INTRODUCTION A: This is because the Constitution provides that “the judicial

power shall be vested in one Supreme Court (SC) and in such

1. Major divisions in law:
a) Substantive law – a part of law which creates,
defines or regulates rights concerning life, liberty
or property, or the powers of agencies or
instrumentalities for the administration of public
affairs. (Primicias vs. Ocampo 49 OG 2230)
other lower courts as may be established by law.” (Art. VIII,
Section 1, 1987 Constitution.
The reason that the law creates different courts is to divide the
cases or judicial power among them so that one court may not
be burdened with so many cases.
So, judicial power is not exercised only by one court, but by
several courts.

b) Procedural/Adjective/Remedial Law – prescribes There is a division of labor and this division is done thru
the method of enforcing rights or obtaining delineating jurisdiction among courts. Jurisdiction will be
redress for their violation. (Bustos v. Lucero 81 discussed in the following parts.
Phil.
640,650)
2.) Judge

2. Sources of Remedial law:

Just as corporations cannot act without its officers, a court
cannot function without a judge. But do not say that the court
a) The Constitution and the judge mean the same thing. The judge is the person or
b) Laws creating the judiciary officer who presides over a court.
c) Laws defining and allocating jurisdiction to
different courts Q: Distinguish court from judge.
d) Rules promulgated by the SC
e) circulars, administrative orders, internal rules
A: The following are the distinctions:
and
SC decisions
1.) Court is the entity, body, or tribunal vested
with a portion of the judicial power, while
3. Scope of Remedial Law:
judge is the person or officer who presides
over a court.
a) Constitution
b) Civil Procedure (Rules 1 to 56 and other related
2.) Judges are human beings – they die, they
laws);
resign,
c) Provisional Remedies (Rules 57 to 61);
they retire, they maybe removed. The court
d) Special Civil Actions (Rules 62 to 71) continues to exist even after the judge presiding
e) Special Proceedings (Rules 72 to 109) over it ceases to do so. In the Supreme Court, for
f) Criminal Procedure (Rules 110 to 127) example, the justices presiding over it are not the
g) Evidence (Rules 128 to 133) same justices who presided it in the early part of
h) Katarungang Pambarangay Law (RA 7160) and this century yet the Court in some decisions
Implementing rules states that “as early 1905, ‘WE’ have already ruled
i) Revised Rules on Summary Procedure. such as such…” Why do they use ‘WE’? They are
j) Rules on Small Claims Case talking about the court, they are not talking about
k) Rules on Environmental Cases themselves. The court is continuous. It does not
die alongside with the justices who presided on it.
JUDICIAL POWER includes the duty of the courts of justice
to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine 3.) The two concepts may exist independently of each
whether or not there has been a grave abuse of discretion other, for there may be a court without a judge or
amounting to lack or excess of jurisdiction on the part of a judge without a court. (Pamintuan vs. Llorente,
any branch or instrumentality of the Government. (Sec. 1, 29 Phil. 342)
Art. VIII, 1987 Constitution)
3.) Hearing and Trial
The power of judicial review is the Supreme Court's power
to declare a law, treaty, international or executive
agreement, presidential decree, proclamation, order, Hearing is not synonymous with trial. The words “hearing” and
instruction, ordinance or regulation unconstitutional. “trial” have different meanings and connotations. Trial may refer
to the reception of evidence and other processes. It embraces
Basic concepts in Remedial Law the period for the introduction of evidence by both parties.
Hearing, as known in law, is not confined to trial but embraces
1.) Court the several stages of litigation, including the pre-trial stage. A
hearing does not necessarily mean presentation of evidence. It
does not necessarily imply the presentation of oral or
Describe it.
documentary evidence in open court but that the parties are
There is a table, a gavel, there is someone sitting there. Then
afforded the opportunity to be heard. (Republic v.
below, there are lawyers sitting down. But actually, what is
Sandiganbayan, 416 SCRA 133)
described is a courtroom and not a court.

HIERARCHY OF THE COURTS

Similarly, when you are asked to describe a corporation, you
will refer to the building, the office, the employees etc. But a
corporation, as you know in Persons, is a juridical entity. It is a In the 1996 BAR: One of the questions in Remedial Law was:
creature of the law. It is a person under the law but it has no State the hierarchy of the Courts in the Philippines.
physical existence.
a.) Regular courts
A court has no physical existence, only a legal one.
SUPREME COURT
Q: What is a court?

A: A court is an entity or body vested with a portion of the

judicial power. (Lontok vs. Battung, 63 Phil. 1054)

Q: Why ‘portion’ only?

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 COURT OF APPEALS may be determined by law.. It was law that created the
Sandiganbayan (PD 1486).

The CA, RTC, and the MTC are created by the Congress.
REGIONAL TRIAL COURTS So there is only one Constitutional court. All the rest, from the
CA down and all other special courts, are only creatures of
Congress.

MetTC MTCC MTC MCTC In political law, the power to create carries with it the power to
abolish. That is why, BP 129 abolished all existing courts at
that time (CFI, CA, Juvenile and Domestic courts, etc.) and
Note:
RTC, IAC, MTC were created. That was the judicial
reorganization of 1980 under BP 129. But there is only one
MetTC- In Manila court which the Batasan Pambansa could not touch – the
Supreme Court.
MTCC- cities outside Manila e.g. Cebu, Davao
SUPERIOR COURTS vs. FIRST-LEVEL
MTC- municipalities such as Minglanilla, Argao COURTS Q: Distinguish superior courts from inferior
courts.
MCTC- circuitized areas because it is impractical and expensive
to maintain one MTC in every municipality.
A: SUPERIOR COURTS, otherwise known as courts of general
b.) Special courts jurisdiction, are those which take cognizance of all kinds cases,
whether civil or criminal, and possess supervisory authority
over lower courts. The refer to these courts which have the
There are also Special Courts which are also considered part of
power of review or supervision over another lower court.
the judiciary. These are:
1. Court of Tax Appeals (RA 1125)
2. Sandiganbayan (PD 1486 as amended) INFERIOR COURTS, otherwise known as courts of special or
3. Sharia District Courts and the Sharia Circuit limited jurisdiction, are those which take cognizance of certain
Courts (PD 1083 , also known as the Code of specified cases only. (14 Am. Jur. 249) They are those which, in
relation to another are lower in rank and subject to review and
Muslim Personal Law);
supervision of the latter.
4. Family Courts

Q: What courts are superior or inferior?

Policy of Judicial Hierarchy

A: It DEPENDS from what viewpoint you are looking at it. If you
are looking from the viewpoint of the Constitution, there is only
This policy means that a higher court will not entertain direct one superior court – the Supreme Court.
resort to it unless the redress desired cannot be obtained in the
appropriate courts.
From the viewpoint of other laws, the Court of Appeals (CA)
maybe inferior to the SC but it is a superior court for it
While it is true for example that the Supreme Court, Court of exercises supervision over RTC. In the same manner that the
Appeals and the Regional Trial Courts have concurrent original RTC might be inferior to the SC and the CA but it has also
jurisdiction to issue writs of Certiorari, Prohibition, Mandfamus, power of supervision over MTC. The jurisdiction of the RTC is
such concurrence does not accord litigants unrestrained varied. It is practically a jack of all trade. The RTC has also the
freedom of choice of the court to which the application for the power of supervision over MTC.
writ may be directed. The application should be filed with the
court of lower level unless the importance of the issue involved
A superior court may therefore handle civil, criminal cases while
deserves the action of the court of the higher level.
an inferior court may try specified cases only. The SC, CA
including the RTC are considered as superior courts.
4.) Classification of courts in general.
The MTC is a first-level (inferior) court so that its power is
A: Generally, courts may be classified as: limited to specified cases despite of the law which expanded the
1. Constitutional and Statutory Courts; jurisdiction of the MTC. It does not have any supervisory
2. Superior Courts and First-Level courts (inferior authority over any lower court.
courts);
3. Courts of Original jurisdiction and Courts of Appellate
ORIGINAL COURT vs. APPELLATE COURT
jurisdiction;
4. Civil Courts and Criminal Courts; Q: Distinguish original court from appellate court.
5. Courts of law and Courts of equity;
6. Courts of record; probate Courts; Land Registration A: ORIGINAL COURTS are those where a case is originally
Courts; Ecclesiastical Courts; Military Courts commenced, while APPELLATE COURTS are those where a case
is reviewed. (Ballentine's Law Dict., 2nd Ed., p. 91)
CONSTITUTIONAL COURTS vs. STATUTORY COURTS
So, if you are filing a case for the first time, that case is filed in
Q: Distinguish Constitutional Courts from Statutory Courts.
an original court. But the case does not necessarily end there.
You may bring the case to the appellate court which has the
A: CONSTITUTIONAL COURTS are created directly by the power to change the decision of the original court.
Constitution itself, while STATUTORY COURTS are created by
law or by the legislature. The first cannot be abolished by Q: Is the SC an original or appellate court?
Congress without amending the Constitution while the second
can be so abolished by just simply repealing the law which
created them. A: The SC is both an original and an appellate court. The SC
has original jurisdiction on cases of certiorari, prohibition,
mandamus, etc. There are certain cases where one may file
In our country, there is only one Constitutional court – the directly to the SC.
Supreme Court. Even the Sandiganbayan is not considered a
Constitutional court because it was not created by the
Constitution directly. The 1973 Constitution, particularly Art. Q: Is the CA an original or appellate court?
XIII, Section 5 ordered the then National Assembly to create a
special court to be known as the Sandiganbayan which shall
have jurisdiction over criminal and civil cases involving graft
and corrupt practices and such other offenses committed by
public officers and employees, including those in government-
owned or controlled corporations in relation to their office as

