1997 Rules on Civil Procedure

2001 Edition <draft copy. pls. check for errors>Rule 33

Demurrer to Evidence

Rule 33
DEMURRER TO EVIDENCE

Q: Define demurrer to evidence.

A: Demurrer to evidence is a motion to dismiss filed by the defendant after the plaintiff had rested
his case, on the ground of insufficiency of evidence. (Ballentine’s Law Dict., 2nd Ed., p. 358)

SEC. 1. Demurrer to evidence. - After the plaintiff has completed the

presentation of his evidence, the defendant may move for dismissal on the
ground that upon the facts and the law the plaintiff has shown no right to
relief. If his motion is denied, he shall have the right to present evidence.
If the motion is granted but on appeal the order of dismissal is reversed he
shall be deemed to have waived the right to present evidence. (1a, R35)

Now, there is a similar rule in criminal procedure under Rule 119, Section 23 – demurrer to evidence
in criminal cases. Rule 33 is demurrer to evidence in civil cases.

DEMURRER TO EVIDENCE IN CRIMINAL CASES (Review)

Q: By way of review what is the rule on demurrer to evidence in criminal cases all about? What is
the procedure on demurrer in criminal cases?
A: In the rules on criminal procedure: Trial. The prosecution presents evidence to prove the crime
and that the accused committed the crime. After that, tapos na – the prosecution has rested. It is now
the turn of the accused to present evidence to prove his defense. Alright, that’s the procedure.

But under the rules on demurrer to evidence in criminal cases, the accused, instead of presenting
evidence, may opt to file instead a demurrer. It is a motion by the accused to dismiss the criminal case
on the ground that the prosecution failed to prove his guilt. Remember that under the Constitution, the
accused is presumed innocent until his guilt is proven. It is the burden of the prosecution to prove his
guilt, to destroy the presumption of innocence.

Now, suppose the prosecution fails to prove the crime or the guilt of the accused. There is no
evidence. The evidence is insufficient to prove that the accused is guilty. So, the prosecution failed to
meet its burden. It failed to rebut the presumption of innocence. The accused may ask, “why will I
present evidence? Why will I prove my innocence when I’m still presumed innocent? Because my guilt has not
been established.” Therefore, the accused will file a demurrer. Actually, it is a motion to dismiss
challenging the sufficiency of the evidence for the prosecution.

SEC. 23. Demurrer to evidence. – After the prosecution rests its case, the
court may dismiss the action on the ground of insufficiency of evidence (1) on
its own initiative after giving the prosecution the opportunity to be heard or
(2) upon demurrer to evidence filed by the accused with or without leave of
court.
If the court denies the demurrer to evidence filed with leave of court, the
accused may adduce evidence in his defense. When the demurrer to evidence is
filed without leave of court, the accused waives the right to present evidence
and submits the case for judgment on the basis of the evidence for the
prosecution. (15a)
The motion for leave of court to file demurrer to evidence shall
specifically state its grounds and shall be filed within a non-extendible
period of five (5) days after the prosecution rests its case. The prosecution
may oppose the motion within a non-extendible period of five (5) days from its
receipt.
If leave of court is granted, the accused shall file the demurrer to
evidence within a non-extendible period of ten (10) days from notice. The
prosecution may oppose the demurrer to evidence within a similar period from
its receipt.
The order denying the motion for leave of court to file demurrer to evidence
or the demurrer itself shall not be reviewable by appeal or by certiorari
before judgment. (n)

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1997 Rules on Civil Procedure
2001 Edition <draft copy. pls. check for errors>Rule 33
Demurrer to Evidence

It is now emphasized in Section 23, Rule 119 that a demurrer may be filed with or without leave of
court. If you file demurrer with or without leave and it is granted, then you have no problem because
the accused will be acquitted.

The problem is, if your demurrer is denied. Meaning, the court says that there is sufficient evidence
to prove at least the guilt of the accused. If the demurrer was filed with prior leave of court and it is
subsequently denied, the accused is allowed to present evidence to prove his defense.

