 3, Rule 65 as amended by A.M. No. 07-7-12- SC (2007)]

k. Effects of Filing of an Unmeritorious Petition

The court may dismiss the petition if:
a. It finds the same patently without merit or prosecuted manifestly for delay, or
b. If the questions raised therein are too insubstantial to require consideration.

Effect of dismissal
The court may award in favor of the respondent treble costs solidarily against the petitioner and
counsel, in addition to subjecting counsel to administrative sanctions under Rules 139 and 139-B.
 The Court may impose motu proprio, based on res ipsa loquitur, other disciplinary
measures on erring lawyers for patently dilatory and unmeritorious petitioner for
certiorari. [Sec. 8, Rule 65]

CONTEMPT (RULE 71)

(1) Contempt is a disregard of, or disobedience to the rules or orders of a judicial body, or an
interruption of its proceedings by disorderly behavior or insolent language, in its presence
or so near thereto as to disturb the proceedings or to impair the respect due to such body
(17 C.J.S. 4).

(2) Contempt of court is disobedience to the court by acting in opposition to its authority,
justice and dignity. It signifies not only a willful disregard or disobedience of the court‘s
orders but also conduct tending to bring the authority of the court and the administration
of law into disrepute or, in some manner to impede the due administration of justice (Siy
vs. NLRC, GR 158971, Ausg. 25, 2005).

(3) The reason for the power to punish for contempt is that respect of the courts guarantees
the stability of their institution. Without such guarantee, said institution would be resting
on shaky foundation (Cornejo vs.Tan, 85 Phil. 772).

(4) It is inherent in all courts; its existence is essential to the preservation of order in judicial
proceedings and to the enforcement of judgments, orders and mandates of the courts, and
consequently, to the due administration of justice (Perkins vs. Director of Prisons, 58
Phil. 271).

(5) Contempt proceedings has dual function:

(a) Vindication of public interest by punishment of contemptuous conduct; and

 (b) Coercion to compel the contemnor to do what the law requires him to uphold the
power of the Court, and also to secure the rights of the parties to a suit awarded by
the Court (Regalado vs. Go, GR 167988, Feb. 6, 2007).

KINDS OF CONTEMPT
According to nature

(a) Criminal contempt: Conduct directed against the authority and dignity of the court or a
judge acting judicially.
(b) Civil contempt: Failure to do something ordered to be done by a court or by a judge for
the benefit of the opposing party. [Lorenzo Shipping v. Distribution Management, G.R.
No. 155849 (2011)]

CIVIL CONTEMPT CRIMINAL CONTEMPT

It is the failure to do something ordered to be It is a conduct directed against the authority and
done by a court or a judge for the benefit of the dignity of the court or a judge acting judicially;
opposing party therein and is therefore and it is an obstructing the administration of justice
offense against the party in whose behalf the which tends to bring the court into disrepute or
violated order was made; disrespect;

The purpose is to compensate for the benefit ofThe purpose is to punish, to vindicate the
a party; authority of the court and protect its outraged
dignity;

The rules of procedure governing contemptShould be conducted in accordance with the

proceedings or criminal prosecutions ordinarilyprinciples and rules applicable to criminal cases,
are inapplicable to civil contempt proceedings. insofar as such procedure is consistent with the
summary nature of contempt proceedings.

According to manner of commission

a. Direct contempt: Act committed in the presence of or so near the court or judge as to obstruct
or interrupt the proceedings before the same.

b. Indirect contempt: One not committed in the presence of the court. It is an act done at a
distance which tends to belittle, degrade, obstruct, or embarrass the court and justice.
[Lorenzo Shipping v. Distribution Management, G.R. No. 155849 (2011)]

Direct Contempt Indirect Contempt

In general is committed in the presence of or soIt is not committed in the presence of the court,
near the court or judge as to obstruct or interrupt but done at a distance which tends to belittle,
the proceedings before it; Otherwise known asdegrade, obstruct or embarrass the court and
Contempt in Facie Curiae justice; Otherwise known as
Constructive Contempt
Summary in nature There is charge and hearing
For a person to be adjudged guilty of direct
contempt, he must commit a misbehavior in the
presence of or so near a judge as to interrupt the See Acts deemed punishable as indirect
administration of justice. [SBMA v. contempt below.
Rodriguez, G.R. No. 160270 (2010)]

Punishment Punishment
a. If committed against the RTC: Fine of not a. If committed against RTC:
exceeding PHP 2,000 and/or imprisonment Fine not exceeding PHP 30,000 and/or
not exceeding 10 days or both imprisonment not exceeding 6 months or both

b. If committed b. If committed against MTC: Fine not

against the MTC: Fine not exceeding PHP 200exceeding PHP 5,000 and/or imprisonment
and or imprisonment not exceeding 1 day ornot exceeding 1month or both
both
Remedy is certiorari or prohibition Remedy is appeal
Acts constituting direct contempt are: Acts constituting indirect contempt are:

