Sunday, July 19, 2015

Sample petition for certiorari; ejectment case; execution pending appeal; failure of appellant to post supersedeas bond.

“x x x.

I.                  PREFATORY STATEMENT.

1.      This petition respectfully seeks the review by this Honorable Court of the ORDER, dated xxx, issued by the Hon. Xxx, Presiding Judge of the Regional Trial Court (RTC), Branch xxx , of  xxx City by way of Certiorari under Rule 65.

1.1.           A certified true copy of which is attached hereto as Annex “A” hereof, with sub-markings.

2.    The petitioner respectfully submits that the Public Respondent acted without or in excess of her jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in the issuance of the questioned Order.

3.     There is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law in seeking the reversal or nullification of the said Order except this Rule 65 Petition.

4.    This Petitioner submits that this Petition is meritorious, is not being prosecuted manifestly for delay, and it raises substantial questions that require consideration by this Honorable Court (Sec. 8, Rule 65).   

X x x.

II.               ISSUE.

5.     The sole issue in this Petition is:


III.           DISCUSSION.

6.    The herein Petitioner admits the general doctrine on appeals in Ejectment Cases (i.e., “general” in the sense that they are subject to exceptions) is that, under Rule 70, to perfect an appeal within the 15-day appeal period, three (3) things must be complied with by the Appellant:

6.1.          Filing of the Notice of Appeal with the MeTC, with payment thereat of the corresponding Appeal Fees;

6.2.        Supersedeas Bond equivalent to the value of the damages awarded by the MeTC (actual damages, attorney’s fees, and costs of suit); and

6.3.         Regular deposits with the Appellate Court (i.e., RTC) of the amounts of the monthly rentals determined by the MeTC.

7.     The herein Petitioner admits that she failed to comply with the above requirements.

7.1.          The petitioner failed to post a supersedeas bond in the MeTC within the 15-day appeal period.

7.2.         The Petitioner failed to make regular deposits of the monthly rentals awarded.

8.    Although it is ideal to post the Supersedeas Bond at the MeTC level within the 15-day appeal period, there are jurisprudence where the Supreme Court had, in the past, allowed the delayed posting thereof at the RTC (appellate)-level.

8.1.          In the case of the Petitioner, considering her old age, sicknesses, disabilities, financial straits, and economic sufferings, assisted by her new Counsel, she filed with Branch 253 (appellate court) the aforementioned “urgent verified motion for reduction…”. (Annex “E”, supra).

8.2.        The objective of her motion was precisely to comply with the requirements of Supersedeas Bond and Regular Deposits of Monthly Rentals of Rule 70, albeit on a reduced amount, subject to motion hearings in and the merciful approval of Branch 253.

8.3.         The spirit was to invoke the sense of compassion justice of Branch xxx to allow her to post a reduced Bond and Monthly Deposits.

8.4.        At the time of the filing by Petitioner of the said “urgent verified motion for reduction …” only one (1) month had lapsed from the end of the 15-day appeal period.

8.5.         The issue of complying with the requirement of making regular deposits was minor and insignificant and not substantially harmful to the Private Respondent as of that time.

9.    The Public Respondent  held, in her questioned Order, dated xxx, that she could have positively considered the plight of the Petitioner had the latter filed her motion for reduction of supersedeas bond much earlier – without clearly mentioning the proper time to do so.

9.1.          The Public Respondent considered against the Petitioner the fact that the Petitioner had filed her motion for reduction of supersedeas bond almost one (1) month (actually, 27 days, per the computation of undersigned Counsel) from the end of the 15-day appeal period.

10.                        The Public Respondent gravely abused her discretion in ruling:

(a) That the motion for reduction of supersedeas bond should be filed within the 15-day appeal period, or

(b) That the appellate court (RTC) had no power to exercise its sound discretion to entertain and approve a belated motion for reduction of supersedeas bond while the appeal is pending before it.

11.  Nothing in Rule 70 supports the restrictive conclusions of Public Respondent.

11.1.       On the contrary, Sec. 6, Rule 1, of the Rules of Court speak of liberality (to read as compassionate justice) in court litigations. Thus:

SEC. 6.  Construction.—These Rules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding.


In the case of Planas vs. Judge Ernesto A. Reyes, RTC Branch III, Pasay City, A. M. RTJ-05-1905, February 23, 2005, the Supreme Court:

(1) allowed the appellate RTC Judge to exercise its sound judgment or discretion in approving the supersedeas bond filed before it;

(2) affirmed the denial by the appellate RTC Judge of the immediate execution of ejectment judgment for lack of compelling reasons, despite posting of the required supersedeas bond with the appellate RTC.