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A: The same is true with the CA. It is both original and appellate
court. (Section 9, BP 129) When we study the jurisdiction of the
CA, you will see that it is both an original and an appellate
court. There are cases which are elevated to it from the RTC,
but there are also cases which are filed there for the first time
like an action for annulment of an RTC judgment.
Q: How about the RTC? Is the RTC an original or appellate
court?
A: The RTC is also both original and appellate court. You can
file certain cases there for the first time, and there are also
decisions of the MTC which are appealable to the RTC.
Q: How about the MTC? Is the MTC an original or appellate
court?
A: The MTC however, is a 100% original court. It is the lowest
court in the hierarchy. There are no cases appealed to it. There
is no such animal as barangay court. The barangay captains do
not decide cases, they only conciliate.
CIVIL COURTS vs. CRIMINAL COURTS
Q: Distinguish civil courts from criminal courts.
A: CIVIL COURTS are those which take cognizance of civil cases
only, while CRIMINAL COURTS are those which take cognizance
of criminal cases only. (14 Am. Jur. 249; Ballentine's Law Dict.,
2nd Ed., p. 301)
All the courts in the Philippines are both civil and criminal
courts. They can handle both types of cases. The SC decides
civil and criminal cases. The same is true with the CA, RTC and
MTC.
So, in the Philippines, there is no such thing as a 100% criminal
court or civil court. During the 70's there was the old Circuit
Criminal Court. As the name implies, it is purely a criminal
court. But with other courts, this was abolished by BP 129.
With the abolition of those special courts, all their powers were
transferred to the present RTC. Right now, there is no such
thing as a 100% civil court or a 100% criminal court. So, all our
courts are both civil and criminal courts at the same time.
COURTS OF LAW vs. COURTS OF EQUITY
Q: Distinguish Courts of Law from Courts of Equity.
A: COURTS OF LAW are tribunals administering only the law of
the land, whereas COURTS OF EQUITY are tribunals which
rule according to the precepts of equity or justice, and are
sometimes called “courts of conscience.” (Ballentine’s Law Dict.,
2nd Ed., p. 303)
Courts Of Law dispose cases according to what the promulgated
law says while Courts Of Equity adjudicate cases based on the
principles of equity. Principle of equity means principles of
justice, fairness, fair play or of what is right and just without
inquiring into the terms of the statutes.
Q: Are the Philippine courts, courts of law? Or courts of
equity? Do they decide cases based on what the law says or
based on the principle of justice and fairness?
A: In the Philippines, our courts, original or appellate, are both
courts of law and of equity. (U.S. vs. Tamparong 31 Phil. 321)
In the case of substantive law, there is a thin line which divides
the principle of law from the principle of equity because
principles of equity are also found in the principles of law.
Equity is what is fair and what is just and equitable. Generally,
what is legal is fair.
As a matter of fact under the Civil Code, when the law is silent,
you decide it based on what is just and fair, thus, the saying
EQUITY FOLLOWS THE LAW. In the Philippines you cannot
distinguish sometimes the principle of law and the principle of
equity because principles of equity are also written in the law.
Example: The principles of estoppel, laches or solutio indebiti
are no longer purely principles of equity since they are also
found in our law. Under the Civil Code, when there is no
applicable law, courts still have to decide according to customs
and general principles.
3
ESTOPPEL
Estoppel is an equitable doctrine which means that it is not fair
that you disown your own representation after misleading
somebody. But if you look at the Civil Code, there is a chapter
on estoppel. So if you apply estoppel, you cannot say that you
are applying a principle not found under the law.
LACHES
It is considered to be the half-brother of prescription because it
means if you delay a certain right then you must have no right.
That is more of equity, rather than of law.
SOLUTIO INDEBITI
No one should enrich himself at the expense of another. That is
a principle of equity. But if you look at the Civil Code, it's there!
ALONZO vs. IAC - May 28, 1987
HELD: “The question is sometimes asked, in serious inquiry or
in curious conjecture, whether we are a court of law or a court
of justice. Do we apply the law even if it is unjust or do we
administer justice even against the law? Thus queried, we do
not equivocate. The answer is that we do neither because we are
a court both of law and of justice. We apply the law with justice
for that is our
mission and purpose in the scheme of our Republic.”
COURTS OF RECORD
Those whose proceedings are enrolled and which are bound to
keep a written record of all trials and proceedings handled by
them. RA 6031 mandates all MTCs to be courts of record.
PROBATE COURTS
Those which have jurisdiction over settlement of estate of
deceased persons.
LAND REGISTRATION COURTS
Those which have jurisdiction over registration of real properties
under the Torrens System.
INHERENT POWERS OF THE COURT
Before we leave the concepts of courts, we must know that the
courts of justice have what we call inherent powers. Just like
the State have certain inherent powers, namely; Police power,
power of taxation, and power of eminent domain.
Their very existence automatically necessitates the existence of
these powers.
Q: What are the inherent powers of the court?
A: Section 5 Rule 135 of the Rules of Court provides:
Section 5. Inherent powers of courts. Every
court shall have the power:
(a) to preserve and enforce order in its
immediate presence;
(b) to enforce order in proceedings before it,
or before a person or persons empowered
to conduct a judicial investigation under
its authority;
(c) to compel obedience to its judgments
orders, and processes, and to the lawful
orders of a judge out of court, in a case
therein;
(d) to control, in furtherance of justice, the
conduct of its ministerial officers, and of
all other persons in any manner connected
with a case before it, in
every manner
appertaining thereto;
 (e) to compel the attendance of persons to
testify in a case pending therein;
(f) to administer or cause to be administered
oaths in a case pending therein, and in all
other cases where it may be necessary in
the existence of its powers;
(g) to amend and control its process and
orders so as to make them conformable to
law and justice;
(h) to authorize a copy of a lost or destroyed
pleading or other paper to be filed and
used instead of the original, and to restore,
and supply deficiencies in its records and
proceedings.
SITUATION: Suppose I have the power to decide and I render a
decision. I want to enforce the decision, how do I enforce? Well,
usually the law provides for the procedure.
Q: But suppose the law does not provide for any manner to
enforce? For example a judge has rendered a decision, and
the law is silent on how to enforce it, do you mean to say
that the order is unenforceable because the law is silent.
A: NO. Section 6 of Rule 135 answers the question.
SEC 6. Means to carry jurisdiction into effect –
When by law jurisdiction is conferred on a
court or a judicial officer, all auxiliary
writs, processes and all other means to
carry it into effect maybe employed by
such court or officer; and if the procedure
to be followed in the exercise of such
jurisdiction is not specifically pointed out
by law or these rules, any suitable process
or mode of proceeding may be adopted
which appears conformable to the spirit of
said law or rules.
What Section 6 is trying to say is that when courts have the
power to decide, they have the power to enforce. And if the law
is silent, judges have to think of how to do it provided they
conform to the spirit of the rule. So they should not make the
order useless simply because there is no rule. That is part of
their power.
ENFORCEABILITY OF COURT WRITS AND PROCESSES
Another provision that should be emphasized is Section 3 of the
Interim Rules.
Question: The court of Cebu issues a writ or a process. Can
that writ or process be enforced in Manila? What is the extent of
the enforceability of a writ issued by a court?
Under Section 3, Interim Rules: Sec. 3.
Writs and Processes. -
a) Writs of certiorari, prohibition, mandamus,
quo warranto, habeas corpus and
injunction issued by a regional trial court
may be enforced in any part of the region.
b) All other processes whether issued by the
RTC or MetTC, MCTC, and MTC may be
served anywhere in the Philippines, and,
the last three cases, without a certification
by the judge of the RTC.
A: Under Section 3 of the Interim Rules, you have to distinguish
what kind of writ or process you are talking about:
a) If it is a writ of certiorari, prohibition, mandamus, quo
warranto, habeas corpus, injunction, it can be
enforced anywhere within the region. So at least, RTC
can enforce it within the region and it cannot enforce
those writs outside the region.
EXAMPLE: If you are illegally detained, you can ask the court to
issue a writ of habeas corpus. Now, a person is detained in
4
Cagayan de Oro and the family is here in Cebu City. They filed a
petition for habeas corpus here in Cebu City. Is it proper?
No. Cebu City belongs to the 7th Judicial Region while Cagayan
de Oro is in the 11 th or 12th Judicial Region. The law is very
clear: writs of certiorari, prohibition, mandamus, quo warranto,
habeas corpus and injunction issued by a trial court may be
enforced in any part of the region.
b) Section 3 further says, all other writs are enforceable
anywhere in the Philippines. Suppose the MTC issues
a warrant for the arrest of the accused in the criminal
case, and he fled to Baguio City, such warrant can be
enforced there. This includes summons, writs of
execution or search warrants.
ASPECTS OF REMEDIAL LAW
Q: Give the two (2) aspects of Remedial Law.
A: There are 2 aspects of Remedial Law:
1.) PUBLIC ASPECT – one which affords a remedy in
favor of the State against the individual
(e.g. criminal procedure) or in favor of
the individual against the State (e.g.
habeas corpus) on the other hand,
2.) PRIVATE ASPECT – one which affords a remedy in
favor of an individual against another
individual, like the rules on civil
procedure. (Gamboa’s Introduction to
Philippine Law, 6th Ed., pp. 97-99)
BRIEF HISTORY OF THE LAW ON CIVIL PROCEDURE IN
THE PHILIPPINES
The origin of our law on procedure is American. Forget the law
on procedure during the Spanish regime. But the first known
ancestor of the law on Civil Procedure was the old Act 190,
otherwise known as the Code of Civil Procedure, which was
enacted on August 7, 1901 by the United States and Philippine
Commission.
And that was the law until 1940 because on July 01,1940 the
SC enacted the Rules of Court which we now call the Old Rules
of Court. That continued for another 24 years until January 01,
1964 when the SC enacted the Revised Rules of Court repealing
the Old Rules of Court. And that continued for another 33 years
until July 01,1997 where the SC enacted and which took effect
on that day (July 01, 1997) the New Rules on Civil Procedure.
SUMMARY:
1.) First Law – August 07, 1901 – Act 190 – Code of
Civil Procedure (40 years)
2.) Second Law – July 01, 1940 – Old Rules of Court
(24 years)
3.) Third Law – January 01, 1964 – Revised Rules of
Court (33 years)
4.) Fourth Law – July 01, 1997 – New Rules of Civil
Procedure.
SOURCES OF THE 1997 RULES OF CIVIL PROCEDURE
Well of course the sources are almost the same as the prior law.
The old Rules of Court is also a source. Many provisions were
taken from the 1964 Rules, substantive law like the Civil Code
and jurisprudence. And of course SC circulars. Many circulars
are now incorporated under the new rule. So those are the main
sources.
SOURCES
1. Previous Rules of Court;
2. Jurisprudence;
3. New Civil Code;
4. SC Circulars
RULE-MAKING POWER OF THE SUPREME COURT
The Rules of Court (1940, 1964, 1997) have all been enacted by
the SC. It is law, not enacted by Congress but enacted by the
SC.
Q: What is the authority of the SC to enact a law when
actually the role of the judiciary is only to interpret the
law? Is this not a violation of the separation of powers?
A: The authority of the SC in enacting the prior rules and the
present rules is what you call its rule-making power which
provision was found in the 1935, 1973 and 1987 Constitutions.
Based on the present law, the rule-making power of the SC is
expressed in Article VIII, Section 5, paragraph [5] which is
substantially the same as the 1935 and 1973 Constitutions
which states that: the SC "shall promulgate the rules
concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in
all courts.”
LIMITATIONS TO THE RULE-MAKING POWER OF
THE SC
The Constitution has also placed limitations on these powers.
As currently worded, one limitation provided for by the Article is
“the rules of procedure to be enacted by the SC "shall provide
for a simplified and inexpensive procedure for the speedy
disposition of cases.” The second one is: “the rules shall be
uniform for all courts of the same grade.” And the third is:
“the rules shall not diminish, increase or modify
substantive rights.”
LIMITATIONS
1. The Rules of Court shall provide a simplified and
inexpensive procedure for the
speedy
disposition of cases;
2. The Rules of Court shall be uniform for all courts
of the same grade; and
3. The Rules of Court shall not diminish, modify or
increase substantive rights.
Substantive rights are created by substantive law so the Rules
of Procedure should not increase, diminish or modify them. In
effect, the Rules of Court should not amend the substantive law.
It can only interpret substantive law but should not change it
completely. Those are the limitations. With that we are now
ready to tackle the 1997 rules on civil procedure.
JURISDICTION IN GENERAL
The word JURISDICTION is derived from 2 Latin words: 1.)
JURIS – law; 2.) DICO – to speak, or to say. So, in effect, when
you say jurisdiction, literally translated, it means, “I speak by
the law.” It means that you are saying “I speak with authority”
because when you invoke the law, then your act is authorized.
So when you say, “I speak by the law” you mean I will do it in
the name of the law. It connotes authority or power.
So jurisdiction implies authority or power to act.
But what act or acts is/are authorized?
If we relate jurisdiction to courts, it means authority or the
power to hear, try and decide a case. So jurisdiction means the
power or authority of the court to hear, try and decide a case.
In its complete aspect, jurisdiction includes not only the
powers to hear and decide a case, but also the power to
enforce the judgment (14 Am. Jur. 363-364) as the
judgment or decree is the end for which jurisdiction is
exercised, and it is only through the judgment and its
execution that the power of the court is made efficacious
and its jurisdiction complete (21 CJS, Courts, S 9). The
power to control the execution of its decision is an
essential aspect of jurisdiction. It cannot be the subject of
substantial subtraction and the most important part of the
litigation is the process of execution of decisions
(Echegaray vs. Sec. of Justice, 301 SCRA 96).
Test of Jurisdiction
Since jurisdiction refers to power or authority to hear, try and
decide a case, it cannot depend on the correctness or
rightfulness of the decision made. (Century Insurance Co. v.
5
