SPECIAL PROCEEDINGS

RULE 62 Interpleader By: Nilo AnzoRule 62, Section 1 of the Rules of Court provides:Section 1. When interpleader proper. Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no interest whatever in the subject matter, or an interest which in whole or in part is not disputed by the claimants, he may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves.The Supreme Court, in the case of Alvarez vs. Commonwealth (65 Phil 302), clearly defined interpleader as a special civil action whereby a person who has property in his possession or an obligation to render, wholly or partially, without claiming any right therein, or an interest which in whole or in part is not disputed by the claimants, comes to court and asks that the persons who consider themselves entitled to demand compliance with the obligation to be required to litigate among themselves in order to determine finally who is entitled to the same.To illustrate: Mr X is leasing a building owned by Mr. O. When the latter died, Mr. A came to Mr. X and said that he is entitled for the monthly rentals as he was the heir of Mr. O. The following day, Mr. B came to Mr. X, also claiming that he was the heir of Mr. O, thus entitled to the monthly rentals. There seems to be confusion on the part of Mr. X on whom should he pay the rentals. What should Mr. X do? Mr. X may file a special civil action against Mr. A and Mr. B under Rule 62 (interpleader) and compel them to prove in court on who is lawfully entitled to receive the rentals.For an action of interpleader to prosper, it is required that:(a) The plaintiff claims no interest in the subject matter or his claim thereto is not disputed;(b) There must be at least two or more conflicting claimants;(c) The parties to be interpleaded must make effective claims; and(d) The subject matter must be one and the same.The subject matter may be a property, real or personal, or an obligation to be rendered wholly or partially.Rule 62 provides that the action must be brought by a disinterested person who has no claim of any right in the property or in the obligation to be performed, or claims an interest, but which, in whole or in part, is not disputed by the conflicting claimants.I do not agree with the rule that it should be instituted only by a disinterested person, as herein described. In my opinion, the Rules should also allow one of the conflicting claimants to institute a special civil action of interpleader but only in the event that the disinterested person, as described herein, fails to perform any act in order to determine the person entitled to receive the property, or to be benefitted by the obligation, in dispute. In which case, there could be no delay in the speedy determination of who, among the claimants, is entitled to be benefitted. Furthermore, interpleader should be allowed to be instituted by one of the claimants in case the disinterested person should fail or refuse to resort to any other remedy, i.e. consignation of property in dispute, in the final determination of the dispute, otherwise, the claimants rights might be prejudiced. While it is true that any of the claimants may file an ordinary civil action to protect his/her rights regarding the matter, the special civil action of interpleader may be a faster and more convenient remedy which can also aid the courts in the speedy disposal of cases.

RULE 63 Declaratory Relief and Similar RemediesBy: Nilo AnzoRule 63, Section 1 of the Rules of Court provides:Section 1. Who may file petition. Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance or any other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder.An action for reformation of an instrument, to quiet title to real property or remove clouds therefrom, or to consolidate ownership under Article 1607 of the Civil Code, may be brought under this Rule. (1a, R64; En Banc Resolution, Feb. 17, 1998.)

An action for declaratory relief is only proper when the following requisites are present:(a) There must be a judicial controversy;(b) The controversy must be between persons whose interests are adverse;(c) The person seeking declaratory relief must have a legal interest in the controversy; and(d) The issue involved must be ripe for judicial determination.In the case of Martelino vs. National Home Mortgage Finance Corporation (G.R. No. 160208, June 30, 2008), the Supreme Court held that under Sec 1, Rule 63, a person must file a petition for declaratory relief before breach or violation of a deed, will, contract, other written instrument, statute, executive order, regulation, ordinance or any other governmental regulation. The purpose of the action is to secure an authoritative statement of the rights and obligations of the parties under a statute, deed, contract, etc., for their guidance in its enforcement or compliance and not to settle issues arising from its alleged breach. Where the law or contract has already been contravened prior to the filing of an action for declaratory relief, the court can no longer assume jurisdiction over the action. Under such circumstances, inasmuch as a cause of action has already accrued in favor of one or the other party, there is nothing more for the court to explain or clarify, short of a judgment or final order.I believe that this action under Rule 63 is superbly enacted because it provides persons a remedy in anticipation of an impending breach or violation of any contract, deed, rules, regulation, etc. Undoubtedly, I agree with the Rule that this action should be instituted prior to the said breach or violation. If the Rule were otherwise, it will be prejudicial for the injured party in the sense that the offender may be given the opportunity to evade liability for the aforesaid breach or violation. Also, the purpose of the law in sanctioning the offender for breach or violation of an agreement or regulation through causes attributable to him, causing injury/ies to the aggrieved party, will be defeated.The Rule provides for the protection not only of one but all the parties. Protection for one of the parties to be able to avoid an anticipated breach or violation thus escaping possible liability, on one hand, and protection for the other party/ies to be shielded against an anticipated injury, on the other hand.

RULE 64 Review of Judgments and Final Orders or Resolutions of the Commission on Elections and the Commission on AuditBy: Nilo AnzoRule 64, Section 2 of the Rules of Court provides:Section 2. Mode of Review. A judgment or final order or resolution of the Commission on Elections and the Commission on Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65, except as hereinafter provided.