12.1.      The real issue in the said case was whether or not immediate execution could be had after defendant-appellant has perfected its appeal but failed to post a supersedeas bond before the trial court.

12.2.    Sec. 19 of Rule 70 of the Revised Rules of Civil Procedure speaks of immediate execution in case of failure of defendant to perfect and appeal within the mandatory appeal period.

12.3.     In the said case, the Supreme Court stated that the plaintiff tarried and did not immediately file a motion for execution below upon the rendition and before defendant-appellant perfected its appeal.  Rather the plaintiff allowed the defendant to perfect its appeal leaving the trial court without option but to elevate the case for review to the Regional Trial Court.

12.4.    It was held that after the perfection of an appeal, the lower court can no longer require the filing of a supersedeas bond and execution based thereon is void. (citing Singson v. Babida, 79 SCRA 111). 

12.5.     With the approval by the appellate court (RTC), in the exercise of its sound judgment or discretion of the supersedeas bond posted by the defendant-appellant and it appearing that there was “no compelling and urgent reason to order immediate execution pending appeal”, the motion for immediate execution of the judgment of the MeTC should be denied, the Supreme Court held.

12.6.    The abovecited case supports the EXERCISE OF DISCRETION by the RTC (appellate court in Ejectment Appeal) on: 

(a) Approval of the supersedeas bond to stay execution; and

(b) Denial of execution pending appeal for lack of compelling reasons shown.

13. In the case of Tagulimot vs. Makalintal and Tanangunan, 85 Phil 40, reiterated   in  Acibo vs. Hon. Higinio Macadaeg, et. al, G. R. No. L-19701, June 30, 1964, the Supreme Court ruled that the RTC may allow the filing of the supersedeas bond (which should have been filed in the MeTC) if the judgment is not yet executed and, to this end, the RTC has the discretion to allow a reasonable time within which the supersedeas bond may be filed.  The discretion is to allow or deny a supersedeas bond.

14. In the case of Quan vs. Sheriff of Manila, et. al., G. R. No. L-27160,   May 30, 1974,  the Supreme Court ruled while Section 8 of Rule 70 requires the filing of a supersedeas bond with, and its approval by, the inferior court, it was been held that the RTC, which has acquired jurisdiction over the case by the perfection of the appeal , has the power to permit the appellant to post the supersedeas bond which he had failed  to submit to the inferior court.

15. In the case of Galan Realty Co., Inc. vs. Hon. Arranz, et. al, A. M. No. MTJ-93-878, October 27, 1994, the Supreme Court ruled that the RTC, in its discretion and “upon good cause shown”, as the appellate court in Ejectment Appeals, may allow the defendant to file the supersedeas bond in the said court.


The doctrine of social and compassionate justice is so well enshrined in our Jurisprudence that it needs no voluminous citations.

16.1.      Equity considerations provide an exception to technical and restrictive interpretation of procedural rules. Equity is justice outside the law.

16.2.    Equity is ethical rather than juridical.

16.3.     It belongs to the sphere of morals than of law. 

16.4.    It is  grounded on the precepts of conscience and not on any sanction of positive law.

16.5.     Weighed in the scales of justice, conscience and reason tip in favor of the herein Petitioner who is old, sickly, widow, jobless, poor, and helpless.

16.6.    Social and compassionate justice dictate that her case be considered with mercy and compassion.

16.7.     Indeed, equity should be accorded due weight because the administration of justice is:

(a) not only secundum rationem (according to reason) but

(b) also secundum caritatem (according to charitable heart).

17. PENDENCY OF RELATED CIVIL CASE (Civil Case No. xxx-0091). –

The herein Petitioner admits the doctrine that, as a general rule, the pendency of an ordinary civil action involving ownership, quieting of title, and similar issues will not suspend or enjoin the enforcement of a final and executory Ejectment Decision. But admits of exceptions, in the interest of justice.

18. In the first place, the MeTC Decision is not yet final and executory.

18.1.      It is still under appeal in Branch xxx.

18.2.    The parties in the Ejectment Appeal have yet to file their respective Memoranda in Branch xxx.


The case of MID PASIG LAND DEVELOPMENT CORPORATION vs. COURT OF APPEALS, HON.RODRIGO B. LORENZO, in his capacity as Presiding Judge of RTC-Pasig City, Branch 266 and ROCKLAND CONSTRUCTION COMPANY, INC., G.R. No. 153751, October 8, 2003, is illuminating.