Fuentes, 2 SCRA 1168 [1961]) Correctness or rightfulness of the
decision relates to the exercise of and not to the authority itself.
The test of jurisdiction is whether the court has the power
to enter into the inquiry and not whether the decision is
right or wrong. (Herrera vs. Barreto, 25 Phil. 245)
Duty of the court to determine its jurisdiction
It is the duty of the court to consider the question of
jurisdiction before it looks at other matters involved in the
case. It may, and must, do this on its own motion without
waiting for the question of jurisdiction being raised by any
of the parties involved in the proceeding (20 Am Jur 2d,
Courts, S 92). Courts are bound to take notice of the limits
of their authority and they may act accordingly by
dismissing the action even thought the issue of jurisdiction
is not raised or not even suggested by counsel (Ace
Publicatiions vs. Commissioner of Customs, 11 SCRA 147)
Q: What is the effect if the court has no jurisdiction or of
absence or lack of jurisdiction?
A: If a court has no jurisdiction, it has no power or
authority to try a case and because it has no authority it
must not exercise it. Exercise of absent authority or power
is necessarily nothing. Thus, without jurisdiction, the
entire proceedings would be null and void.
The only recourse for the court, absent jurisdiction, is to
dismiss the case motu proprio or on motion for without
authority it cannot act.
Q: What about if it has jurisdiction?
A: It is the duty of the court to exercise the jurisdiction
conferred upon it by law and to render a decision in a case
properly submitted to it. Failure to do so may be enforced
by way of a mandamus proceeding (20 Am Jur. 2d, S 93).
Constitutional Guarantee of Access to Courts and
Jurisdiction
The Constitutional guarantee of access to courts refers to
courts with appropriate jurisdiction as defined by law. It
does not mean that a person can go to any court for redress of
grievances regardless of the nature or value of his claim.
(Santos III v. Northwest Airlines, 210 SCRA 256 [1992])
JURISDICTION vs. EXERCISE OF JURISDICTION
Q: Distinguish jurisdiction from exercise of jurisdiction.
A: Jurisdiction pertains to the authority to hear and decide
a case. Any act of the court pursuant to such authority,
including the decision and its consequences is exercise of
jurisdiction.
The authority to decide a case, not the decision rendered, is
what makes up jurisdiction. It does not depend upon the
regularity of the exercise of that power or upon the rightfulness
of the decision made. Where there is jurisdiction over the person
and subject matter, the resolution of all other questions arising
in the case is but an exercise of jurisdiction. (Herrera vs.
Barreto, 25 Phil. 245)
Q: Why is it important to distinguish jurisdiction from exercise
of jurisdiction?
A: Definitely, a court acting as such may commit errors or
mistakes and questioned later before a higher court. The
procedure or remedy in case of a mistake or error would be
dependent on whether it is an error of jurisdiction or an
error in the exercise of jurisdiction also known as error of
judgment.
EXAMPLE: A case of murder was filed in the MTC. The accused,
Ken Sur, files a motion to quash because MTC has no
jurisdiction over cases of murder. But the court denied the
motion to quash. Meaning, the judge has decided to assume
jurisdiction. What is the error committed?
When the court without authority assumes authority over the
case that is called ERROR OF JURISDICTION – the court
committed an error of jurisdiction.
EXAMPLE: Suppose the case for murder is filed in the RTC
where the court has jurisdiction. But in the course of the trial, it
committed mistakes like the court misinterpreted or misapplied
the provision of the RPC or the Indeterminate Sentence Law.
What error is committed?
Obviously the RTC has the authority to hear and decide the case
and therefore acted with authority or jurisdiction. There is no
error of jurisdiction.
However, in the exercise of such authority it committed a
mistake, thus, the error committed is error in the exercise of
jurisdiction, also known as error of judgment.
Q: Is the proceeding null and void?
A: NO. What is committed is an error in the exercise of
jurisdiction and if not corrected the error can become final and
executory. In other words, if not objected to, it will stay.
ERROR OF JURISDICTION vs. ERROR OF JUDGMENT
Distinguish ERROR OF JURISDICTION from ERROR OF
JUDGMENT.
A: The following are the distinctions:
1.) When a court acquires jurisdiction over the subject
matter, the decision or order on all other
questions arising in the case is but an
exercise
of jurisdiction; Errors which the court may
commit in the exercise of such jurisdiction,
like errors of procedure or mistakes in the
court's findings, are merely ERRORS OF
JUDGMENT;
whereas,
When a court takes cognizance of a case over the
subject matter of which it has no jurisdiction,
or acts in excess of jurisdiction or with grave
abuse of discretion amounting to lack of
jurisdiction, the court commits an ERROR OF
JURISDICTION.(GSIS vs. Oliza 304 SCRA
421).
2.) When the court acts without authority (error of
jurisdiction) such act would be null and void or at
least voidable, but if the court has authority but
commits a mistake in the exercise of such
authority (error of judgment) such mistake will
bind unless corrected
3.) ERRORS OF JURISDICTION are reviewable by
the
extraordinary writ of certiorari; whereas, ERRORS OF
JUDGMENT are reviewable by appeal.
An error of judgment should be raised on ordinary appeal, not
by certiorari because certiorari is only confined to correcting
errors of jurisdiction or grave abuse of discretion. The governing
rule is that the remedy of certiorari is not available when the
remedy of appeal is available or even if available, when it will
not be a speedy and adequate remedy. And when the remedy of
appeal is lost, you cannot revive it by resorting to certiorari
because certiorari is not a substitute for the lost remedy of
appeal.
Lack of jurisdiction and excess of jurisdiction
They are distinguished thus: the respondent court or tribunal
acts without jurisdiction if it does not have the legal power
to determine the case; where the respondent, being clothed
with the power to determine the case, oversteps its
authority as determined by law, it is performing a function
in excess of its jurisdiction (Vette Industrial Sales Company
Inc. vs. Cheng, 509 SCRA 532).
Example of excess of jurisdiction:
6
When the court does not conduct a pre-trial conference which is
mandatory under the rules.
Q: In whom is jurisdiction vested?
A: Jurisdiction is vested in the court, not in the judge. A
court may be a single sala or may have several branches
(multiple sala). If the latter, each is not a court distinct and
separate from the others. So, when a case is filed before a
branch, the trial may be had or proceedings may continue
before another branch or judge. (Tagumpay vs. Moscoso, L-
14723, May 29, 1959)
EXAMPLE: The RTC of Cebu City is composed of several
branches – 22 all in all. But technically, there is only one court
– the RTC of Cebu City.
Q: Now, if the case is filed and is assigned to Branch 8, can that
case later be transferred and continued in Branch 9?
A: YES, because you never left the same court. You are still in
the same court. This is because jurisdiction is not with the
judge. It is with the court itself.
But there is only one branch of RTC-Bogo, can RTC-Cebu City
take jurisdiction over its cases?
No because they are different courts and jurisdiction is attached
to the court.
TYPES OF JURISDICTION:
Types of jurisdiction:
1.) Based on cases tried: General Jurisdiction
and
Special or Limited Jurisdiction;
2.) Based on the nature of the cause: Original
Jurisdiction and Appellate Jurisdiction; and
3.) Based on the nature and extent of exercise:
Exclusive Jurisdiction and Concurrent or
Coordinate Jurisdiction;
4.) Based on situs; Territorial jurisdiction and
extra-
territorial jurisdiction.
1. GENERAL JURISDICTION and SPECIAL OR LIMITED
JURISDICTION
a.) GENERAL JURISDICTION is the authority of the court
to hear and determine all actions and suits, whether
civil, criminal, administrative, real,
personal or mixed. It is very broad – to hear and try
practically all types of cases. (14 Am. Jur. 249; Hahn
vs. Kelly, 34 Cal. 391)
b.) SPECIAL or LIMITED JURISDICTION is the
authority of the court to hear and determine
particular cases only. Its power is limited. (14 Am.
Jur. 249; Hahn vs. Kelly, 34 Cal. 391)
Example: In criminal cases, the MTC has jurisdiction over
offenses where the penalty imposable does not exceed 6 years
while beyond 6 years they are triable before the RTC.
If you examine the jurisdiction of the MTC, it has a limit but
none for the RTC.
The same applies in civil cases as we shall learn.
2. ORIGINAL JURISDICTION and APPELLATE JURISDICTION
a.) ORIGINAL JURISDICTION is the power of the court
to take cognizance of a case at its inception or
commencement. (Ballentine’s Law Dict., 2nd Ed.,
pp. 91 and 917)
b.) APPELLATE JURISDICTION is the power vested in
a superior court to review and revise the judicial
action of a lower court. (Ballentine’s Law Dict.,
2nd Ed., pp. 91 and 917) If one court has the
power to correct the decision of a lower court, the
power of this court is appellate. This is because it
 is commenced somewhere else and it is just
reviewing the decision of the said lower court.
Note that in certiorari petition, the action of the superior court is
not to correct but to annul. The power exercised by the superior
court is the power of control and supervision over an inferior
court, not appellate, that is, to limit the inferior court within its
jurisdiction, its authority.
3. EXCLUSIVE JURISDICTION and CONCURRENT
COORDINATE
JURISDICTION
a.) EXCLUSIVE JURISDICTION is that possessed by a
court to the exclusion of all others.
b.) CONCURRENT or COORDINATE JURISDICTION is
that possessed by the court together with another
or other courts over the same subject matter, the
court obtaining jurisdiction first retaining it to the
exclusion of the others, but the choice of court is
lodged in those persons duly authorized to file the
action. (Villanueva vs. Ortiz, 58 O.G. 1318, Feb.
12,
1962)
Q: Are there certain types of cases or petitions where I can file it
directly with the SC or file with the CA or file it with the RTC?
A: YES and the best example is a petition for HABEAS
CORPUS. The SC, CA and RTC share concurrent jurisdiction
to entertain petitions for habeas corpus.
In effect, these are the instances when the SC, CA and RTC
exercise concurrent jurisdiction. There can also be concurrent
jurisdiction among branches of a multiple sala court.
Exclusionary Principle
The court first acquiring jurisdiction excludes all others.
Another principle that may be relevant is the policy of judicial
hierarchy.
4. TERRITORIAL AND EXTRA-TERRITORIAL
Territorial jurisdiction - exercised within the limits of the place
where the court is located.
Extra-territorial jurisdiction - exercised beyond the confines of
the territory where the court is located.
Examples: Writs of certiorari, prohibition and mandamus are
enforceable only within the region where the issuing court is
located; while a writ of execution can be enforced even outside
said territory.
ELEMENTS OF JURISDICTION IN CIVIL CASES
The word jurisdiction as applied to the faculty of exercising
judicial power is used in different but related senses which are:
1. The authority of the court to entertain a particular
kind of action, or
2. Administer a particular kind of relief depending on the
issues raised;
3. It may refer to the power of the court over or to bind
the parties, or
4. Over or to bind the property which is the subject of the
litigation.
In your study of criminal procedure where you also studied the
law on jurisdiction, we studied the authority of the court over
the cases as determined by the imposable penalty; its authority
to bind the accused and the prosecution; its authority to grant
the relief which is either acquittal or conviction and over the
place where the offense charged is alleged to have been
committed.
So there are what we call elements of jurisdiction in criminal
cases, otherwise, the proceeding will be illegal. These elements
are:
1. Jurisdiction over the subject matter;
2. Jurisdiction over the person of the accused; and
3. Territorial jurisdiction, i.e. the case should be filed in
the place where the crime was committed.
Q: What are the elements of jurisdiction in civil cases?
A: The following:
a.) Jurisdiction over the subject matter ;
OR
b.) Jurisdiction over the person of the parties to
the case;
c.) Jurisdiction over the res; and
d.) Jurisdiction over the issues.
Q: Now, what happens if in a particular case one of these is
missing?
A: The proceedings become questionable. The proceedings
become void. The judgment is not binding. That is the
effect of lack of jurisdiction. The proceedings are tainted
with illegality and irregularity.
A. JURISDICTION OVER THE SUBJECT MATTER
Q: Define jurisdiction over the subject matter.
A: Jurisdiction over the subject matter is the power of the court
to hear and determine cases of the general class to which
the proceedings in question belong. (Banco Español-Filipino
vs. Palanca, 37 Phil. 291)
In other words, it is the jurisdiction over the nature of the
action. In criminal cases you have light, less grave and grave
offenses. In civil cases we have such actions as actions for sum
of money, actions not capable of pecuniary estimation, real and
personal actions, action in rem, action in personam etc. This is
what we call the NATURE or classification OF THE ACTION.
When a complaint is filed in court, the basic questions that ipso
facto are to be immediately resolved by the court on its own are:
a) What is the nature of the action filed?
b) Does the court have authority to try and determine
that class of actions to which the one before it
belongs?
Jurisdiction over the “subject matter” is not to be confused
with the term “subject matter of the action”.
Lack of jurisdiction over the subject matter is the proper ground
for a motion to dismiss. This is broad enough to include the
“nature of the action.” The term should not be confused with
the terms “subject or subject matter of the action” which
refer to the physical facts, the things real or personal, the
money, lands or chattels and the like, in relation to which
the suit is prosecuted and not the delict or wrong
committed by the defendant.
So if you talk about declaration of nullity of marriage the
subject matter of the action is the marriage of the parties
involved not any other contract but the nature of the action is
that it is not capable of pecuniary estimation; if it is for
foreclosure of mortgage, the thing or subject of the action is the
property mortgaged, in specific performance or rescission of
contract, it is the contract involved that is the subject matter of
the action.
Q: How is jurisdiction over the subject matter or nature of the
action acquired?
A: Jurisdiction over the subject matter is conferred by law,
which may be either the Constitution or a statute(Tyson’s
Super
Concrete, Inc. vs. Court of Appeals, 461 SCRA 435; de la Cruz
vs. CA, 510 SCRA 103; Guy vs. CA, December 10, 2007), and is
never acquired by consent or submission of the parties or
by their laches. This is a matter of legislative enactment which
none but the legislature can change. (MRR Co. vs Atty. Gen. 20
Phil. 523; Otibar vs. Vinson, L-18023, May 30, 1962) It cannot
be acquired by an agreement of the parties, waiver, or
failure to object (silence).
So Congress plays an important role in the exercise of