In the case of Jumamil vs. COMELEC (GR No. 167989-93, March 6, 2007), the Supreme Court ruled that the final orders, rulings and decisions of the COMELEC reviewable under Rule 64 are final decisions or resolutions in the exercise of the adjudicatory or quasi-judicial powers of COMELEC en banc, not of a division, nor an interlocutory order of a division. The Court has no power to review via certiorari, an interlocutory order or even a final resolution of a Division of the COMELEC.The Rule explicitly provides that the special civil action under Rule 64 shall be brought by the aggrieved party to the Supreme Court. It may seem that the Rule disregarded the principle of hierarchy of courts because the petition is brought directly to the Supreme Court without regard to the concurrent jurisdiction of the Regional Trial Courts and Court of Appeals over said petition. However, in the case of Bagabuyo vs. COMELEC (GR No. 176970, December 8, 2008), the Supreme Court elucidated that while the original jurisdiction of the SC over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus is shared with the Court of Appeals and the Regional Trial Courts, a direct invocation of the SCs jurisdiction is allowed only when there are special and important reasons therefor, clearly and especially set out in the petition. Among the cases that are considered sufficiently special and important to be exceptions to the rule are petitions for certiorari, prohibition, mandamus and quo warranto against our nations law makers when the validity of their enactments is assailed. As an action against a COMELEC en banc resolution, the case falls under Rule 64 of the Rules of Court that in turn requires a review by the SC via petition for certiorari. For these reasons, the principle of hierarchy of courts does not appear to be stumbling block in the SCs consideration of the present case.I agree with the Rules as well as in the ruling of the Supreme Court that the petition under Rule 64 shall be brought to the Supreme Court directly. The final decisions, orders or resolutions of COMELEC and COA, when assailed through petition for certiorari, are matters of national importance, hence, jurisdiction over said petition properly rests on the paramount judicial body, the Supreme Court. The latter has the competence and proficiency that are suitably and essentially required in the final, speedy and prompt determination of the aforesaid petition.Moreover, forum shopping or multiple petitions on the same case will not be resorted to by unscrupulous litigants since only one body shall be hearing such petition.

RULE 65 Certiorari, Prohibition and MandamusBy: Nilo AnzoCertiorari is a writ issued from a superior court to any inferior court, board or officer exercising judicial or quasi-judicial functions whereby the records of a particular case is ordered to be elevated up for review and correction in matters of law. It is a prerogative writ and issued in the exercise of Judicial Discretion. For a petition for certiorari to prosper, the following requisites must be present:(a) There must be a controversy;(b) The tribunal, board or officer against whom the controversy is brought exercises judicial or quasi-judicial functions;(c) The tribunal, board or officer has acted without jurisdiction, or in excess of its jurisdiction or grave abuse of discretion; and(d) There is neither appeal, nor any plain, speedy or adequate remedy in the ordinary course of law.Prohibition is a writ by which a superior court prevents the inferior courts, corporation, board or persons from usurping or exercising a jurisdiction or a power with which they have not been vested by law (Matuguina Integrated vs. Court of Appeals). It is directed against the proceedings that are done without or in excess of jurisdiction, or with grave abuse of discretion, there being no appeal or other plain, speedy and adequate remedy in the ordinary course of law (Vergara vs. Rugue).Mandamus is a writ issued in the name of the state, to an inferior tribunal, a corporation, board or person, commanding the performance of an act which the law enjoins as a duty resulting from an office, trust or station. The ground for mandamus is: (a) the tribunal, board, corporation or person unlawfully neglects the performance of an act which the law specifically enjoins a s a duty resulting from an office, trust, or station; or (b) the said tribunal, corporation, board or person unlawfully excludes another from the use or enjoyment of a right or office to which such others are entitled.The Rule is explicit that the petitions for certiorari and prohibition are properly instituted when there are errors of jurisdiction committed by the lower court, or grave abuse of discretion which is tantamount to lack of jurisdiction. In the case of Matute vs. Macadaeg, et. al. (99 Phil. 340), the Supreme Court held that where the error is not one of jurisdiction but an error of fact or law which is a mistake of judgment, appeal is the remedy.I submit that the latter rule, in the interest of justice and fair dealings, should be relaxed in certain instances. Sometimes, it may be necessary to inquire into factual issues in order to arrive at a sound pronouncement or judgment regarding the allegations of grave abuse of discretion amounting to lack or excess of jurisdiction as a ground for the special civil actions of certiorari and prohibition. As the Supreme Court held in the case of Balba vs. Peak Development, Inc. (GR No. 148288, Aug. 12, 2005), the conflicting views on the factual issues or the insufficiency of evidence supporting the respective allegations of the parties necessitated the review thereof by the respondent Court of Appeals at the very least to determine the existence of grave abuse of discretion.I agree with the Supreme Court that the aforementioned situation may dependably be treated as an exception to the restrictive rule that in said special civil actions only strictly errors of jurisdiction can be considered by the courts.