(a) Misbehavior in the presence of or so nearAfter a charge in writing has been filed, and an
the court as to obstruct or interrupt theopportunity given to the respondent to comment
proceedings before it; thereon within such period as may be fixed by
(b) Disrespect toward the court; the court and to be heard by himself or counsel,
(c) Offensive personalities towards others; a person guilty of any of the following acts may
(d) Refusal to be sworn as a witness or to be punished for indirect contempt:
answer as a witness;
(e) Refusal to subscribe an affidavit or(a) Misbehavior an officer of a court in the
deposition when lawfully required to do so performance of his official duties or in his
(Sec. 1); official transactions;
(f) Acts of a party or a counsel which constitute
willful and deliberate forum shopping (Sec.(b) Disobedience of or resistance to a lawful
1, Rule 7); writ, process, order, or judgment of a court,
(g) Unfounded accusations or allegations or including the act of a person who, after
words in a pleading tending to embarrass the being dispossessed or ejected from any real
court or to bring it into disrepute (Re: Letter property by the judgment or process of any
dated 21 Feb. 2005 of Atty. Noel Sorreda, court of competent jurisdiction, enters or
464 SCRA 32) attempts or induces another to enter into or
upon such real property, for the purpose of
executing acts of ownership or possession,
or in any manner disturbs the possession
given to the person adjudged to be entitled
thereto;

(c) Any abuse of or any unlawful interference

 with the processes or proceedings of a court
not constituting direct contempt under
section 1 of this Rule;

(d) Any improper conduct tending, directly or

indirectly, to impede, obstruct, or degrade
the administration of justice;

(e) Assuming to be an attorney or an officer of a

court, and acting as such without authority;

(f) Failure to obey a subpoena duly served;

(g) The rescue, or attempted rescue, of a person

or property in the custody of an officer by
virtue of an order or process of a court held
by him (Sec. 3).

Other examples:

a. Submission, of a false certification of

nonforum shopping or non-compliance with
any of the undertakings [Sec. 5, Rule 7]

b. Upon a judgment obligor’s failure to pay

any such installment when due without good
excuse, if the court orders him to pay the
judgment in fixed monthly installments
[Sec. 40, Rule 39]

NOTES:

 Contempt, whether direct or indirect, may be civil or criminal depending on the nature
and effect of contemptuous act. [Montenegro v. Montenegro, G.R. No. 156829 (2004)]

 The real character of the proceedings in contempt cases is to be determined by the relief
sought or by the dominant purpose. The proceedings are to be regarded as criminal when
the purpose is primarily punishment, and civil when the purpose is primarily
compensatory or remedial. [Montenegro v. Montenegro, G.R. No. 156829 (2004)]

REMEDY AGAINST DIRECT CONTEMPT; PENALTY

(1) The penalty for direct contempt depends upon the court which the act was committed;
 (a) If the act constituting direct contempt was committed against an RTC or a court of
equivalent or higher rank, the penalty is a fine not exceeding 2,000 pesos or
imprisonment not exceeding 10 days, or both;

(b) If the act constituting direct contempt was committed against a lower court , the
penalty is a fine not exceeding 200 pesos or imprisonment not exceeding one (1)
day, or both (Sec. 1)‘;

(c) If the contempt consists in the refusal or omission to do an act which is yet within
the power of the respondent to perform, he may be imprisoned by order of the
court concerned until he performs it (Sec. 8).

(2) A person adjudged in direct contempt may not appeal therefrom. His remedy is a petition
for certiorari or prohibition directed against the court which adjudged him in direct
contempt (Sec. 2).

Pending the resolution of the petition for certiorari or prohibition, the execution of
the judgment for direct contempt shall be suspended. The suspension however shall take
place only if the person adjudged in contempt files a bond fixed by the court which
rendered the judgment. This bond is conditioned upon his performance of the judgment
should the petition be decided against him

REMEDY AGAINST INDIRECT CONTEMPT; PENALTY

(1) The punishment for indirect contempt depends upon the level of the court against which
the act was committed;

(a) Where the act was committed against an RTC or a court of equivalent or higher
rank, he may be punished by a fine not exceeding 30,000 pesos or imprisonment
not exceeding 6 months, or both;

(b) Where the act was committed against a lower court, he may be punished by a fine
not exceeding 5,000 pesos or imprisonment not exceeding one month, or both.
Aside from the applicable penalties, if the contempt consists in the violation of a
writ of injunction, TRO or status quo order, he may also be ordered to make
complete restitution to the party injured by such violation of the property involved
or such amount as may be alleged and proved (Sec. 7);

(c) Where the act was committed against a person or entity exercising quasi-judicial
functions, the penalty imposed shall depend upon the provisions of the law which
authorizes a penalty for contempt against such persons or entities.