judicial power, namely:
7
 1. It creates the rights which are sought to be
protected or enforced;
2. It defines jurisdiction over the subject matter.
Both are of course in the form of substantive
laws.
The law that confers jurisdiction refers to substantive law, not a
procedural law. It likewise does not refer to an administrative
order or circular (Malaloan vs. CA, 232 SCRA 249).
Q: Suppose I will file a case against you in a wrong court.
Actually what you should do is file a motion to dismiss (or in
criminal cases a motion to quash.) but you did not. Since you
did not object, you did not file a motion to dismiss, you did not
file a motion to quash, did the ‘wrong’ court acquire jurisdiction
over the case?
A: NO. Jurisdiction over the subject matter cannot be
conferred by silence of the parties or by waiver. Estoppel or
waiver or silence or failure to object cannot vest jurisdiction in
the wrong court because jurisdiction over the subject matter is
conferred by law. And when the court has no jurisdiction, the
court by itself or motu propio has the power to dismiss.
Q: How is the subject matter or nature (class) of the action
determined?
A: It is a settled rule that jurisdiction over the subject
matter is determined by the allegations in the complaint
(Baltazar vs. Ombudsman, 510 SCRA 74) regardless of
whether or not the plaintiff is entitled to his claims
asserted therein (Gocotano vs.
Gocotano 469 SCRA 328; Cadimas vs. Carrion GR No.
180394, Sept. 29, 2008).
It does not depend upon the pleas or defenses of the
defendant in his answer or motion to dismiss. (Cardenas vs.
Camus, L-19191, July 30, 1962; Edward J. Nell Co. vs.
Cubacub, L-20842, June 23,
1965; Serrano vs. Muñoz Motors, L-25547, Nov. 27, 1967)
How do you determine then jurisdiction over the subject
matter?
It is determined by facts alleged in the complaint and the
law in force at the time of the commencement of the
action. (Mercado v. Ubay 187 SCRA 719) This is true in
criminal and civil cases.
Examples:
A case of Serious Physical Injuries was alleged in the
information filed with the CFI which was then vested with
jurisdiction over this type of cases, even if the medical certificate
attached to the records shows that the injuries are only slight
which falls under the jurisdiction of the municipal court. The
CFI may convict for slight physical injuries. Jurisdiction was
determined from the allegations in the information. (People v.
Ocaya, 83 SCRA 218[1978])
In a civil case for collection of sum of money where the
complaint alleges that the totality of the demand is
P350,000.00, the case is properly filed with the RTC even if the
defendant is able to prove that it is only P50,000.00 for
jurisdiction over the subject matter is determined by the
allegations in the complaint not the defense or evidence
presented.
Exception to the rule that jurisdiction is determined by the
allegations of the complaint
The general rule is not applied with rigidity in ejectment
cases in which the defendant averred the defense of the
existence of tenancy relationship between the parties.
In Ignacio vs. CFI of Bulacan (42 SCRA 89), it was held, ”that
while the allegations in the complaint make out a case of
forcible entry, where tenancy is averred by way of defense
and is proved to be the real issue, the case should be
dismissed for lack of jurisdiction as the case should properly be
filed with the then Court of Agrarian
Reform (now DARAB) (De la Cruz vs. CA 510 SCRA 103)
8
In Ignacio and other ejectment cases (Salandanan vs. Tizon 62
SCRA 388; Concepcion vs. CFI of Bulacan 119 SCRA 222),
where tenancy was the defense, the court went beyond the
allegations of the complaint in determining jurisdiction
over the subject matter and required the presentation of
evidence to prove or disprove the defense of tenancy. After
finding the real issue to be tenancy, the cases were
dismissed for lack of jurisdiction.
In Salmorin vs. Zaldivar, GR No. 169691, July 23, 2008, the
plaintiff entered into an agreement with the defendant
designating him as administrator of a lot with a monthly salary
of P150. The defendant allegedly did not comply with the terms
of the agreement when he failed to till the vacant areas as
agreed. This compelled the plaintiff to terminate his services
and eject him from the lot. When the defendant refused to
vacate the property, the plaintiff filed a complaint for unlawful
detainer against him in the MCTC.
In his Answer, the defendant alleged the existence of a tenancy
relationship between him and the plaintiff. Thus, he claimed
that the case was an agrarian matter over which the MCTC had
no jurisdiction.
The Court found that the plaintiff alleged the following:
(1) That he possessed the subject lot;
(2) That he instituted the defendant as administrator
thereof;
(3) That the defendant failed to administer the subject lot
by not having the vacant areas thereof planted;
(4) That for the defendant’s failure to administer the
subject lot, his services as administrator was
terminated;
(5) That he advised defendant through registered mail to
leave or vacate the subject lot; and
(6) That the defendant refused to vacate the subject lot
without justification.
The Court ruled that from its material allegations, the complaint
concerned the unlawful detainer by the defendant of the subject
lot, a matter which is properly within the jurisdiction of the
regular courts.
The allegation of tenancy in the defendant’s answer did not
automatically deprive the MCTC of its jurisdiction because the
jurisdiction of the court over the nature of the action and the
subject matter thereof cannot be made to depend upon the
defenses set up in the court or upon a motion to dismiss.
Otherwise, the Court ruled, the question of jurisdiction would
depend almost entirely on the defendant. Accordingly, the
MCTC does not lose its jurisdiction over an ejectment case
by the simple expedient of a party raising as defense
therein the alleged existence of a tenancy relationship
between the parties. It is however, the duty of the court to
receive evidence to determine the allegations of tenancy. If
after hearing, tenancy had in fact been shown to be the real
issue, the court should dismiss the case for lack of
jurisdiction.
The Court further stressed that a tenancy relationship
cannot be presumed. There must be evidence to prove the
tenancy relations such that all its indispensable elements
must be established, to wit:
(1) The parties are the landowner and tenant;
(2) The subject is agricultural land;
(3) There is consent by the landowner;
(4) The purpose is agricultural production; (5) There is
personal cultivation; and
(6) There is sharing of the harvests.
All these requisites are necessary to create tenancy
relationship, and the absence of one or more requisites will
not make the alleged tenant a de facto tenant. All these
elements must concur. It is not enough that they are
alleged.
The statement that jurisdiction is conferred by substantive law is
not accurate because only jurisdiction over the subject matter is
conferred by substantive law. Jurisdiction over the parties, issues
and res is governed by procedural laws.
No Retroactive Effect of Law on Jurisdiction
Jurisdiction being a matter of substantive law, the
established rule is that statute in force at the time of the
commencement of the action determines jurisdiction – RA
7691 has no retroactive application. (Yu Oh v. CA GR No.
125297, June 6, 2003) This follows the general rule on
application of laws.
Q: Why is jurisdiction substantive not procedural?
A: Because the law vests, defines, regulates, authority or power.
Doctrine of Continuity of jurisdiction (Adherence of
Jurisdiction)
Under this rule, jurisdiction, once it attaches cannot be
ousted by the happening of subsequent events although of
such a character which should have prevented jurisdiction
from attaching in the first instance (Ramos vs. Central
Bank of the Phil. 41 SCRA 586 [1971]).
The court, once jurisdiction has been acquired, retains that
jurisdiction until it finally disposes of the case (De La Rosa vs.
Roldan, 501 SCRA 34).
As a consequence of this principle, jurisdiction is not affected by
a new law placing a proceeding under the jurisdiction of another
tribunal except when otherwise provided in the statute or if the
statute is clearly intended to apply to actions pending even
before its enactment (People vs. Cawaling, 293 SCRA 267)
Thus, when RA No. 7691 expanded the jurisdiction of the first
level courts, said courts acquired jurisdiction over cases that
under BP 129 were originally within the jurisdiction of the RTC.
But cases pending already with the RTC at the time of the
effectivity of the law were not affected by such new law unless
the parties by agreement, pursuant to Sec. 7 therein, agreed to
transfer the pending cases from the RTC to the lower courts
especially those which have reached the pre-trial stage.
In an action for ejectment, if the defendant voluntarily
surrenders the premises subject of the action to the plaintiff,
the surrender of the property does not divest the court of
jurisdiction (Pamintuan vs. Tiglao 53 Phil. 1)
If the court has jurisdiction to act on a motion at the time it was
filed, that jurisdiction to resolve the motion continues until the
matter is resolved and is not lost by the subsequent filing of a
notice of appeal. (Asmala vs. Comelec, 289 SCRA 746)
The trial court did not lose jurisdiction over the case involving a
public official by the mere fact that said official ceased to be in
office during the pendency of the case (Flores vs. Sumaljag, 290
SCRA 568). Also, the jurisdiction that the court had at the time
of the filing of the complaint is not lost by the mere fact that the
respondent judge ceased to be in office during the pendency of
the case (Victory Liner vs. Bellosillo, 425 SCRA 79).
Even the finality of the judgment does not totally deprive
the court of jurisdiction over the case. What the court loses
if the power to amend, modify or alter the judgment. Even
after the judgment has become final, the court retains
jurisdiction to enforce and execute it (Echegaray vs. Sec. of
Justice, 301 SCRA 96; Republic vs. Atlas Farms, 345 SCRA
296).
Exception to the Rule of Adherence/Continuity of
Jurisdiction
1. When there is an express provision in the statute
on retroactive application; or
2. The statute is clearly intended to apply to actions
pending before its enactment; or
3. The statute is curative. This means that even if
originally there was no jurisdiction, the lack of
jurisdiction may be cured by the issuance of the
amendatory decree which is in the nature of a
curative statute with retrospective application to a
pending proceeding and cures that lack of
jurisdiction. Thus, in a case, while the CFI has no
jurisdiction over a complaint for damages arising from
the dismissal of a radio station manager which was
filed on August 2, 1976, PD 1367 vesting the court
with jurisdiction over such type of cases cured the lack
9
of jurisdiction of the trial court at the time the instant
claim was filed before it. (Garcia vs.
Martinez 90 SCRA 331 [1979])
Read also Atlas Fertilizer vs. Hon. Exaltacion Navarro,
149
SCRA 432)
How Jurisdiction Over the Subject Matter is Acquired By
the Court
1. It is conferred by law applicable at the time of the
commencement of the action; and
2. Jurisdiction must be properly invoked by filing the
complaint or information.
DOCTRINE OF PRIMARY JURISDICTION
Statement of the Doctrine
Under this doctrine, courts will not resolve a controversy
involving a question which is within its jurisdiction and
also of an administrative tribunal, especially where the
question demands the exercise of sound administrative
discretion requiring the special knowledge and experience
of said tribunal in determining technical and intricate
matters of fact. (Villaflor vs. CA, GR No. 95694, Oct. 8,
1997).
Where a case is such that its determination requires the
expertise, specialized skills and knowledge of the proper
administrative bodies because technical matters or intricate
questions of fact are involved, then relief must be obtained in an
administrative proceeding before a remedy will be supplied by
the courts even though the matter is within the proper
jurisdiction of a court. This is the doctrine of primary
jurisdiction. It applies “where a claim is originally cognizable
in the courts, and comes into play whenever enforcement of
the claim requires the resolution of issues which, under a
regulatory scheme, have been placed within the special
competence of an administrative body, in such case, the
judicial process is suspended pending referral of such issues
to the administrative body for its view.” (US v. Western
Pacific Railroad Co., 352 US 59; Industrial Enterprises, Inc. v.
CA, 184 SCRA 426)
Example: Damages is claimed arising from the collision between
the claimant's vessel and that of another. Such claim can of
course be determined by the courts. But in order to enforce
such claim before the courts, there must be a determination of
which vessel is at fault. This is issue is placed within the special
special competence of the Maritime Industry Authority or
Philippine Coast Guard which administrative body regulates sea
travel. Under this situation courts should defer to the
jurisdiction of such administrative body for it has the
competence to determine which vessel is at fault. Its finding
then can serve as basis or premise for the legal consequences to
be then defined by the court.
In Far East Conference v. US 342 US 570 (1952) the Court
defined the primary jurisdiction doctrine as:
A principle, now firmly established, that in cases raising issues
of fact not within the conventional expertise of judges or cases
requiring the exercise of administrative discretion, agencies
created by Congress for regulating the subject matter should
not be passed over. This is even though the facts after they have
been appraised by specialized competence serve as a premise for
legal consequences to be judicially defined. Uniformity and
consistency in the regulation of business entrusted to a
particular agency are secured, and the limited functions of
review by the judiciary are more rationally exercised, by
preliminary resort for ascertaining and interpreting the
circumstances underlying legal issues to agencies that are
better equipped than courts by specialization, by insight
gained through experience, and by more flexible procedure.
Since the inception of the doctrine courts have resisted
creating any fixed rules or formulas for its application,
“in every case the question is whether the reasons for the
existence of the doctrine are present and whether the
purposes it serves will be aided by its application in the
particular litigation.” As the origin and evolution of the
primary jurisdiction doctrine demonstrate, the reasons for
the existence and the purposes it serves are two-fold: the
desire for the uniformity and the reliance on
administrative expertise. Thus, in determining whether to
apply the primary jurisdiction doctrine, we must examine
whether doing so would serve either of these purposes.
These same tests were applied by our courts in the
determination of whether or not to apply the doctrine of primary
jurisdiction. Spouses Jose Abejo and Aurora Abejo, et a., v.
Hon. Rafael de la
Cruz, etc. et al., 149 SCRA 654, citing Pambujan Sur United
Mine
Workers v. Samar Mining Co., In., 94 Phil. 932, 941 [1954])
See GMA Network, Inc., v. ABS-CBN Broadcasting Corporation,
G.R.
No. 160703, September 23, 2005.
In Paat v. CA, 266 SCRA 167 the Court said that enforcement
of forestry laws, rules and regulations and the protection,