RULE 66 Quo WarrantoBy: Nilo AnzoQuo Warranto is a demand made by the state upon some individual or association to show by what right they exercise some franchise or privilege appertaining to the State which according to the Constitution and laws of the land, they cannot legally exercise by virtue of grant or authority of the State. (44 Am. Jur. 88-89)Quo Warranto is the remedy to try disputes with respect to the title to a public office. Where, however, there is no dispute as to who has the title to the public office but the adverse party, without lawful ground, prevents the rightful occupant from assuming the office, mandamus is the remedy to oust the usurper (Lota vs. Court of Appeals, et. al., L-14803, June 30, 1961).Rule 66, Section 11 of the Rules of Court provides:Section 11. Limitations. Nothing contained in this Rule shall be construed to authorize an action against a public officer or employee for his ouster from office unless the same be commenced within one (1) year after the cause of such ouster, or the right of the petitioner to hold such office or position, arose; nor to authorize an action for damages in accordance with the provisions of the next preceding section unless the same be commenced within one (1) year after the entry of the judgment establishing the petitioners right to the office in question.The Supreme Court held in the case of Abeto vs. Rodas (82 Phil. 59) that periods within which the quo warranto action should be brought are conditions precedent to the existence of a cause of action. Consequently, the action cannot prosper if it was brought beyond said periods even if such a defense was not raised by the defendant in the lower court. However, in the case of Cristobal vs. Melchor, et. al. (L-43203, July 29, 1977), the one-year period was not applied, on equitable considerations, against an employee who failed to seek relief by quo warranto within the period. It was proved that his failure to join his co-employees as a plaintiff in the quo warranto action was due to the fact that not only did he continuously press for his reinstatement but he was actually promised such reinstatement.I agree with the Supreme Court that the one year limitation provided for in Rule 66 must be relaxed but only on reasonable, justified and unbiased circumstances where the paramount interest of justice could be served. There are exceptional situations wherein the plaintiff failed to seek relief by quo warranto due to reasons that are not imputable to him. The case of Cristobal vs. Melchor, et. al. is a reasonable exceptional case which illustrates that in the paramount interest of justice and fair dealings and for rational and lawful events, the one-year limitation on the institution of quo warranto proceedings may be set aside and that said quo warranto proceedings shall be allowed to prosper.

RULE 67 Expropriation By: Nilo AnzoAn action for expropriation is an exercise of the State of its one of the inherent powers, the right of eminent domain. Eminent domain is the right of the State to acquire private property for public use upon the payment of just compensation. That right extends to private property partly or entirely personal and the process of acquisition is substantially the same. However, such right is subject to constitutional limitations. Section 1, Article III of the 1987 Constitution provides that No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws. The 1987 Constitution further provides, in Section 9, Article III, that Private property shall not be taken for public use without just compensation. The requirement of due process calls for a rule of procedure to be observed in the exercise of the right of eminent domain which is more familiarly known in our jurisdiction as expropriation. Expropriation is the power of the sovereign state to take or authorize the taking of any property within its jurisdiction for public use without the owners consent (18 Am. Jur. 631). If the owner consents, there is no need of filing the case.As to the ascertainment of just compensation, Section 5, Rule 67 of the Rules of Court provides:Section 5. Ascertainment of Compensation. xxx, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. xxx xxxxxx xxx The Supreme Court has defined just compensation as the full and fair equivalent of the property taken from its owner by the expropriator. The measure is not the takers gain but the owners loss. The word just means real, substantial, full and ample.I agree with the Rule that the ascertainment of the just compensation for the property to be taken shall be left to the sound judgment of commissioners composed of disinterested and competent persons appointed by the court. If the Rule were otherwise, there would be a possible danger that the owner of the property might be placed in a prejudicial situation wherein he would not receive the just payment for the property forcibly taken from him. On the other hand, if the determination of the compensation shall be given unilaterally to the owner of the property, there is a danger that the sovereign state might be placed in a prejudicial situation, such as when the compensation for the property to be taken would tend to be unreasonable, excessive and unconscionable.The right of eminent domain is exercised by the State out of necessity for the furtherance of general welfare. By virtue of the constitutional limitation as to the deprivation of property without due process of law, the sovereign states right of eminent domain must be exercised with utmost precaution. When properly exercised, the owner of the property to be taken shall be given what is due him. The compensation shall be just, substantial, ample and full. By granting the power of ascertainment of just compensation to disinterested and competent persons, the purpose of the law will not be bypassed and violated.