19.1.      Litis Pendentia. - In order to sustain a dismissal of an action on the ground of litis pendentia, the following requisites must concur:

(a) identity of parties, or at least such as representing the same  interest in both actions;

(b) identity of rights asserted and relief prayed for, the relief being founded on the same facts, and

(c) identity in the two cases should be such that the judgment that may be rendered in the pending case would, regardless of which party is successful, amount to res judicata in the other.

19.2.     In the said case, the Supreme Court noted that a perusal of the “complaint for specific performance” shows that its main purpose was “to prevent petitioner from ejecting respondent from the leased property”

19.2.1.          Although the complaint sought to compel petitioner to execute a formal lease contract, “its ultimate intent is to preclude petitioner from filing a complaint for ejectment and for respondent to maintain possession of the property”, the Supreme Court noted. 

19.2.2.        The right to the execution of a formal agreement was hinged upon the more fundamental issue of “whether respondent has a right to the possession of the property under the alleged implied contract of lease”, the Supreme Court stated. 

19.2.3.         In other words, according to the Supreme Court, the central issue to be resolved in the “specific performance case” unmistakably boiled down to respondent’s “right to continued possession of the premises, which issue is essentially similar, if not identical, to the one raised in the unlawful detainer case before the MeTC”.

19.3.     Hence, the Supreme Court in the abovecited case held that the Court of Appeals erred in finding that “RTC Civil Case No. 68213 and MeTC Civil Case No. 8788 have different causes of action”. 

19.3.1.          The ultimate relief sought in the RTC was not really “to compel the defendant to formalize in a public instrument its lease agreement with plaintiff” but “to enjoin petitioner from filing the proper action for respondent’s ejectment so that it could remain in possession of the property”, the Supreme Court stated. 

19.3.2.         This was evident in respondent’s prayer in the “complaint for specific performance”, where it expressly sought for the issuance of an order from the trial court “prohibiting defendant from instituting any action for the ejectment of plaintiff from the leased premises”, the Supreme Court noted.

19.4.    Since the “question of possession” of the subject property is at the “core of the two actions”, the Supreme Court stated that the parties in the said case were actually litigating over the “same subject matter”, which is the leased site, and on the “same issue” – respondent’s right of possession by virtue of the alleged contract. 

Note: This is exactly the scenario in Civil Case No. xxx-0074 in relation to Civil Case No. xxx-0091 referred to in the Statement of Facts in this Petition.

19.5.     In the aforecited case of MID PASIG LAND DEVELOPMENT CORPORATION, “at the time of the filing of the RTC case, petitioner had communicated to respondent that it had filed an ejectment against it for violation of the original lease agreement”.

19.5.1.          Thus, the RTC case, while “purportedly one for specific performance” was “in reality a preemptive maneuver intended to block the complaint for ejectment, considering that it was brought merely three days after respondent received the communication from petitioner”, according to the Supreme Court. 

19.5.2.         The RTC case was instituted “in anticipation of its forthcoming move to eject respondent from the property”, said the Supreme Court. 


Consider this ruling in relation to Civil Case No. xxx-0091 that was filed by herein Petitioner against the Private Respondent in Branch xxx.

19.5.3.         It was filed “to bind petitioner’s hands, so to speak, and to lay the ground for dismissal of any subsequent action that the latter may take pursuant to the notice of eviction”, stated the Supreme Court.
To repeat:

This was one of the main purposes for the commencement by herein Petitioner of Civil Case No. xxx-0091 (annulment of agreement to sell, etc.) against the Private Respondent involving the same subject matter.


20.                      The Petitioner respectfully seeks from this Honorable Court the issuance of the following injunctive reliefs:

(a) An urgent ex parte TEMPORARY RESTRAINING ORDER (TRO) immediately upon filing of this Petition, and

(b) A WRIT OF PRELIMINARY INJUNCTION (WPI) upon notice to and upon filing of a Comment by the Private Respondent.

21. Sec. 7, Rule 65  grants to this Honorable Court the power to issue “x x x  a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties” pending this proceeding

22.                       The Petitioner admits that the filing of this petition “shall not interrupt the course of the principal case unless a temporary restraining order or a writ of preliminary injunction has been issued against the public respondent from further proceeding in the case” (Id.). 

22.1.    Hence, she invokes the sense of compassionate justice of this Honorable Court by issuing the urgent injunctive reliefs sought hereinabove.