development and management of forest lands fall within the
primary and special responsibilities of the DENR. By the very
nature of the functions, the DENR should be given a free hand
unperturbed by judicial intrusion to determine a controversy
which is well within its jurisdiction. The assumption therefore
of the replevin suit by the trial court filed by the private
respondents constitutes an unjustified encroachment into
the domain of the administrative agency’s prerogative.
Quasi-judicial bodies like the CSC are better equipped in
handling cases involving the employment status of
employees of those in the civil service since it is within the
field of its expertise. (Paloma v. Mora GR No. 157783, Sept.
23, 2005)
Doctrine of Ancillary Jurisdiction
It involves the inherent or implied power of the court to
determine issues incidental to the exercise of its primary
jurisdiction.
Under its ancillary jurisdiction, a court may determine all
questions relative to the matters brought before it, regulate
the manner in which a trial shall be conducted, determine
the hours at which the witnesses and lawyers may be heard,
direct the disposition of money deposited incourt in the
course of the proceedings, appoint a receiver an grant an
injunction, attachment or garnishment.
Doctrine of Judicial Stability or Non-Interference
GR: No court has the authority to interfere by injunction
with the judgment of another court of coordinate
jurisdiction or to pass upon or scrutinize and much less
declare as unjust a judgment of another court. (Industrial
Enterprises, Inc. vs. CA GR No. 88550, April 18, 1990)
Exc: The doctrine of judicial stability does not apply where
a third party claimant is involved. (Santos vs. Bayhon, GR
No. 88643, July 23, 1991).
Objections to jurisdiction over the subject matter
The court may on its own initiative object to an erroneous
jurisdiction and may ex mero motu take cognizance of lack
of jurisdiction at any point in the case and has a clearly
recognized right to determine its own jurisdiction (Fabian
vs. Desierto, 295 SCRA 470). “When it appears from the
pleadings or evidence on record that the court has no
jurisdiction over the subject matter,…the court shall dismiss
the same” (Sec. 1, Rule 9, Rules of Court)
The earliest opportunity of a party to raise the issue of
jurisdiction is in a motion to dismiss filed before the filing or
service of an answer. Lack of jurisdiction over the subject
matter is a ground for a motion to dismiss (Sec. 1(b), Rule 16,
Rules of Court). If no motion is filed, the defense of lack of
jurisdiction may be raised as an affirmative defense in the
answer (Sec. 6, Rule 16)
Under the Omnibus Motion rule, a motion attacking a pleading
like a motion to dismiss, shall include all grounds then
available, and all objections not so included shall be deemed
waived (Sec. 8 Rule 15). The defense of lack of jurisdiction over
the subject matter is however, a defense not barred by the
failure to invoke the same in a motion to dismiss already filed.
Even if a motion to dismiss was filed and the issue of
jurisdiction was not raised therein, a party may, when he files
10
an answer, raise the lack of jurisdiction as an affirmative
defense because this defense is not barred under the omnibus
motion rule
Thus, the prevailing rule is that jurisdiction over the
subject matter may be raised at any stage of the
proceedings, even for the first time on appeal (Calimlim vs.
Ramirez, 118 SCRA 399; Francel Realty Corporation vs.
Sycip 469 SCRA 424).
The issue is so basic that it may be raised at any stage of
the proceedings, even on appeal. In fact, courts may take
cognizance of the issue even if not raised by the parties.
There is thus no reason to preclude the Court of Appeals,
for example, from ruling on this issue even if the same has
not yet been resolved by the trial court below (Asia
International Auctioneers, Inc. vs. GR No. 163445, Dec. 18,
2007).
Lack of jurisdiction is one of those excepted grounds where the
court may dismiss a claim or a case at any time when it appears
from the pleadings or the evidence on record that any of those
ground exists, even if they were not raised in the answer or in a
motion to dismiss. That the issue of lack of jurisdiction was
raised only by the defendants in their memorandum filed before
the trial court did not render them in estoppel (Vda. De Barrera
vs. Heirs of Vicente Legaspi GR No. 174346 Sept. 12, 2008).
When the court dismisses the complaint for lack of jurisdiction
over the subject matter, should it refer or forward the case to
another court with the proper jurisdiction? It is submitted that
the court should not do so. Its only authority is to dismiss the
complaint and not to make any other order.
Objections to Jurisdiction and Estoppel by Laches
Estoppel means you cannot disown your act by which you have
misled another while laches means abandonment of a right for
failure to assert it for a long time.
GR: You can raise your objection on jurisdiction over the
subject matter even for the first time on appeal.
The ONLY exception is when there is estoppel by laches, as
laid down in TIJAM vs. SIBONGHANOY ( Tijam vs.
Sibonghanoy 23 SCRA 29, April 15, 1968).
In this case, a complaint for collection cognizable by the inferior
court was filed in the CFI. The jurisdiction was not questioned.
The CFI issued a writ of preliminary attachment but was
dissolved when the defendant filed a counterbond thru a surety.
After trial, the court rendered a judgment against the
defendants. That decision became final and a motion for
execution was filed and granted. When implemented, the writ of
execution was unsatisfied so the plaintiff moved that the writ be
executed against the counterbond. The surety filed an
opposition and sought to be relieved from liability. The motion
was denied on ground that the surety was not notified. Plaintiff
then filed a second motion for execution against the
counterbond notifying the surety this time. Since the surety
failed to oppose the motion was granted. The surety moved to
quash the writ against the counterbond but was denied. The
surety went to the Court of Appeals which affirmed the order.
The surety filed a motion for extension of time to file a motion to
for reconsideration which the CA granted. However, instead of
filing a motion for reconsideration the surety filed this time a
motion to dismiss on ground that the CFI did not have
jurisdiction over the subject matter. Instead of deciding the CA
certified the case to the Supreme Court because the issue raised
is purely legal.
The Court emphatically declared: “The facts of the case show
that from the time the Surety became a quasi-party on July 31,
1948, it could have raised the question of the lack of
jurisdiction of the Court of First Instance of Cebu to take
cognizance of the present action by reason of the sum of money
involved which, according to the law then in force, was within
the original exclusive jurisdiction of inferior courts. It failed to
do so. Instead, at several stages of the proceedings, in the court
a quo as well as in the CA, it invoked the jurisdiction of said
courts to obtain affirmative reliefs and submitted its case for a
final adjudication on the merits. It was only after an adverse
decision was rendered by the CA that it finally woke up to raise
the question of jurisdiction. Were we to sanction such conduct
on its part we would in effect be declaring as useless all the
proceedings had in the present case since it was commenced on
July 19, 1948 and compel the judgment creditors to go up their
Calvary once more. The inequity and unfairness of this is not
only patent but revolting.”
In other words, while jurisdiction as a rule, may be raised at any
stage of the proceedings (Panganiban vs. CA, 321SCRA 51, 59
[1999]), a party may be stopped from raising such questions if
he has actively taken part in the very proceedings which he
questions, belatedly objecting to the court’s jurisdiction in the
event that the judgment or order subsequently rendered is
adverse to him. (Alday v. FGU Insurance Corporation, 350 SCRA
113, 120 [2001]).
In general sense, estoppel by laches is failure or neglect for an
unreasonable and unexplained length of time to do what ought
to have been done earlier. The failure to act warrants the
presumption that one has abandoned his right or that he had
acquiesced to the correctness and fairness of what has been
resolved. The doctrine of estoppel is based on public policy
intended to discourage stale claims. Estoppel is not a question
of time unlike the statute of limitations. It is rather based on
the inequity or unfairness of permitting a claim to be
asserted at a time such claim is presumed to have been
abandoned. (Sps. Guillermo Agbada and Maxima Agbada v.
Inter-Urban Developers, Inc. GR 144029, Sept. 19, 2002)
The fact pattern common among those cases wherein the
Court invoked estoppel to prevent a party from questioning
jurisdiction is a party’s active participation in all stages of
a case, including invoking the authority of the court in
seeking affirmative relief and questioning the court’s
jurisdiction only after receiving a ruling or decision adverse
to his case for the purpose of annulling everything done in
the trial in which he has actively participated. As clearly
pointed out in Lao vs. Republic 479 SCRA 439: “A party
who has invoked the jurisdiction of the court over a
particular matter to secure affirmative relief cannot be
permitted to afterwards deny the same jurisdiction to
escape liability.”
The Supreme Court frowns upon the undesirable practice of
submitting one’s case for decision, and then accepting the
judgment only if favorable, but attacking it for lack of
jurisdiction if it is not (Bank of the Philippine Islands vs. ALS
Management and Development Corporation, 427 SCRA 564).
Bar by Estoppel Is An Exception and Not the General Rule
The doctrine laid down in Tijam is the exception to, and not the
general rule (Pangilinan v. CA, 321 SCRA 51, 59 [1999]).
Estoppel by laches may be invoked to bar the issue of
jurisdiction only in cases in which the factual milieu is
analogous to that of Tijam.
In Tijam, the defense of lack of jurisdiction was raised for the
first time in a motion to dismiss filed by the Surety almost
fifteen (15) years after the questioned ruling had been rendered.
At several stages of the proceedings, in the court a quo as well
as in the Court of Appeals, the Surety invoked the jurisdiction of
the said courts to obtain affirmative relief and submitted its
case for final adjudication on the merits. It was only when the
adverse decision was rendered by the Court of Appeals that it
finally woke up to raise the question of jurisdiction (Regalado vs.
Go, GR No. 167988, February6, 2007)
Inspite of Tijam and subsequent cases which invoked it, the
rule that the lack of jurisdiction over the subject matter may be
raised at any stage of the proceedings, even on appeal, still
remains the prevailing rule and Tijam should be confined only
to situations prevailing in a particular case viewed in the light of
the special circumstances surrounding it.
JURISDICTION OVER THE PERSON (PARTIES)
Q: Define jurisdiction over the person.
A: Jurisdiction over the person is the power to render a
personal judgment against a party to an action or
proceeding through the service of process or by voluntary
appearance of a party during the progress of a cause. (Banco
Español-Filipino vs. Palanca, 37 Phil. 291)
It is the power of the court to bring before it persons to be
affected by the judgment so as to give him an opportunity
11
to be heard, and to render a judgment binding upon his
person.
(21C.J.S., Courts, Sec. 11, 1990)
Q: In criminal cases, how does the court acquire jurisdiction
over the person of the accused?
A: By having him
(1) arrested;
(2) by service of the warrant of arrest; or
(3) by his voluntary surrender.
Q: Even if he is not arrested, can the court try an accused?
A: Of course not, because the court has not acquired
jurisdiction over his person. There must first be an arrest or
surrender. The accused can post bail and be released but if he
jumps bail there can be trial in absentia. There will be a valid
decision because the court has already acquired jurisdiction. Of
course we cannot enforce the decision until we catch him.
How does the court acquire jurisdiction over the person?
In civil cases, it is also a must that the court acquires
jurisdiction over the person of the parties. The manner by
which the court acquires jurisdiction over the parties
depends on whether the party is the plaintiff or the
defendant.
As to Plaintiff
Jurisdiction over the person of the plaintiff is acquired by
his/her filing of the complaint or petition. By doing so, he
submits himself/herself to the jurisdiction of the court.
(Davao Light & Power Co. Inc. v. CA, 204 SCRA 343, 348
[1991])
Example: X, a resident of Melbourne, Australia, presented a
complaint against Y, a resident of Manila, before the CFI of
Manila for accounting and damages. X never came to the
Philippines to file the suit and is only represented in this case
by counsel. Y files a motion to dismiss the complaint on the
ground that the court acquired no jurisdiction over the person
of X.
Q: Should the complaint be dismissed on said ground? Why?
A: No. It is a recognized procedural rule that jurisdiction over
the plaintiff is acquired by his/her filing of the complaint in
court. By filing the complaint through his/her counsel, X
invoked the jurisdiction of the court over his person.
As to Defendant
Jurisdiction over the person of the defendant is required only
in action in personam (Asiavest Limited vs. CA, 296 SCRA
539). Jurisdiction over the person of the defendant is not a
prerequisite in an action in rem and quasi in rem (Gomez vs. CA
425 SCRA 98; Biaco vs. Phil. Countryside Rural Bank 515
SCRA 106.
Jurisdiction Over the Person of the Defendant in Actions in
Personam, How Acquired
Jurisdiction over the person of the defendant is obtained either
by a valid service of summons upon him or by his/her
voluntary submission to the court’s authority. (Ang Ping vs.
CA, 310 SCRA 343, 349 [1999]; Davao Light vs. CA)
The service of summons is intended to give official notice to
the defendant or respondent that an action has been
commenced against him. He is thus put on guard as to the
demands of the plaintiff as stated in the complaint. The
service of summons is an important element in the
operation of a court’s jurisdiction upon a party to a suit
because it is the means by which the court acquires
jurisdiction over his person. Without service of summons,
or when the service is improper, the trial and the judgment
being in violation of due process, are both null and void.
(Avon Insurance PLC v. CA, 278 SCRA 312, 325 [1997])
The mode of acquisition of jurisdiction over the plaintiff and the
defendant applies to both ordinary and special civil actions
like mandamus or unlawful detainer cases (Bar 1994).
 First Instance: UPON SERVICE ON HIM OF COERCIVE
PROCESS IN THE MANNER PROVIDED BY LAW
The first instance when a court acquires jurisdiction over the
person of the defendant is through a service upon him of the
appropriate court process which in civil law is called service of
summons. This is the counterpart of warrant of arrest in
criminal procedure.
So if the defendant was never served with summons, any
judgment rendered by the court will not bind him. Even if he is
the loser in the case, judgment cannot be enforced because the
court did not acquire jurisdiction over his person.
The same principle holds true in criminal cases. A court cannot