RULE 68 Foreclosure of Real Estate MortgageBy: Nilo AnzoA mortgage is an interest in land created by a written instrument providing security for the performance of a duty or the payment of debt. The mortgage operates a s a conveyance of the legal title to the mortgagee, but such title is subject to defeasance on payment of the debt or performance of the duty by the mortgagor.Foreclosure is the remedy available to the mortgagee by which he subjects the mortgaged property to the satisfaction of the obligation to secure which the mortgage was given. Simply, it is a procedure by which the mortgaged property is sold on default of mortgagor in satisfaction of mortgage debt.A mortgagee may bring a personal action for the amount due, instead of a foreclosure suit, in which case he will be deemed to have waived his right to proceed against the property in a foreclosure proceeding. (Movido vs. RFC, et al., 105 Phil. 886)In a foreclosure action, the following shall be joined as defendants:(a) The persons obligated to pay the mortgage debt (Rule 68, Sec. 1);(b) The persons who own, occupy or control the mortgaged premises or any part thereof (Soriano vs. Enriquez, 24 Phil. 584);(c) The transferee or grantee of the property (De Villa vs. Fabricante, 105 Phil. 672); and(d) The second mortgage or junior encumbrancer, or any person claiming a right or interest in the property subordinate to the mortgage sought to be foreclosed; but if the action is by the junior encumbrancer , the first mortgagee may also be joined as defendants (De la Riva vs. Reynoso, 61 Phil. 734).The 1987 Constitution of the Philippines guarantees that due process shall always be observed in all proceedings, especially when it involves depriving a person of right to property, real or personal. I agree that the abovementioned persons shall be included as defendants in a foreclosure action because in that sense, notice shall be served upon them, thus affording them their constitutional right of due process.RULE 69 PartitionBy: Nilo AnzoRule 69, Section 1 of the Rules of Court provides:Section 1. Complaint in action for partition of real estate. A person having the right to compel the partition of real estate may do so as provided in this Rule, setting forth in his complaint the nature and extent of his title and an adequate description of the real estate of which partition is demanded and joining as defendants all other persons interested in the property.The partition of property may be voluntary effected by agreement or compulsorily as under the above Rule 69 of Rules of Court. Even if the parties had resorted to judicial partition, they may still make an amicable partition of the property as provided for in Sections 2 and 12 of the same RuleUnder above rule, all co-owners, all persons interested may be joined as parties as all of them are indispensable parties. Without naming all of them, even if only one co-owner is omitted, the action for partition cannot proceed. All the co-owners must be named in the action.I agree with the Rule that all the co-owners and all persons having an interest in the partition shall be joined as parties. Not only because they are regarded as indispensable parties but also because the interest of justice demands that due process shall be observed in all proceedings. Moreover, the law requires that all person shall be afforded equal protection of the laws. Section 1, Article III of the 1987 Constitution provides that No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws. If the Rule were otherwise, there will be a possibility that any co-owners or any interested person may be placed in a prejudicial situation wherein no notice will be served on them, thus depriving them of the constitutional guarantee of due process and equal protection of the laws. They will not be notified of an impending partition in which they are lawfully entitled to be given the opportunity to take part.RULE 70 Forcible Entry and Unlawful DetainerBy: Nilo AnzoRule 70, Section 1 of the rules of Court provides: Section 1. Who may institute proceedings, and when. Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person, may, at any time within one year after such unlawful deprivation or withholding of possession, bring an action in the proper Municipal Trial Court against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs.There are three kinds of action for the recovery of possession of real property, to wit: (a) accion interdictal; (b) accion publiciana; and (c) accion reivindicatoria. Rule 70 provides for accion interdictal or an ejectment proceeding which may be either that of forcible entry or unlawful detainer, which is a summary action for the recovery of physical possession where the dispossession has not lasted for more than one year, and should be brought in the MTC.Under Section 12 of the same Rule, it is provided that cases requiring referral for conciliation, where there is no showing of compliance with such requirement, shall be dismissed without prejudice, and may be revived only after that requirement shall have been complied with.I agree with the above rule that when a case clearly appears to be capable of being settled amicably, and such was made by law a condition precedent before the action under this Rule could prosper, failure to comply with such a requirement shall be a ground for the dismissal of the action. It is a basic principle that in civil cases, the law favors the settlement of disputes between the conflicting parties. Settlement of disputes before the commencement of an action will aid the court in declogging the huge number of cases that are pending for judgment. When a case appears to be capable of being compromised, without prejudice to the rights of the parties, utmost effort shall be exerted in settling such dispute so that the purpose of the law in the speedy disposition of cases will be achieved.

RULE 71 ContemptBy: Nilo AnzoContempt is a disregard of or disobedience with 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 a body. (17 C.J.S. 4)In the case of Perkins vs. Dir. Of Prisons (58 Phil. 271), the Supreme Court ruled that the power to punish contempt, is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings and the enforcement of judgments, orders and mandates of the court and, consequently to the due administration of justice. Contempt may be direct or indirect. Direct contempt is one committed in the presence of or so near a court, while indirect contempt is one not committed within the presence of the court. The former is summary in nature while the latter requires a hearing.Rule 71, Section 8 of the Rules of Court provides that 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.I agree with the above Rule that the offender shall be imprisoned until his performance of that which is required of him. In Cornejo vs. Tan (85 Phil. 772), the Court said the reason behind the power to punish for contempt is that respect of the courts guarantee the stability of that institution, and without such guarantee, such institution will be resting on a very shaky foundation.This is not in violation of a constitutional right because the offenders liberty depends on his performance of an act which he is required to perform. Also, the said judgment cannot be said to be excessive or unjust because to order that one be imprisoned for an indefinite period in a civil contempt is a purely remedial measure. Its purpose is to coerce the contemnor to do an act within his or her power to perform. But there must be a clear and contumacious refusal to obey should such power be exercised. The power of the court to punish for contempt should be exercised on the preservative and not on the vindictive principle. The Supreme Court held in the case of Lipata vs. Tutaan, 1983 that such power being drastic and extraordinary in its nature should not be resorted to unless necessary in the interest of justice. Only occasionally should the court invoke its inherent power in order to retain respect without which the administration of justice must falter or fail.