But if he filed the demurrer without prior leave of court and the demurrer is denied, then you are
already convicted because the accused has forfeited his right to present evidence. It is practically
equivalent to a waiver of his right to present evidence. So conviction automatically follows.

NOTE: Under the new rules on Criminal Procedure, when the accused will file a leave of court to
file a demurrer, he must specifically state the grounds. (c.f. Rule 119, Section 23, third paragraph)

Alright, that is in criminal cases. There is a similar rule in civil cases, Rule 33.

DEMURRER TO EVIDENCE IN CIVIL CASES

Q: Under the Rule on Trial, who presents evidence first?

A: It is the plaintiff. The plaintiff presents evidence to prove his cause of action. He must prove his
case or his claim by preponderance of evidence.

Q: Suppose after the plaintiff has rested, the plaintiff has not proven his cause of action?
A: I’m the defendant, why will I prove my defense when you have not proven your claim? So,
instead of presenting evidence, the defendant may move to dismiss the complaint on the ground of
insufficiency of evidence and that is known as the demurrer.

To borrow the language of the law, after the plaintiff has completed the presentation of his claim,
the defendant may move for dismissal on the ground that upon the facts and the law, the plaintiff has
shown no right to relief. Meaning, you have not proven your cause of action by preponderance of
evidence.

Q: Now, suppose the defendant filed that motion to dismiss (demurrer) but the court disagrees with
the defendant. In the opinion of the court, plaintiff had presented sufficient evidence to prove his cause
of action. Meaning, the motion is denied. What will happen now?
A: Defendant will now present evidence to prove his defense. That is why under Section 1, “If his
motion is denied, he shall have the right to present evidence.”

So, no harm done ‘no? Because if I will file my motion to dismiss and it is denied, I will be given
my right to present my side. So, there is no prejudice on the part of the defendant by filing a motion to
dismiss and his motion to dismiss is denied. What is risky is when your motion is granted.

“If the motion is granted but on appeal the order of dismissal is reversed he shall be
deemed to have waived the right to present evidence.”

Q: Suppose the court agrees with the defendant and his motion is granted. In other words, the
defendant has succeeded in dismissing the complaint without even presenting his own side – I won a
boxing bout without even throwing a single punch. What will happen now?
A: The court will dismiss the case. BUT if plaintiff appeals to the CA and insists that his evidence is
sufficient to prove his cause of action, therefore the order of the dismissal by the RTC is wrong, and CA
agrees with the plaintiff – that the plaintiff’s evidence is sufficient to prove his claim – the CA will
reverse the order of dismissal. The CA will immediately now decide the case in favor of the plaintiff
and the plaintiff will automatically win.

Q: The defendant may argue: “Well, the order was reversed. Eh di ibalik ang kaso. Let’s go back to the
RTC and let me present my side.” Is the defendant correct?
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1997 Rules on Civil Procedure
2001 Edition <draft copy. pls. check for errors>Rule 33
Demurrer to Evidence

A: NO. Under Section 1, if your demurrer is granted by the trial court and is reversed on appeal, the
defendant loses forever his right to present his evidence. Therefore defendant has no more right to
present his side. That is tantamount to saying the defendant automatically loses the case.

So, that is what a demurrer in civil cases is all about. Very risky no? If you file a demurrer and
your motion is denied, Okay lang – no prejudice – I will present my evidence. You do not waive your
right to present evidence. BUT if the court agrees with you and grants your motion, that is the start of
your headache. In other words, if the plaintiff appeals, you better pray that the appellate court will
sustain or affirm the order of dismissal. Otherwise if it is reversed, talo ka na automatically and you
cannot say, “Alright, ibalik natin ang kaso. Let’s return the case to the RTC because I will now present my
side.” No, you have already waived it.