try and convict an accused over whose person the court never
acquired jurisdiction. In criminal cases, the court acquires
jurisdiction over the person through the issuance and service
of a warrant of arrest. The warrant cannot have its effect even if
it was issued, if the same had not been served, i.e. by effecting
the arrest of the accused by virtue of a warrant.
Q: In criminal cases, how can the warrant of arrest be effected?
A: Once an information has been filed in court, the court issues
a warrant. Then, the arresting officer will arrest the accused.
The court acquires jurisdiction by ENFORCEMENT OF
SERVICE for effective arrest of the accused pursuant to the
warrant of arrest.
Second Instance: BY HIS VOLUNTARY SUBMISSION TO THE
JURISDICTION OF THE COURT
Another way to acquire jurisdiction over the person of the
accused even if the accused is not arrested is through
VOLUNTARY SURRENDER. Since there is no more need for the
warrant, the court will recall the same.
In civil cases, it is the voluntary submission of the defendant to
the jurisdiction of the court.
Q: Defendant was served with summons improperly or
irregularly therefore, he could question the jurisdiction of the
court over his person. But instead, he did not question the
jurisdiction of the court despite the defective service of court
process. Did the court acquire jurisdiction over the person of
the defendant?
A: YES, because jurisdiction over the person can be
acquired by:
a.) waiver;
b.) consent; or
c.) lack of objection by the defendant. (MRR
Co. vs.
Atty. Gen. 20 Phil. 523)
This is unlike the jurisdiction over subject matter wherein the
case could be dismissed upon filing in the wrong court. The SC
said that when you remained silent despite the defects, your
silence has cured the defect. Meaning, the jurisdiction over your
person was acquired by waiver, or consent, or lack of objection.
Q: Distinguish jurisdiction over the subject matter from
jurisdiction over the person of the defendant?
A: Lack of jurisdiction over the person of the defendant
may be cured by waiver, consent, silence or failure to
object, whereas jurisdiction over the subject matter cannot
be cured by failure to object or by silence, waiver or
consent. (MRR Co. vs. Atty. Gen. 20
Phil. 523)
Voluntary Appearance as Voluntary Submission To
Court’s Jurisdiction
Voluntary appearance must be the kind that constitutes
voluntary submission to the court’s jurisdiction. Voluntary
submission to the court’s jurisdiction cannot be inferred from
the defendant’s mere knowledge or existence of a case against
him/her. In general, the form of appearance that would be
12
construed as a voluntary submission to the court’s
jurisdiction is an appearance that seeks affirmative relief
except when the relief is for the purpose of objecting to the
jurisdiction of the court over the person of the defendant.
Certain actions which could be construed as voluntary
appearance are:
1.) when the defendant’s counsel files the
corresponding pleading thereon;
2.) when the defendant files a motion for
reconsideration of the judgment by default;
3.) when the defendant files a petition to set aside
the judgment of default;
4.) when the defendant and plaintiff jointly submit
a compromise agreement for the approval of
the court;
5.) when the defendant files an answer to the
contempt charge;
6.) when the defendant files a petition for
certiorari
without questioning the court’s jurisdiction over
his person (Navale v. CA, 253 SCRA 705, 709, 710,
709-712
[1996])
Objections to jurisdiction over the person of the defendant
An objection to the jurisdiction over the person of the
defendant may be raised as a ground for a motion to
dismiss (Sec. 1(a) Rule 16). If no motion to dismiss has been
filed, the objection may be pleaded as an affirmative
defense in the answer (Sec. 6 Rule 16).
If a motion to dismiss has been filed, the objection to the
lack of jurisdiction over the person of the defendant must
be pleaded in the same motion where such ground is
available at the time the motion is filed, otherwise it is
deemed waived pursuant to the omnibus motion rule. The
defense of lack of jurisdiction over the person of the
defendant is not one of those defenses which are not
deemed waived if not raised in the motion to dismiss. Only
lack of jurisdiction over the subject matter, litis pendentia,
res judicata and prescription are not waived (Sec. 1 Rule 9
in relation to Sec. 8 Rule 15).
Effect of pleading additional defenses aside from lack of
jurisdiction over the person of the defendant
Under the former procedure, if the defendant raises the
objection of lack of jurisdiction over his person in a motion to
dismiss, the motion must rely only on that particular ground. If
the defendant appears in court, objects to its jurisdiction over
his person and at the same time alleges other grounds, the
appearance would be deemed a general appearance which was
in effect a voluntary submission to the jurisdiction of the court
(Republic vs. Kerr 18 SCRA 207; WANG Laboratories VS.
Mendoza 156 SCRA 44).
The above rule was re-examined in La Naval Drug
Corporation vs. CA 236 SCRA 78). The pronouncements in
said case are now embodied in Sec. 20 of Rule 14 which
provides: ****The inclusion in a motion to dismiss of other
grounds aside from lack of jurisdiction over the person of
the defendant shall not be deemed a voluntary appearance.
C. JURISDICTION OVER THE RES
RES is the Latin word for “thing.” It is applied to an object,
subject matter (not nature of the action), status, considered
as the defendant in the action or as the object against
which, directly, proceedings are taken. (Black’s 5th Ed.,
1172)
Q: Define jurisdiction over the res.
A: Jurisdiction over the res is the power or authority of the
court over the thing or property under litigation. (Perkins
v. Dizon, 69 Phil. 186, 190 [1939])
It is the power to bind the “thing”.
How is it acquired?
It is acquired either by the (a) the seizure of the property
under legal process whereby it is brought into actual or
constructive custody of the court’ or (b) as a result of the
institution of legal proceedings, in which the power of the
court is recognized and made effective. (Macahilig vs. Heirs
of Grace M. Magalit, GR No. 141423, Nov. 15, 2000)
Q: A files a case for recovery of ownership against B over a piece
of land. What is the res of the case?
A: The piece of land is the res of the case.
What is the nature of the action?
To recover ownership of real property or real action.
Q: However, res may not be tangible. For example, X is an
illegitimate child. She wants to be acknowledged by her father.
Thus, she filed a case against her father for compulsory
recognition. What is the res?
A: The res is the status of the child because it is the object of
the litigation.
Q: Why is jurisdiction over the res important?
A: Sometimes it is a substitute for jurisdiction over the
person. There are instances when the court cannot acquire
jurisdiction over the defendant like when he is abroad. But if
the court acquires jurisdiction over the res, the case may go on.
Even if the court cannot acquire jurisdiction over the person of
the defendant, jurisdiction over the res becomes a substitute
over the person.
In the example of action for compulsory recognition, even if the
defendant is a non-resident who is out of the country the object
of litigation is status here in the Philippines, then acquisition of
jurisdiction over the res confers jurisdiction to the court even if
the defendant is abroad. The res here is the thing or object or
status against which or in relation to which the judgment can
be enforced.
Acquisition of jurisdiction over the res by actual seizure is
exemplified by an attachment proceeding where the
property is seized at the commencement of the action or at
some subsequent stage in the action. It is also acquired
through a legal provision which authorizes the court to
exercise authority over a property or subject matter such as
suits involving a person’s status or property located in the
Philippines in actions in rem or quasi in rem. (Banco
Espanol Filipino vs. Palanca 37 Phil. 921, 927 [1918]; Perkins v.
Dizon; Sec. 15, Rule 14, Rules of Court.)
In Land Registration cases or probate proceedings,
jurisdiction is acquired by compliance with procedural
requisites, such as publication.
In a petition for change of name, the title of the petition
must be complete by including the name sought to be
adopted; otherwise, the court acquires no jurisdiction over
the proceedings. (Telmo vs. Republic, 73 SCRA 29 (1976).
D. JURISDICTION OVER THE ISSUES
Meaning of Issue
An issue is a disputed point or question to which parties to
an action have narrowed down their several allegations and
upon which they are desirous of obtaining a decision.
(Black’s 5th Ed., 745 citing Muller v. Muller, 235 Cal App. 2 nd
341, 45 Cal. Rptr 182,
184)
How Jurisdiction Over The Issues Is Conferred and
Determined
In order to determine whether or not a court has jurisdiction
over the issue or issues of the case, one must examine the
pleadings.
Q: Define jurisdiction over the issues.
13
A: Jurisdiction over the issue is the authority to try and
decide the issues raised in the pleadings of the parties.
(Reyes vs. Diaz, 73 Phil. 484)
Q: What are pleadings?
A: Rule 6, Section 1 - Pleadings are the written allegation of
the parties of their respective claims and defenses
submitted to the court for trial and judgment.
In a civil case, pleadings are written statements of the respective
positions of the parties, namely, the claims for the plaintiff and
defenses for the defendant.
EXAMPLE: X files a case for collection of sum of money against
Y. The pleading that X will file will contain the written
statements of his claim. He will narrate there for instance that Y
borrowed money from him promising to pay it on a day certain
but when it became due no payment was made despite
demands so he suffered actual loss or damage aside from moral
damage.
By way of response, X will file his position in writing stating his
defenses like denying the loan; the promissory note is a forgery
or admitting the loan but claiming that it had already been paid
or the action has prescribed. This written statement of his
position containing his defense or defenses is a pleading called
an answer. In the answer Y can also allege claims, if he has any
against the plaintiff like the case is merely intended to harass
him for which reason he suffered damages. This is called a
counterclaim, another pleading and X can in turn file an answer
to the counterclaim where he will state his defense/s as regards
the claim contained in the counterclaim.
Based on their allegations and counter-allegations the court will
know what issues are to be resolved.
Q: So, if X says that Y borrowed money, and never paid
him, while Y, in answer states that he did borrow but
already paid it, what issue is being presented to be
resolved by the court?
A: The issue is, whether the obligation is still existing or is
it already extinguished by payment. So that is how the
court will know what it will try in this case.
Q: Let us suppose that after the trial, the court said in its
decision that the obligation has been extinguished by
condonation. Will that bind?
A: No, because the parties did not raise condonation as the
issue. So the court decided that issue over which it never
acquired jurisdiction.
In other words, the court should only rule on what the parties
raised in their pleadings. That is what we call jurisdiction over
the issue.
Jurisdiction over the issue is, therefore, conferred and
determined by the pleadings of the parties.
Jurisdiction over the issues may also be determined and
conferred by stipulation of the parties as when in the pre-
trial, the parties enter into stipulation of facts and
documents or enter into an agreement simplifying the
issues of the case (Sec. 2 Rule 18)
Jurisdiction over the issues may also be conferred by
waiver or failure to object to the presentation of evidence
on a matter not raised in the pleadings. Here the parties try
with their express or implied consent issues not raised by
the pleadings. The issues tried shall be treated in all
respects as if they had been raised in the pleadings (Sec. 5
Rule 10).
Jurisdiction Over the Subject Matter Distinguished from
Jurisdiction Over the Issues
Jurisdiction over the issues is conferred by the pleadings and by
the express (stipulation) or implied (failure to object to
evidence) consent of the parties because an issue not duly
pleaded may be validly tried and decided by the court as long as
there is no objection from the parties. Jurisdiction over the
subject matter is conferred by law and cannot be subject to the
agreement of the parties. (Vda de Victoria v. CA, GR No.
147550, Jan. 26, 2005) A: The following are the distinctions:
1.) Jurisdiction over the subject matter is the
power to hear and try a particular case,
while
Jurisdiction over the issues is the power
of the court to resolve legal questions
involved in the case;
2.) Jurisdiction over the subject matter is
acquired
upon filing of the complaint, while
Jurisdiction over the issues of the case is
acquiredupon filing of the answer which joins the
issues involved in the case.
When An Issue Arises Even If Not Raised In the Pleadings
Although it is a rule that jurisdiction over the issue is to be
determined by the pleadings of the parties, an issue may arise
in a case without it being raised in the pleadings. This happens
when the parties try an issue with their consent. Under Sec. 5,
Rule 10 of the Rules of Court, when issues not raised by the
pleadings are tried with the express or the implied consent of
the parties, they shall be treated in all respects, as if they had
been raised in the pleadings. Thus, if evidence on a claim for
salary differential is not objected to, the Labor Arbiter correctly
considered the evidence even if the claim is not mentioned in
the complaint. (Cindy and Lynsy Garment v. NLRC, 284 SCRA
38, 45 [1998])
Take note that jurisdiction over the issues in civil cases is
acquired after defendant has filed an answer. In criminal cases,
jurisdiction over the issues is acquired when the accused enters
a plea of not guilty or pleads guilty but seeks to prove a
mitigating circumstance.
For a decision to be effective, the court must acquire the
jurisdiction over the subject matter, the person, the res in case
the defendant is not around, and the last is jurisdiction over the
issue.
JURISDICTION OVER THE SUBJECT MATTER
THE SUPREME COURT
The highest court of the land is the Supreme Court. It was not
affected by the Judiciary Law (BP 129) which reorganized the
judiciary in 1983. Being a constitutional court, its jurisdiction is
found in the fundamental law itself. The SC is both an original
and appellate court.
Composition
It is composed of the Chief Justice and 14 Associate Justices.
The Constitution ordains that the President appoints the
members of the SC and judges of lower courts from a list of at
least three nominees prepared by the JBC for every vacancy and
requires the President to issue appointments, for lower courts,
within 90 days from submission of the list (Art. VIII, Sec. 9) and
to fill the vacancy of the SC within 90 days from its occurrence.
(Art. VIII Sec. 4(1). All such appointments need no confirmation.
(Sec. 9)
Divisions and En Banc
The SC sits either en banc or in divisions of 3, 5 or 7 members.
At present, it has 3 divisions of 5 members each.
A decision or resolution of a division, when concurred in by a
majority of its members who actually took part in the
deliberations on the issues in a case and voted thereon, and in