Rule 91 Escheat By: Maria Emma Gille MercadoEscheat is a proceeding whereby the real and personal property of a deceased person become the property of the State upon his death without leaving any will or legal heirs. (Municipal Council vs. Colegio de San Jose, Inc. 65 Phil. 323) Rule 91 provides that if a person died intestate and there are no heirs of the estate of the deceased person, the Solicitor General or his representative in behalf of the Republic of the Philippines could file a petition for escheat of the properties of such deceased person. In short, the properties of the deceased person will go to the Republic of the Philip-pines as the State is considered an heir of any deceased person. It does not mean that escheat proceedings can only take place when a person dies leaving no will and no heirs. There are several instances that even if there is a will, there are heirs or even if the owner of the property has not died escheat proceedings will still commence. One instance is where the testators will has not been admitted to probate as when there is a defect in its form. In this case, the law shall consider that the decedent died intestate and if there are no heirs, then the Solicitor General may file a petition for escheat. There some special laws, like Unclaimed Balances Act, where escheat proceedings could proper as long as the requisites provided under such statute are present. Under the Unclaimed Balances Act, bank accounts that became dormant for a period of 10 years, where there is neither deposit nor withdrawal in such account, the Government may escheat the unclaimed balance in these accounts. There could also be escheat proceedings when there is a violation of the Constitution or statutes. This is commonly known as Reversion Proceedings. There is Reversion when property is alienated in violation of the Constitution or in violation of law. For example, it is prohibited to sell real properties to an alien because aliens cannot own such properties. But Reversion cannot be allowed, as held in Chavez v. Public Estates Authority (451 Phil. 1), where a Filipino citizen sells land to an alien who later sells the land to a Filipino, the invalidity of the first transfer is corrected by the subsequent sale to a citizen. Similarly, where the alien who buys the land subsequently acquires Philippine citizenship, the sale was validated since the purpose of the constitutional ban to limit land ownership to Filipinos has been achieved. In short, the law disregards the constitutional disqualification of the buyer to hold land if the land is subsequently transferred to a qualified party, or the buyer himself becomes a qualified party.I do not agree with the ruling of the Supreme Court that reversion will not be allowed if the original buyer was an alien, and then later on the title to the property was transferred by succession to the buyers heirs who are qualified parties. Selling of a land to an alien is prohibited, thus the sale is void. As a result, there is no right transferred to such alien. Even though such alien transferred the property to a Filipino, no right will be transferred. The alien did not acquire any right of ownership on the said land because the sale did not vest him such right. If no right was given to him, the subsequent sale of the land to a Filipino transfers no right of ownership on the latter. This should not correct the invalid transfer. Hence, Reversion proceedings can be instituted by the Republic on the said property.

Rule 92 VenueBy: Maria Emma Gille MercadoRule 92 provides for the rules on venue and jurisdiction where the guardianship proceedings shall be instituted. Section 1 of this rule is obsolete in the sense that all petitions for guardianship shall now be filed with the Regional Trial Court of the incompetents residence, or if non-residents, the place where his property is located. The rules on venue under this Rule are the same as that of the settlement court and probate court. Minors and Incompetents other than minority should now be distinguished from each other. While Guardianship of incompetents who are not minors is still governed by Rule 92-97 of the Rules of Court, guardianship of minors are now separately governed by the Rule on Guardianship of Minors. (A.M. No. 03-02-05-SC) Minors are those who are below 18 years old. Unless otherwise provided, majority commences at the age of 18 years. (Art. 234, as amended by R.A. No. 6809)The more interesting part in this Rule is Section 2, the meaning of the word incompetent. Incompetent includes:(1) Those suffering from penalty of civil interdiction;(2) Hospitalized lepers;(3) Prodigals:(4) Deaf and dumb who are unable to read and write;(5) Those of unsound mind; and(6) Those not of unsound mind but by reason of age, disease, weak mind and other similar causes, cannot, without outside aid, take care of themselves and manage their property. I agree with the Implementation of the Rule on Guardianship of Minors distinguishing the minors with the incompetents because guardianship of the latter does not relate to the protection of minor children and the preservation of the unity of the family. The court must be more careful and thorough in appointing the guardians of such minors as they have no power and much knowledge in what is happening around them. As stated by Rizal, (a)ng kabataan ang pag-asa ng bayan, thus we should make sure that while they are still young, they are in good hands. Even though Rule 92-97 of the Rules of Court covers both minors and incompetents other than minority, A.M. No. 03-02-05-SC is limited only to guardianship of minors. Under Section 1 of this Rule, it provides that:Section 1. Where to institute proceedings. Guardianship of a person or estate of a minor or incompetent may be instituted in the Court of First Instance of the province, or in the justice of the peace court of the municipality, or in the municipal court chartered city where the minor or incompetent persons resides, and if he resides in a foreign country, in the Court of First Instance of the province wherein his property or the party thereof is situated; provided, however, that where the value of the property of such minor or incompetent exceeds that jurisdiction of the justice of the peace or municipal court, the proceedings shall be instituted in the Court of First Instance.And on the other hand, Section 3 of the Rule on Guardianship of Minors states that: Sec. 3. Where to file petition. A petition for guardianship over the person or property, or both, of a minor may be filed in the Family Court of the province or city where the minor actually resides. If he resides in a foreign country, the petition shall be flied with the Family Court of the province or city where his property or any part thereof is situated.Clearly, there is a proper designation of the jurisdiction of courts in the rules with the implementation of the said Rule. Vesting the Family Court the exclusive jurisdiction of guardianship of minors made the trial of such action in the proper court that has priority on the protection of the children and preservation of the family.