23.                        The miserable, pitiable, and unfortunate personal circumstances of the Petitioner are as follows:

23.1.     She is 79 years old now.

23.2.   She has been a widow since 2001.

23.3.    She is jobless.

23.4.   Her old age and poor health prohibits her from engaging in gainful work.

23.5.    She relies on the financial support of her child, xxx (who has her own family to support, too).

23.6.   She is afflicted with various geriatric-related diseases considering her old age, e.g. hypertension, diabetes,  etc.

23.7.    She has resided and continues to reside for almost 25 years now in the property subject matter of the underlying (a) Civil Case No. xxx-0071 (Ejectment Appeal) and (b) Civil Case No. xxx-0091 (annulment of agreement to sell, etc.) since 1991 or thereabout.

23.8.   She has no wealth of her own.

23.9.   She owns no real property except for a small memorial lot gifted to her by her children in the past.

23.10.                       To enforce the questioned Order, dated xxx would have the unjust effect of ejecting her from the property subject matter of the underlying Civil Case No. xxx-0074 in relation to Civil Case No. xxx-0091 while the said two related cases are still pending before the Trial Court a quo.

23.10.1.    It will be unjust, cruel, inhuman, unkind, and premature to allow such an unfair scenario (i.e., execution pending appeal).

24.                       The Petitioner respectfully submits that she is entitled to the TRO and WPI she seeks in this Petition against the questioned Order, dated xxx.

24.1.    The enforcement pendente lite by the Respondents of the said Order during the pendency of this Petition and during the pendency a quo of the underlying Civil Case No. xxx-0074 in relation to the related Civil Case No. xxx-0091 would surely work injustice to the Petitioner.

24.2.   The enforcement pendente lite by the Respondents of the questioned Order would violate the constitutional and human rights of the Petitioner to compassionate justice, merciful due process of law, and  benevolent equal protection of the law with respect to this Petition and in relation to the pending underlying Civil Case No. xxx-0074 (Ejectment Appeal) and the pending related Civil Case No. xxx-0091.

24.3.   If the TRO and the WPI prayed for above are not issued y the Honorable Court,  whatever judgment this Honorable Court may promulgate in this action would be rendered ineffectual. (Sec. 3, Rule 58).

25.                       The Petitioner is prepared to post a BOND at such amount and under such terms and conditions as may be fixed by this Honorable Court.

25.1.     The Bond would adequately protect the rights and interests of the Private Respondent in this action in relation to the underlying Civil Case No. xxx-0074 (Ejectment Appeal) vis-à-vis the related Civil Case No. xxx-0091.

26.                        This Petition is duly verified to serve as the AFFIDAVIT OF MERIT of the Petitioner at the same time, pursuant to Rule 58.

 V.               RELIEF.

WHEREFORE, premises considered, it is respectfully prayed that:

1.      Upon filing of this Petition with this Honorable Court, an urgent ex parte Temporary Restraining Order (TRO) be issued enjoining the Public Respondent to suspend further proceedings in the underlying Civil Case No. xxx-0074;

2.    Upon notice to and filing of a Comment by Private Respondent, a Writ of Preliminary Injunction (WPI) be issued by this Honorable Court enjoining the Public Respondent from implementing its Order, dated xxx,  in the matter of the execution pending appeal of the Judgment of the Metropolitan Trial Court vis-à-vis Civil Case No. xxx-0074 until this Honorable Court shall have resolved this Petition with finality;

3.     This Petition be given DUE COURSE;

4.    The questioned ORDER, dated xxx (Annex “A”, supra) of the Public Respondent be SET ASIDE, REVERSED AND NULLIFIED without prejudice to the continuation of the proceedings on the merits in Civil Case No. xxx-0074 (Ejectment Appeal), in relation to Civil Case No. xxx-0091, before the Public Respondent for final adjudication.

5.     The Writ of Preliminary Injunction (WPI) against the questioned Order, dated xxx, AND AGAINST THE Public Respondent be declared PERMANENT insofar as the matter of “execution pending appeal” by Public Respondent is concerned.
FURTHER, the Petitioner respectfully prays for such and other reliefs as may be deemed just and equitable in the premises.

          xxx City, July xxx, 2015.

Counsel for Petitioner
Unit 15, Star Arcade, C. V. Starr Ave.
Philamlife Village, Las Pinas City 1740
Tel. Nos. 8725443 & 8462539
X x x.

X x x.

x x x.”