Favorite BAR QUESTION: How do you distinguish the rule on demurrer of evidence in civil cases
with the rule of demurrer in criminal cases?
A: The following are the distinctions:

1. In CIVIL cases when the demurrer is denied, the defendant will now present his
evidence to prove his defense because the defendant does not waive his right to present
in the event the demurrer is denied; whereas
In CRIMINAL cases, if the demurrer of the accused is denied the accused is no longer
allowed to present evidence if he had no prior leave of court;

2. In CIVIL cases, if the defendant’s demurrer is granted and the case is dismissed and the
plaintiff appeals to the appellate court and on appeal the court reverses the order of
dismissal, the appellate court renders judgment immediately in favor of the plaintiff.
Goodbye! – talo na ang defendant. There is no more remanding. The defendant loses his
right to present evidence; whereas
In CRIMINAL cases, if the demurrer is granted, there is no more appeal by the prosecution
because the accused has already been acquitted. Otherwise, there will be a case of
double jeopardy;

3. In CIVIL cases, the court cannot on its own initiative, dismiss the case after the plaintiff
rests without any demurrer by the defendant. There is no such thing as motu propio
demurrer; whereas
In CRIMINAL cases, the court may dismiss the action on its own initiative after giving the
prosecution the chance to present its evidence.

In both cases, the motion is raised only after the prosecution or the plaintiff has presented his case
and the ground is based on insufficiency of evidence.

Take note that under Rule 9 of the Old Rules of Court, defenses and objections not pleaded either in
a motion to dismiss or in the answer are deemed waived. Among the exceptions (lack of jurisdiction,
res adjudicata, etc.) is “when there is no cause of action.” Meaning, the ground of no cause of action cannot
be waived. The same can be raised at any stage during the trial or even on appeal.

Now, such ground is not anymore found under the New Rules. What does it mean? Do you mean
to tell me that such ground is waivable now? NO. The ground of no cause of action is now incorporated
under Rule 33, such that during the trial when there is really no cause of action, your remedy is to file a
demurrer to evidence under Rule 33. So there is no need to refer to Rule 9 anymore.

Q: One thing, what is the difference between the “no cause of action” under Rule 16 and the “no
cause of action” under Rule 33?
A: Under Rule 16, the ground of no cause of action is based on the complaint, while under Rule 33,
the ground of no cause of action is based on the plaintiff’s evidence.

NOTE: If the complaint states cause of action, the defendant cannot file a motion to dismiss under Section 1[g],
Rule 16 because he hypothetically admits the allegations in the complaint. So they have to go to trial. Now, if during
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1997 Rules on Civil Procedure
2001 Edition <draft copy. pls. check for errors>Rule 33
Demurrer to Evidence

the trial, the plaintiff failed to prove his cause of action (meaning, there is really no cause of action), it is now proper
for the defendant to file a motion to dismiss on the ground of insufficiency of evidence under Rule 33, and not under
Rule 16 because in the first place, the plaintiff’s complaint states cause of action.

ENOJAS vs. COMELEC

283 SCRA 229 [1997]

HELD: “The motion to dismiss on the ground of jurisdiction can be easily be

differentiated from a motion to dismiss on demurrer to evidence in that, in the latter case,
the movant admits the truth or factual allegations in the complaint and moves for the
dismissal of the case on the ground of insufficiency of evidence. The legal effect and
consequence of a demurrer to evidence is that in the event that the motion to dismiss on
demurrer to evidence is granted and the order of dismissal is reversed on appeal, the
movant loses his right to present evidence in his behalf.”
“However, in a motion to dismiss on the ground of lack of jurisdiction, the movant does
not lose his right to present evidence.”
“It likewise bears stressing that a demurrer to evidence under Rule 33 is in the nature of
a motion to dismiss on the ground of insufficiency of evidence and is presented after the
plaintiff rests its case. It thus differs from a motion to dismiss under Rule 16 which is
grounded on preliminary objections and is presented at the outset of the case, that is before
a responsive pleading is filed by the movant and within the period for the filing thereof.”

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