Rule 93 Appointment of GuardiansBy: Maria Emma Gille MercadoThe objectives of an RTC hearing a petition for appointment of a guardian under Rule 93 of the Rules of Court is to determine, first, whether a person is indeed a minor or an incompetent who has no capacity to care for himself and/or his properties; and, second, who is most qualified to be appointed as his guardian. The rules reasonably assume that the people who best could help the trial court settle such issues would be those who are closest to and most familiar with the supposed minor or incompetent, namely, his relatives living within the same province and/or the persons caring for him. (Alamayri vs. Pabale G.R. No. 151243, April 30, 2008)There are three kinds of guardians under the law:(1) The legal guardian is such by provision of law, without need of appointment, as in the case of the parents over the persons of their minor children or father or in his absence the mother with respect to property of minor children not exceeding P 50,000.00 in value.(2) The guardian ad litem who may be any competent person appointed by the court for purposes of a particular action or proceeding involving the minor.(3) The judicial guardian who is a competent person appointed by the court over the person and/or property of the ward to represent the latter in all his civil acts and transactions, and is one contemplated in the aforementioned rules.Parents are considered the legal guardians over the person of their minor children. When it comes to the properties of the latter, it is provided under Section 7 that:Sec. 7. Parents as guardians. - When the property of the child under parental authority is worth two thousand pesos or less, the father or the mother, without the necessity of court appointment, shall be his legal guardian. When the property of the child is worth more than two thousand pesos, the father or the mother shall be considered guardian of the child's property, with the duties and obligations of guardians under these rules, and shall file the petition required by section 2 thereof. For good reasons the court may, however, appoint another suitable person.But the above provision is now obsolete as the Family Code provides for a new rule. If the property of the minor is only P50,000 or less, it is automatic that the parents are the guardians. If the property or the income of the minor exceeds P50,000, the court must have the discretion on who is the minors guardianI agree with the limitation sets on the parents as the guardians of their children. Our parents are recognized as our legal guardians. It is automatic as it is their natural duty and obligation to take care of our well-being and us but not all parents are the same, they are not perfect. There are those few parents who think only of themselves and not anymore of their children. One of the most common issues that we can see in todays society is about the child actors wherein their parents are squandering the income of their children, who are the breadwinners of the family. Before the court sets this rule, there was nothing limiting the parents as guardianship over the minor and their properties are automatic. There are young stars that unfortunately have parents who took advantage of their children and spend their earnings tend to have nothing when they grew up. It is a sad situation to look at as these kids spend their childhood earning money and yet as they grew old, they did not get to enjoy what they worked for. There is an influx of child stars today, it is a good thing that in the Philippines, the future of these kids are regulated by the courts and the government and the parents could not abuse the property of their minor children.

Rule 94 Bond of GuardiansBy: Maria Emma Gille MercadoJust like any court proceedings, in guardianship, the law requires the post of a bond. The purpose of requiring such is to protect the property of the minor to the end that he may be assured of an honest administration of his funds during his minority and to serve as security to those interested in the property settlement of the estate. The court may also require an additional bond when first bond was insufficient, as it is the duty of the court, or when court may allow additional security when it seems proper for the protection of the wards estate (discretionary on the court). As stated by Section 1 of this rule, there are some conditions set before the issuance of the letters of guardianship:Section 1. Bond to be given before issuance of letters. Amount. Conditions. Before a guardian appointed enters upon the execution of his trust, or letters of guardianship issue, he shall give a bond, in such sum as the court directs, conditioned as follows: (a) To make and return to the court, within three (3) months, a true and complete inventory of all the estate, real and personal, of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person for him; (b) To faithfully execute the duties of his trust, to manage and dispose of the estate according to these rules for the best interests of the ward, and to provide for the proper care, custody, and education of the ward; (c) To render a true and just account of all the estate of the ward in his hands, and of all proceeds or interest derived therefrom, and of the management and disposition of the same, at the time designated by these rules and such other times as the court directs, and at the expiration of his trust to settle his accounts with the court and deliver and pay over all the estate, effects, and moneys remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto; (d) To perform all orders of the court by him to be performed.The Supreme Court held in the case of Guerrero vs. Teran (G.R. Nos. L-2963-4 December 27, 1951) that the bond of the guardian is a continuing one against the obligors and their estates until all of its conditions are fulfilled. The mere fact that defendant was removed as guardian did not relieve her or her bondsmen from liability during the time she was duly acting as such guardian. I agree that bond should also be posted by a person who filed a petition for the issuance of letters of guardianship. As the guardian of a minor or ward, he has the power and access to all the properties of the latter. They are duty bound to report to the court and to perform their duties faithfully. The courts have the real control over such properties, it is in their discretion whether to sell a property or not. Posting a bond gives the court the security that such appointed guardian will act in good faith.