no case without the concurrence of at least 3 of such members,
is a decision or resolution of the SC. (Sec. 4(3) Art. VIII
Constitution).
The Court en banc is not an appellate court to which decisions
or resolutions of a division may be appealed. (Circular No. 2-89)
14
No doctrine or principle of law laid down by the court in a
decision rendered en banc or in division may be modified or
reversed except by the court sitting en banc. (Sec. 4(3))
How a Case Before a Division is Referred to the Court en
banc
At any time after a Division takes cognizance of a case and
before a judgment or resolution therein rendered becomes final
and executor, the Division may refer the case en consulta to the
court en banc which, after consideration of the reasons of the
division for such referral, may return the case to the Division or
accept the case for decision or resolution.
Cases assigned to a Division including motions for
reconsideration which in the opinion of at least 3 members
merit the attention of the court en banc and are accepted by the
majority vote of the actual members of the court en banc may
be considered as en banc cases.
A resolution of the Division denying a party’s motion for referral
to the Court en banc of any division shall be final and not
appealable to the Court en banc.
When a decision or resolution is referred by a division to the
Court en banc, the latter may in the absence of sufficiently
important reasons decline to take cognizance of the same, in
which case, the decision or resolution shall be returned to the
referring Division. (Circular No. 2-89 effective March 1, 1989)
En Banc Cases
In a resolution dated February 23, 1984, the following are
considered en banc cases:
a.) Cases in which the constitutionality or validity of any
treaty, executive agreement, law, ordinance or
executive order or regulation is in question;
b.) Criminal cases in which the decision imposes the death
penalty;
c.) Cases raising novel questions of law;
d.) Cases affecting ambassadors, public ministers and
consuls;
e.) Cases where a doctrine or principle laid down by the
court en banc or in division may be modified or
reversed;
f.) Cases assigned to a division including motions for
reconsideration which in the opinion of at least 3
members merit the attention of the Court en banc
and are acceptable to a majority vote of the actual
membership of the Court en banc;
g.) All other cases as the Court en banc by a majority of its
actual membership may deem
of sufficient
importance to merit its attention;
h.) Cases where the penalty to be imposed is the dismissal
of a judge, officer, or employee of the SC,
disbarment of a lawyer, or suspension of any of
them for a period of more than one year or a fine
of
P10,000.00, or both;
i.) Cases involving decisions, resolutions or orders of
the Sandiganbayan, Comelec, COA,
or Military
Tribunals;
j.) Habeas corpus against government or military officials;
Principal Functions of the Supreme Court
a. Adjudication (Judicial Power)
b. Administration or Disciplinary power
c. Rule-making (Rule-making Power)
ORIGINAL JURISDICTION OF THE SUPREME COURT
Article VIII, Section 5, paragraph 1 of the 1987 Constitution
enumerates the ORIGINAL jurisdiction of the SC:
Section 5. The Supreme Court shall have the
following powers:
[1] Exercise original jurisdiction over cases
affecting ambassadors, other public
 ministers and consuls, over petitions for
certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.
Note that the foregoing provision does not define
the original jurisdiction of the SC as exclusive,
hence it can be concurrent or exclusive.
When is it exclusive and when concurrent?
Original Exclusive
The ORIGINAL EXCLUSIVE jurisdiction of the SC refers to
petitions for the issuance of writs of certiorari, prohibition and
mandamus as defined in Rule 65 against the following:
a) the CA (Judiciary Act of 1948);
b) the COMELEC (Art. IX Sec. 7, 1987 Constitution);
c) COA (Art. IX Sec. 7 1987 Constitution; and
d) Sandiganbayan (PD No. 1606);
e) Court of Tax Appeals because it has now the same rank
as the CA by virtue of RA 9282.
Original Concurrent
A. With CA – T he cases where its original jurisdiction is
CONCURRENT with the CA are: petitions for the issuance
of writs of certiorari, prohibition, mandamus against the
following:
a. the CSC (RA No. 7902);
b. Central Board of Assessment Appeals (PD No. 464; BP
Blg.
129; RA No. 7902);
c. NLRC (St. Martin Funeral Homes vs. NLRC 295 SCRA
494; RA No. 7902) or the Secretary of Labor under the
Labor Code.
d. Quasi-judicial agencies (BP Blg. 129; RA No. 7902; Heirs
of
Hinog vs. Melicor, 455 SCRA 460)
e. Also, issuance of writ of certiorari, prohibition and
mandamus against the RTC.
B. CONCURRENT with the RTC – are those actions affecting
ambassadors and other public ministers and consuls (Sec.
21[2] BP Blg 129; Art. VIII Sec. 5 1987 Constitution).
C. CONCURRENT with the CA and RTC – are those involving
habeas corpus, quo warranto, and writs of certiorari,
prohibition, and mandamus against inferior courts and
bodies (Secs. 9[1], 21[2]2, BP Blg. 129; Art. VIII Sec. 5,
1987 Constitution).
For example, a petition for mandamus against the MTC of
Cebu City can be filed with the SC, CA, or RTC although
the policy of the Supreme Court is that it should be filed
with the RTC based on the hierarchy of the courts. (Vergara
vs. Suelto, 156 SCRA 758)
D. CONCURRENT WITH CA, SANDIGANBAYAN and RTC –
are petitions for issuance of writ of Amparo and petitions
for Habeas Data, where the action involves public data or
government office.
E. Finally, with the advent of the new law (RA 8249), there is
now a CONCURRENCE between the SC and the
Sandiganbayan in so far as petitions for certiorari,
prohibition, mandamus, habeas corpus, injunction and
other ancillary writs in aid of the Sandiganbayan's
APPELLATE JURISDICTION i.e. only in connection with a
case appealed to the Sandiganbayan.
This concurrent jurisdiction is subject to the doctrine of
hierarchy of courts (Liga ng mga Barangay National vs. Atienza
420 SCRA 562; Lacson Hermanas Inc. vs. Heirs of Ignacio 462
SCRA 290).
APPELLATE JURISDICTION OF THE SUPREME COURT
The appellate jurisdiction is found in Section 5, Paragraph (2),
Article VIII 1987 Constitution:
15
2) Review, revise, reverse, modify, or
affirm on appeal or certiorari, as the law
or the Rules of Court may provide, final
judgments and orders of lower courts in:
a) All cases in which the constitutionality
or validity of any treaty, international or
executive agreement, law, presidential
decree, proclamation, order, instruction,
ordinance, or regulation is in question.
b) All cases involving the legality of any
tax, impost, assessment, or toll, or any
penalty imposed in relation thereto.
c) All cases in which the jurisdiction of any
lower court is in issue.
d) All criminal cases in which the penalty
imposed is reclusion perpetua or higher.
e) All cases in which an error or question
of law is involved.
If (a), (b), and (c) also involve questions
of facts or mixed questions of fact and
of law, the aggrieved party shall appeal
to the Court of Appeals; and its final
judgment may be appealed to the
Supreme Court. (Subpar 4, Third Par.
Sec. 17, Judiciary Act or RA 544)
a) All cases in which the constitutionality or
validity of any treaty, international or
executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or
regulation is in question.
So if the RTC, which has the power, declares the law as
unconstitutional, the same has to be appealed directly to
the SC. It cannot pass through the CA because the SC has
exclusive appellate jurisdiction regarding the matter.
b) All cases involving the legality of any tax,
impost, assessment, or toll, or any penalty
imposed in relation thereto.
This is related to the legality of tax cases – whether a tax or
tax penalty is legal or not. However, whatever decision the
lower court gives, it has to be appealed directly to the SC.
c) All cases in which the jurisdiction of any lower
court is in issue
EXAMPLE: The RTC or the MTC says it has jurisdiction or it
has no jurisdiction over a case. The aggrieved party, it if wants
to raise that issue, it must go to the SC. When the issue is
purely jurisdiction, the SC shall have exclusive appellate
jurisdiction.
Now, when the law says all cases in which the jurisdiction of
any lower court is in issue, the cases involve 100% pure
jurisdiction as an issue. There are no factual issues involved. If
the issue of jurisdiction is mixed with a factual issue, the appeal
should be in the CA without prejudice to the filing of the same
with the SC later. So, this is 100% issue of jurisdiction. No
factual issue is involved.
d) All criminal cases in which the penalty
imposed is reclusion perpetua or higher.
We discussed this in Criminal Procedure.
e) All cases in which only an error or question of
law is involved.
Take note that ONLY an error or question of law is involved. So,
if there is a mixed question of law and a question of fact, appeal
must be filed with the CA. You only go to the SC if the appeal is
100% legal. That applies to both criminal and civil cases.
QUESTIONS OF LAW and QUESTIONS OF FACT
There is a question of law when the doubt or difference arises as
to what the law is on a certain set of facts. There is a question of
fact when the doubt or difference arises as to the truth or
falsehood of the alleged facts (Sps. Santos vs. CA 337 SCRA 67).
Example: Where the question is whether or not the debtor has
paid the debt, the issue is one of fact. Where the question is
whether or not the manner of payment is of the type which
produces the legal effect of extinguishing the obligation, the
issue becomes one of law. Also, when under the set of facts the
issue is whether or not the law on double sales applies, there is
a question of law.
When the issue involves a review of the evidence, it involves a
question of fact because evidence, as defined, is the means,
sanctioned by the rules, of ascertaining in a judicial proceeding
the truth respecting a matter of fact. (Sec. 1 Rule 128)
In an action for declaration of nullity of marriage the basis is
psychological incapacity. The RTC/Family Court dismissed the
case finding that there was no psychological incapacity. If the
plaintiff wants to appeal from that judgment, can she appeal
directly to the SC? Is it a question of fact or law?
No. The appeal should be to the CA. The issue raised is a
question of fact because there is need to review the evidence to
resolve it.
Suppose the court nullified the marriage on ground of
impotence and the defendant wants to appeal because he wants
to raise the issue whether or not impotence is a ground for
declaration of nullity of marriage this would be a question of law
because there is no need for review of the evidence to resolve it.
So appeal is to the SC.
OTHER CONSTITUTIONAL PROVISIONS DEALING WITH
THE
JURISDICTION OF THE SUPREME COURT
Article IX, Section 7, paragraph (a), 1987 Constitution:
“Each Commission shall decide by a
majority vote x x x. Unless otherwise
provided by this Constitution or by law,
any decision, order, or ruling of each
Commission may be brought to the
Supreme Court on certiorari by the
aggrieved party within thirty days from
receipt of a copy thereof.”
The COMELEC, COA and the CSC act also as courts of justice.
They have powers to decide certain cases within their
jurisdiction. Election cases are covered by the COMELEC,
claims against the government, by COA and eligibility or
removal from government service of an appointive employee, by
CSC.
Now, according to Section 7, any decision, order or ruling of
these commissions may be brought to the SC on certiorari, etc.
So you will see that the decisions of the constitutional
commissions are reviewable by the SC.
However, Congress amended the Judiciary Law particularly
Section 9 on the jurisdiction of the CA by now making decisions
of the CSC no longer appealable to the SC directly but
appealable to the CA. So based on the present law, out of the
three constitutional commissions, the only ones whose
decisions are appealable directly to the SC are those of the
COMELEC and the COA
What is the basis for Congress to pass such a law where a
decision of a constitutional body (CSC) is reviewable by a non-
constitutional body?
Under the Constitution, decisions of the constitutional
commissions are appealable to the SC. Does Congress have the
power to change that by making it appealable to the CA?
Yes because the provision, it says: “Unless otherwise provided
by this Constitution or by law..” Meaning, the decisions are
appealable to the SC unless otherwise provided by law. The
Constitution itself gave Congress the power to change it.
SC as Presidential Electoral Tribunal
16
Article VII, Section 4, last paragraph, 1987 Constitution:
“The Supreme Court, sitting en banc, shall
be the sole judge of all contests relating to
the election, returns, and qualifications of
the President or Vice-President, and may
promulgate its rules for the purpose.”
If there’s an electoral protest for the President and Vice-
President, the matter is not to be decided by the COMELEC but
by the SC acting as the Presidential Electoral Tribunal.
Judicial Review of Presidential Proclamation of Martial or
Suspension of the Privilege of the Writ of Habeas Corpus
Article VII, Section 18 (3), 1987 Constitution – Commander-in-
Chief
Clause
“The Supreme Court may review, in an
appropriate proceeding filed by any
citizen, the sufficiency of the factual basis
of the proclamation of martial law or the
suspension of the privilege of the writ or
extension thereof, and must promulgate
its decision thereon within thirty days
from its
filing.”
So, the SC, in an appropriate proceeding filed by any citizen
review the sufficiency of the factual basis of the proclamation of
martial law. Meaning, the SC can inquire into the basis on why
martial law is declared.
This is intended to prevent the Supreme Court from invoking
the Political Question doctrine laid down in many earlier cases
that it is the prerogative of the President to determine, at his
discretion, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of
the writ or the extension thereof.
Congress and Jurisdiction of the SC
1.) Article VIII, Section 2, 1987 Constitution:
The Congress shall have the power to
define, prescribe, and apportion the
jurisdiction of the various courts but may
not deprive the Supreme Court of its
jurisdiction over cases enumerated in
Section 5 hereof.
Congress may change or even remove the jurisdiction of the RTC
or CA. The law can change them because jurisdiction over the
subject matter is conferred by law. However, Congress does not
have the power to lessen or deprive the Supreme Court of its
jurisdiction under Section 5, Article VIII.
2.) However Article VI, Section 30 states:
“No law shall be passed increasing the
appellate jurisdiction of the Supreme Court as
provided in this Constitution without its
advice and concurrence.”
Thus , Congress cannot lessen but it can increase the SC’s
powers and jurisdiction, PROVIDED it is with the latter's advice
and concurrence.
So more or less, these are the scattered provisions of the
Constitution dealing with the SC’s jurisdiction.
The Supreme Court is not a trier of facts
There are important principles worthy of note in relation to the
jurisdiction of the Supreme Court.
The SC is not a trier of facts which means that passing
upon a factual issue is not within the province of the Court
(Romy’s Freight Service vs. Castro, 490 SCRA 160). The
findings of facts of the Court of Appeals are not generally
reviewable by the SC (Sarmiento vs. Yu 497 SCRA 513).
Also, factual findings of the trial court, particularly when