(2) The person adjudged in indirect contempt may appeal from the judgment or final order of
the court in the same manner as in criminal cases.
 The appeal will not however have the effect of suspending the judgment if the
person adjudged in contempt does not file a bond in an amount fixed by the court from
which the appeal is taken. This bond is conditioned upon his performance of the
judgment or final order if the appeal is decided against (Sec. 11)

HOW CONTEMPT PROCEEDINGS ARE COMMENCED

DIRECT CONTEMPT

By whom initiated:

(a) Generally, civil contempt proceedings should be instituted by an aggrieved party, or his
successor, or someone who has pecuniary interest in the right to be protected.

(b) In criminal contempt proceedings, it is generally held that the State is the real prosecutor.
[People v. Godoy, G.R. Nos. 115908-09 (1995)]

INDIRECT CONTEMPT

Two modes of commencing a proceeding

(a) Proceedings for indirect contempt may be initiated motu proprio by the court against
which the contempt was committed by an order or any other formal charge requiring the
respondent to show cause why he should not be punished for contempt.

(b) In all other cases, charges for indirect contempt shall be commenced by a verified
petition with supporting particulars and certified true copies of documents or papers
involved therein, and upon full compliance with the requirements for filing initiatory
pleadings for civil actions in the court concerned.

If the contempt charges arose out of or are related to a principal action pending in the
court, the petition for contempt shall allege that fact but said petition shall be docketed, heard
and decided separately, unless the court in its discretion orders the consolidation of the contempt
charge and the principal action for joint hearing and decision. [Sec. 4, Rule 70]

Where to file charge

a. Where the charge for indirect contempt has been committed against a RTC or a court of
equivalent or higher rank, or against an officer appointed by it, the charge may be filed
with such court.

b. Where such contempt has been committed against a lower court, the charge may be filed
with the RTC of the place in which the lower court is sitting; but the proceedings may
also be instituted in such lower court subject to appeal to the RTC of such place in the
same manner as provided in Sec. 2, Rule 71. [Sec. 5, Rule 71]
WHEN IMPRISONMENT SHALL BE IMPOSED

(1) When the contempt consists in the refusal or omission to do an act which is yet in the
power of the respondent to perform, he may be imprisoned by order of the court
concerned until he performs it (Sec. 8). Indefinite incarceration may be resorted to where
the attendant circumstances are such that the non-compliance with the court order is an
utter disregard of the authority of the court which has then no other recourse but to use its
coercive power. When a person or party is legally and validly required by a court to
appear before it for a certain purpose, and when that requirement is disobeyed, the only
remedy left for the court is to use force to bring the person or party before it.

(2) The punishment is imposed for the benefit of a complainant or a party to a suit who has
been injured aside from the need to compel performance of the orders or decrees of the
court, which the contemnor refuses to obey although able to do so. In effect, it is within
the power of the person adjudged guilty of contempt to set himself free.

NOTES:

 Only the judge who ordered the confinement of the person for contempt of court can
issue the Order of Release. [Inoturan v. Limsiaco, Jr., AM No. MTJ-01-1362 (2005)]

 Sec. 8, Rule 71 does not apply to tenants who refused or failed to pay their rentals to the
special administratrix of the property. The nonpayment of rentals, which is a civil debt, is
covered by the constitutional guarantee against imprisonment. [1 Regalado 920, 2010
Ed.]

CONTEMPT AGAINST QUASI-JUDICIAL BODIES

Applicability of the rules

Unless otherwise provided by law, this Rule shall apply to contempt committed against persons,
entities, bodies or agencies exercising quasi-judicial functions, or shall have suppletory effect to
such rules as they may have adopted pursuant to authority granted to them by law to punish for
contempt. [Sec. 12, Rule 71].

It is not within the jurisdiction and competence of quasi-judicial bodies to decide indirect
contempt cases. (e.g. DARAB has no power to decide the contempt charge filed before it) [Land
Bank v. Listana, G.R. No. 152611 (2003)]

Acts or violations against quasi-judicial bodies punishable as contempt:

Where a person, without lawful excuse, fails to appear, make oath, give testimony or produce
documents when required to do so by the official or body exercising such powers. Other acts or
violations cannot be punished as contempt unless specifically defined in the governing law as
contempt of court or if it authorizes the quasi-judicial body to punish for contempt and providing
the corresponding penalty. [1 Regalado 921-922, 2010 Ed., citing People v. Mendoza, G.R. No.
L-5059-60 (1953), see Sec. 13, Chapter 3, Book VII, Admin Code]