Rule 95 Selling and Encumbering Property of WardBy: Maria Emma Gille MercadoSection 2 of Rule 95 provides: Sec. 2. Order to show cause thereupon. - If it seems probable that such sale or encumbrance is necessary, or would be beneficial to the ward, the court shall make an order directing the next of kin of the ward, and all persons interested in the estate, to appear at a reasonable time and place therein specified to show cause why the prayer of the petition should not be granted.Next of Kin is defined by the Supreme Court as those persons who are relatives whose relationship is such that they are entitled to share in the estate as distributees. (33 C.J., 930-931.) It is also defined in Black's Law Dictionary, 3rd ed., as to mean not the next of kindred but those relatives who share in the estate according to the statute of distribution including those claiming per stripes or by representation. (Lopez vs. Teodoro, G.R. No. L-3071 May 29, 1950) As such, notice to next of kin and interested persons is jurisdictional, hence, failure to notify the next of kin shall be a gound for dismissal of the petition under this Rule. (Sinco vs. Longa, G.R. No. L-27962 February 14, 1928)In the above-mentioned case of Lopez vs Teodoro (supra.), Salvacion Lopez, the sister of incapacitated ward, Eulalio Lopez, Sr., contested the sale of the only property of the ward, alleging that there was no notice nor hearing first conducted by the court before authorizing the said sale. The Court held that she, not being an heir or a creditor prejudiced by the said sale, is not entitled to notice nor to contest the said sale.I do not agree with the ruling of the Supreme Court in this case. The facts revealed that Eulalio Lopez, Sr. is under the judicial guardianship of Eulalio Lopez, Jr. but is under the actual care and custody of his sister. It is held that she had no legal interest in her complaint, as she is only the ward's sister and not a forced heir so not prejudiced by the sale she seeks to impugn. I think that the court still should have notified Lopez in the sale of the wards property given the above reasons because the ward is under her care. She is the one looking after his brother, thus it is proper that she receives a notice because she knows or has an idea on what best suits the ward and thus help the court decides on whether such sale should be allowed or not.

Rule 96 General Powers and Duties of GuardiansBy: Maria Emma Gille MercadoA guardian ad litem is any competent person appointed by the court for purposes of a particular action or proceeding involving a minor. Although no express authority is required to act in a representative capacity as a negotiorum getor, one who has been appointed guardian ad litem by the court for minor heirs is not acting in that capacity and must have some express authority from the persons he purports to represent. Lim Siok Huey v. Alfredo Lapiz (G.R. No. L-12289 May 28, 1958) best illustrate this situation. In this case, Chua Pua Lun died in a vehicular collision as a passenger. His heirs, through their counsel and the guardian ad litem appointed, filed a claim for damages against the drivers of the colliding vehicles and its owners. Court held that the claim should be dismissed, it not being shown that the plaintiffs who are foreigners, allowed the suit to be brought. The representation by an appointed guardian ad litem of the minors or wards in the prosecution of a case involving them without proper authority is ineffective. Such representation would not suffice to meet the requirement of the rule, which provides that every action must be prosecuted in the name of the real party in interest.I agree with the decision of the Court. Rule 96 states the general powers and duties of guardians, namely:(1) Manage the estate of the ward frugally, and apply the proceeds to maintenance of the ward;(2) Settle accounts collect debts and appear in actions for ward; (3) Render a verified inventory within 3 months after his appointment and annually thereafter, and upon application of interested persons;(4) To have the care and custody of the person of the ward, and the management of his estate, or the management of the estate only, as the case may be(5) Render to court for its approval an accounting of the property for 1 year from his appointment and every year thereafter, and upon application of interested persons; and(6) Pay the debts of the wards.The case provides that there is a need of express authority on the part of the guardian ad litem to represent the minors by virtue of an express provision of our Rules of Court. The rules enumerated what constitute the general powers of a guardian. In not requiring for an express authority, it will give the guardian a wider range of powers. As appointment of guardianship rest in the discretion of the court, it is best to do it in express authority as to give proper evidence or notice to the court in vesting a person with powers to represent them especially in the above-mentioned case where the heirs are all residents of China and currently absent in the Phillippines.

Rule 97 Termination of GuardianshipBy: Maria Emma Gille MercadoUnder Section 1 of Rule 97, Sec. 1. Petition that competency of ward be adjudged, and proceedings thereupon. - A person who has been declared incompetent for any reason, or his guardian, relative, or friend, may petition the court to have his present competency judicially determined. The petition shall be verified by oath, and shall state that such person is then competent. Upon receiving the petition, the court shall fix a time for hearing the questions raised thereby, and cause reasonable notice thereof to be given to the guardian of the person, so declared incompetent, and to the ward. On the trial, the guardian or relatives of the ward, and, in the discretion of the court, any other person, may contest the right to the relief demanded, and witnesses may be called and examined by the parties or by the court on its own motion. If it be found that the person is no longer incompetent, his competency shall be adjudged and the guardianship shall cease.This Rule also provides for the grounds for termination and removal of guardians. The grounds for termination are when (1) competency of the ward has been judicially determined; (2) guardianship is no longer necessary; (3) death of guardian; and (4) death of ward. On the other hand, the grounds for removal of a guardian are (a) insanity; (b) incapability or unsuitability to discharge functions; (c) wastage or mismanagement of the property of the ward; and (d) failure to render an account or make a return within 30 days after it was due. Since the Rules enumerate the grounds for the termination and removal of a guardian, he cannot be legally removed from office except for the causes above-mentioned. The case of Celis vs. Cafuir (86 Phil. 554) caught my interest in with regard this Rule. In the said case, Ileana A. Celis, mother of a Joel (John) Cafuir, now wants to recover him from Soledad Cafuir who took care of him, but the latter alleged that the mother already renounced her custody over her Joel, with the execution of 2 documents. The Supreme Court held that the Ileana merely entrusted her son to Soledad because of her situation during that time and that the designation of the latter as a guardian does not mean that the guardian will always assume and discharge the duties of the office or position, as guardianship is temporary. I do not agree with the decision of the Court that Ileana can get Joel back and that she did not renounce to Soledad the custody of her son. I think Soledad should still have and retain the custody of Joel and that she is not acting as a mere guardian only. When Ileana decided to give her son, she intended that Soledad would have permanent possession and custody of her son. Her act of giving Joel and not being always present for him means that she intends that Soledad will take her place as his new motherfoster mother. Hence, Ileana should not just get his back just because she now can.

Rule 98 TrusteesBy: Maria Emma Gille MercadoA trust is the confidence reposed in one person who is termed trustee, for the benefit of another who is called cestui que trust, respecting property which is held by the trustee for the benefit of the cestui que trust. A trustee is a person to whom property or funds have been committed in the belief or trust that he will hold and apply the same for the benefit of those who are entitled thereto according to an express intention by the parties themselves or by deed, will settlement or arrangement of another. (Moreno, Federico, Philippine Law Dictionary, 3rd ed.)A trustee, just like an executor or administrator, holds an office of trust, particularly when the trustee acts as such under judicial authority. The duties of trustees may cover a much wider range than those of executors or administrators of the estate of deceased persons. The duties of executors or administrators are fixed and/or limited by law, whereas those of trustee of an express trust are usually governed by the intention of the trustor or of the parties, if established by contract. (Araneta vs. Perez, G.R. Nos. L-16185-86 May 31, 1962) There some similarities between the two but their distinctions separate a trustee from an executor or administrator. I do not agree with the appointment of a trustee in the settlement of the estate of a deceased person. I think it would be best to widen the powers of an executor or administrator of the estate. Their powers should include the powers vested on a trustee. In the settlement of estate, I think that there would be an overlapping of duties if there is a trustee and an executor or administrator at the same time. The rules allow that there can be more than one executor or administrator. As such, the appointment of a trustee should be irrelevant. The Court should now give the appointed executor or administrator powers of the trustee in settling the estate of the deceased person. It will lessen the persons dealing with the properties of the deceased and it will expedite the proceedings in court.

Rule 99 Adoption and Custody of MinorsBy: Maria Emma Gille MercadoAdoption has been defined as a juridical act which creates between two persons a relationship similar to that which results from legitimate property. (Prasnick vs. Republic, 98 Phil. 669) Effective August 22, 2002, there is a new Rule on Adoption. It provides for the new rules on Domestic and Inter-Country Adoption and only an adoption made pursuance with the procedures laid down under this A.M. No. 02-6-02-SC is valid in this jurisdiction.The unique part of the Rule is that of the Inter-Country Adoption. The most famous couple that adopts children from other countries is Brad Pitt and Angelina Jolie. They adopted three children from Cambodia, Vietnam and Ethiopia. In the Philippines we have stricter rules when it comes to adopting a Filipino child. For the foreigners, it is required that they should have been living in the Philippines for at least 3 continuous years prior to the filling of the petition and he maintain such residence until the adoption decree is entered. In adopting the Rule on Inter-Country Adoption, the purpose of adoption is very well taken. The purpose of adoption is the promotion of the welfare of the child and the enhancement of his opportunities for a useful and happy life, and every intendment is sustained to promote that objective. (Daoang vs. CA, G.R. No. L-34568 March 28, 1988)I do not agree with the residency qualifications in Inter-Country Adoption. Just like the Jolie-Pitt couple who adopted 3 children from various countries, especially those in those third world country, just like the Philippines. Because of this on qualification residency, couples, like the Jolie-Pitt couple, cannot adopt a child/children here in the Philippines. The nature of their works precludes them from adopting here as they cannot stay for 3 continuous years here in the Philippines. It is a little disappointing to know that an unfortunate child would be deprived of such privilege of getting a good life because of the qualification. Thus, it is in my opinion that on this part the Court should consider this and remove the residency qualification and permit aliens, who we have a relationship of reciprocity with, in adopting a child. The Court have in its rules sufficient methods in order to determine whether the adopting parents have the capacity and the money to have an additional member of their family.

Rule 100 Rescission and Revocation of AdoptionBy: Maria Emma Gille MercadoThe grounds for rescission are the following:(1) Repeated physical violence and verbal maltreatment by the adopter despite having undergone counseling; (2) Attempt on the life of the adoptee;(3) Sexual assault or violence; or(4) Abandonment of failure to comply with parental obligationsUnder the Domestic Adoption Act of 1998, the adopter can no longer rescind the adoption. He can only disinherit the adoptee in accordance with the provisions of the Civil Code. Now, only the adoptee may rescind. On the other hand, the grounds for revocation of an adoption refer only to an adoption validly decreed, not to an adoption void from the beginning because tainted with fraud. (Ragudo vs. Pasno, G.R. No. L-16642. April 18, 1962)I agree with the new rule that the adopter can no longer rescind the adoption. Adoption being in the best interest of the child should not subject to rescission by the adopter. The adoptee will not rescind the adoption if they enjoy and still receive benefit from the said adoption. If the rules still maintain that the adopter have the power to decide when to rescind the adoption of an adoptee, it will more likely result to a lot of cases where in the rescission by the latter is prejudice by such an act.There are adopters who take advantage of their adoptees that upon taking over the properties of the adoptee, for example, and as soon as they achieve what they want, they will rescind the adoption. It will result to the abandonment of the adoptee, especially for the poor and that is what the new Rules is trying to protect.[Type text]