affirmed by the Court of Appeals, are generally binding on
the Court (Tan vs. GVT Engineering Services 498 SCRA 93;
Office of the Ombudsman vs. Lazar0-Baldazo GR No. 170815
February 2, 2007).
It is not the function of the SC to determine the weight of the
evidence supporting the assailed decision (JR Blanco vs.
Quasha 318 SCRA 373). However, factual issues may be
delved into and resolved where the findings and
conclusions of the trial court or the quasi-judicial bodies
are frontally inconsistent with the findings of the CA (Office
of the Ombudsman vs. Tongson 499 SCRA 567).
Exceptions
While it is settled rule that the SC in the exercise of its power of
review is not a trier of facts, jurisprudence has, however,
recognized several exceptions in which factual issues may be
resolved by the SC, namely:
a.) when the findings are grounded entirely on speculation,
surmises or conjectures;
b.) when the inference made is manifestly mistaken, absurd
or impossible;
c.) when there is grave abuse of discretion;
d.) when the judgment is based on a misapprehension of
facts;
e.) when the findings of facts are conflicting;
f.) when in making its findings the CA went beyond the
issues of the case, or its findings are contrary to
the admissions of both appellant and appellee;
g.) when the findings are contrary to the trial court;
h.) when the findings are conclusions without citation of
specific evidence on which they are based;
i.) when the facts set forth in the petition, as well as in the
petitioner’s main and reply briefs, are not
disputed by the respondent;
j.) when the findings of fact are premised on the supposed
absence of evidence and contradicted by the
evidence on record; and
k.) when the CA manifestly overlooked certain relevant
facts not disputed by the parties, which, if
properly considered, could justify a different
conclusion (Cristobal Cruz vs. Cristobal 498 SCRA
37; Heirs of Dicman vs. Carino 490 SCRA 240;
Safeguard Security Agency Inc. vs. Tangco 511
SCRA 67; De Los Santos vs. Elizalde 514 SCRA
14; NPC vs. De la Cruz GR No. 156093 Feb. 2,
2007; Spouses Yu vs. Ngo Yet Te GR No. 155868
Feb. 6, 2007).
JURISDICTION OF THE COURT OF APPEALS
BRIEF HISTORY OF THE COURT OF APPEALS
The jurisdiction of the CA is now governed by BP 129 or the
Judiciary Reorganization Act of 1980. BP 129 was passed in
1983 by the former Batasang Pambansa which practically
abolished all the regular courts at that time, and also the
special courts except the SC which cannot be abolished by
Congress. What was also spared was the Court of Tax Appeals
which was likewise not affected.
In lieu of these, other courts were created. The constitutionality
of BP 129 was challenged as violative of the security of tenure of
the judges. But its constitutionality was sustained in the case of
DELA LLANA vs. ALBA, 112 SCRA 294.
The CA is composed of over 69 justices after new divisions were
created, one based in Cebu City and the other in Cagayan de
Oro City pursuant to RA 8246.
They decide cases by a division of three. They sit en banc only
for administrative matters not to decide a case as it would be
impractical considering their number.
Before BP 129, the court was also called the “Court of Appeals,”
the counterpart of the present CA, though the CA now is
different and more powerful than the old one. BP 129 abolished
the old CA and created another court which was called the
INTERMEDIATE APPELLATE COURT (IAC).
So, from the 1983 to 1986, it was called the IAC. After the EDSA
Revolution, President Aquino, pursuant to her law-making
17
powers, issued E.O. #33 amending the Judiciary Law and
changed the name of IAC to CA (referring to the jurisdiction of
the IAC).
Many people thought that the CA of President Aquino under
E.O. #33 is actually the IAC under another name only, but in a
case decided by the SC, reported in
IN RE: LETTER OF ASSOCIATE JUSTICE REYNATO S. PUNO
– 210 SCRA 589 [1992]
HELD: “It is the holding of the Court that the present Court
of Appeals is a new entity, different and distinct from the
Court of Appeals or the Intermediate Appellate Court
existing prior to Executive Order No. 33, for it was created
in the wake of the massive reorganization launched by the
revolutionary government of Corazon C. Aquino in the
aftermath of the people power (EDSA) revolution in 1986.”
Section 5 of EO 33 also amended Sec. 9 of BP 129 to read as
follows:
“The Court of Appeals shall have the power to
receive evidence and perform any and all acts
necessary to resolve factual issues raised in (a)
cases falling within its original jurisdiction, such
as actions for annulment of judgments of regional
trial courts, as provided in paragraph (2) hereof;
and in (b) cases falling within its appellate
jurisdiction wherein a motion for new trial based
only on the ground of newly discovered evidence is
granted by it.”
So, Section 9 of BP 129, which defines the second highest court
of the land, has been amended by E.O. #33. In February 1995,
it was amended again by RA 7902, known as “The Act
expanding the
jurisdiction of the CA.”
RA 7902 restored the power of the CA to try cases and conduct
hearings, receive evidence, and perform any and all acts
necessary to resolve factual issues raised in cases falling within
the original and appellate jurisdiction, including the power to
grant new trials or further proceedings (without limiting the
motion for new trial based on newly discovered evidence). Trials
or hearings in the CA must be continuous and completed within
3 months unless extended by the Chief Justice.
The essential features of the CA’s jurisdiction are as
follows:
ORIGINAL JURISDICTION OF THE COURT OF APPEALS
Original Concurrent
[1] Section 9, paragraph 1, BP 129
Section 9 – Jurisdiction – The Court of Appeals shall
exercise:
(1) Original jurisdiction to issue writs of
mandamus, prohibition, certiorari, habeas
corpus, and quo warranto, and auxiliary writs
or processes whether or not in aid of its
appellate jurisdiction.
Note: Refer to discussion the original concurrent jurisdiction of
the SC with the CA; with the CA and RTC etc.
The cases where its original jurisdiction is CONCURRENT with
the SC are: petitions for the issuance of writs of certiorari,
prohibition, mandamus against the following:
• the CSC (RA No. 7902);
• Central Board of Assessment Appeals (PD No. 464; BP
Blg. 129; RA No. 7902);
• NLRC (St. Martin Funeral Homes vs. NLRC 295 SCRA
494; RA No. 7902) or the Secretary of Labor under the
Labor Code.
• Quasi-judicial agencies (BP Blg. 129; RA No. 7902; Heirs
of Hinog vs. Melicor, 455 SCRA 460)
• Also, issuance of writ of certiorari, prohibition and
mandamus against the RTC.
CONCURRENT with the SC and RTC are those involving habeas
corpus, quo warranto, and writs of certiorari, prohibition, and
mandamus against inferior courts and bodies (Secs. 9[1],
21[2]2, BP Blg. 129; Art. VIII Sec. 5, 1987 Constitution).
For example, a petition for mandamus against the MTC of Cebu
City can be filed with the SC, CA, or RTC although the policy of
the Supreme Court is that it should be filed with the RTC based
on the hierarchy of the courts. (Vergara vs. Suelto, 156 SCRA
758)
Q: Being concurrent, what will happen if such a case is filed
simultaneously in the CA and SC?
A: The consequence is found in Section 17 of the Interim Rules.
In other words, the Interim Rules are still intact.
Interim Rules, Sec. 17. Petitions for writs of certiorari,
etc. - No petition for certiorari, mandamus,
prohibition, habeas corpus or quo warranto may be
filed in the IAC if another similar petition has been
filed or is still pending in the SC. Nor may such
petition be filed in the SC if a similar petition has
been filed or is still pending in the IAC, unless it is
to review the action taken by the IAC on the
petition filed with it. A violation of this rule shall
constitute contempt of court and shall be a cause
for the summary dismissal of both petitions,
without prejudice to the taking of appropriate
action against the counsel or party concerned.
Original Exclusive
[2] Section 9, paragraph 2, BP 129
(2) “Exclusive” jurisdiction over actions
for annulment of judgments of Regional
Trial Courts;
Q: Actions for annulment of judgments of RTC’s, is this similar
to an appeal? Is this the same as appealing the decision of the
RTC to the CA?
A: No, because in appeal, you are invoking the appellate
jurisdiction of the CA. Here in paragraph 2, it is not appellate
but original jurisdiction. Meaning, you are filing an action
before the CA for the first time. And the nature of the action is
to annul a judgment of the RTC.
The implementation is found in Rule 47 of the Rules.
APPELLATE JURISDICTION OF THE COURT OF APPEALS
Paragraph 3, Sec. 9 of BP 129 defines the appellate jurisdiction
of the CA.
[3] Section 9, paragraph 3, BP 129
(3) Exclusive appellate jurisdiction over all
final judgments, decisions, resolutions,
orders or awards of the RTCs and
quasijudicial agencies, instrumentalities,
boards or commissions, including the
Securities and Exchange Commission, the
Social Security Commission, the
Employees Compensation Commission and
the Civil Service
Commission, except those falling within
the appellate jurisdiction of the SC in
accordance with the Constitution, the
Labor Code of the Philippines under PD
442, as amended, the provisions of this
Act, and of subparagraph
(1) of the third paragraph and
subparagraph (4) of the fourth paragraph
of Sec. 17 of the Judiciary Act of 1948.
Take note, the appellate jurisdiction of the CA is EXCLUSIVE.
Now, if you will analyze paragraph 3, you will notice that the CA
is a powerful court because it has exclusive appellate
jurisdiction over all final judgments, decisions, resolution,
orders or awards of RTC’s. So as a general rule, if the RTC,
anywhere in the country renders a decision and you want to
appeal, whether civil or criminal, chances are it will go the to
CA. It is a powerful court, because it covers all RTC’s and the
appellate jurisdiction is exclusive.
18
And not only RTC’s. The law says “and quasi-judicial agencies,
instrumentalities, boards or commissions…” Not only
decisions of the RTC but also of quasi-judicial agencies or
bodies, also called administrative bodies.
Administrative bodies are actually part of the executive branch
but they act just like courts of justice. They can decide cases
and there are hundreds of administrative agencies in the
Philippines. And therefore, if you lose a case before anyone of
these bodies, or tribunals, you appeal the decision not with the
SC, but to the CA.
The amendments by RA 7902 is even more specific by
adding this phrase, “including the SEC, SSS, the Employees
Compensation commission and the Civil Service
Commission (CSC).”
That is the addition.
CSC – Before this law was passed, under the Constitution,
decisions of the CSC are appealed to the SC together with the
COMELEC and the COA. But with the passage of RA 7902, the
appeal from the CSC has been transferred to the CA, so what is
left behind in the Constitution are the COMELEC and the COA.
Obviously, the purpose of this statute is to unburden the SC
with so many cases.
The phrase “except those falling within the appellate
jurisdiction of the Supreme Court…”means all cases should
be appealed to the CA except those which belong to the SC
under the
Constitution. We know that already.
And also “except those falling under the Labor Code of the
Philippines.”
A labor case is not supposed to be filed in court but with a
quasijudicial agency known as the NLRC and you start in the
local level – from the Labor Arbiter, then the decisions of the
Labor Arbiter are appealable to the NLRC and then from there,
where will you go?
Q: Is the decision of the NLRC appealable before the CA because
it is also a quasi-judicial agency and under the law, all
decisions of quasi-judicial agencies are supposed to be appealed
to the CA.
A: NO. The decision of the NLRC is an exception – except those
under the appellate jurisdiction of the SC under the
Constitution and in accordance with the Labor Code (PD 422).
NLRC decisions cannot be appealed to the CA and the only way
to elevate it is to the SC by what we call certiorari, not appeal.
(This is already modified in the St. Martin Funeral Homes
vs. NLRC case.) Also, decisions of the Secretary of Labor, under
the Labor Code are not reviewable by the CA, but they are
reviewable directly by the SC.
And then there is the phrase, "the provisions of this Act, and
of subparagraph (1) of the third paragraph and subparagraph
(4) of the fourth paragraph of Section 17 of the Judiciary
Act of 1948.”
So, the new Judiciary Law still makes some reference to the old
law. This shows that the entire 1948 Judiciary Law has not
been totally repealed. Some provisions are still intact because
of the reference.
Now what is this subparagraph 1 of the third paragraph?
It only applies to criminal cases. EXAMPLE: A person is
sentenced to reclusion perpetua, his co-accused is sentenced to
reclusion temporal or prison mayor, and all of them will appeal,
all of them should go to the SC. Otherwise, you will be splitting
the appeal into two parts. (Modified in the People vs Mateo
case as discussed in Criminal Procedure.)
Subparagraph 4 of the fourth paragraph of Section 17 refers
to appeal from the RTC on pure legal question which should
be filed with the SC.
Q: Suppose there are questions of fact, or it is an appeal on
questions of fact and questions of law?
A: Under the 1948 Judiciary Law, you cannot appeal directly to
the SC. You must appeal to the CA.
The same thing when the issue is on the constitutionality of a
treaty, law, legality of tax, when the jurisdiction of the lower
court is in issue, as explained here in this paragraph of the
Judiciary Act of 1948, if the appeal is 100% constitutional
issue, jurisdictional or legality issue – appeal is to the SC under
the Constitution. But if it is mixed with questions of fact, do
not go to the SC. You go first to the CA. That is what the
paragraph is all about.
Exclusive appellate jurisdiction
Exclusive appellate jurisdiction by way of ordinary appeal from
the RTC and the Family Courts (Sec. 9[3] BP Blg. 129).
Exclusive appellate jurisdiction by way of petition for review
from the RTC rendered by the RTC in the exercise of its
appellate jurisdiction (Sec. 22 BP Blg. 129; Rule 43, Rules of
Court; Sec. 9 BP Blg. 129)
Exclusive appellate jurisdiction by way of petition for review
from the decisions, resolutions or orders or awards of the CSC,
Central Board of Assessment Appeals and other bodies
mentioned in Rule 43 (Sec. 9[3]), BP Blg. 129) and of the Office
of the Ombudsman in administrative disciplinary cases
(Enemecio vs. Office of the Ombudsman 419 SCRA 82; Gonzales
vs. Rosas 423 SCRA 488).
Note that under RA No. 9282, the judgments AND FINAL
ORDERS OF THE Court of Tax Appeals are no longer appealable
by way of petition for review to the CA. Judgments of the CTA
rendered en banc are appealable to the SC by way of Rule 45
(Sec. 11 RA No. 9282)
Exclusive appellate jurisdiction over decisions of MTCs in
cadastral or land registration cases pursuant to its delegated
jurisdiction (Sec. 34 BP Blg. 129 as amended by RA No. 7691).
This is because decisions of MTCs in these cases cases are
appealable in the same manner as decisions of RTCs (Sec. 34
BP Blg. 129).
Power to try and conduct hearings
[4] Section 9, last paragraph, BP 129:
The Court of Appeals shall have the power
to try cases and conduct hearings, receive
evidence and perform any and all acts
necessary to resolve factual issues raised in
cases falling within its original and
appellate jurisdiction, including the power
to grant and conduct new trials or further
proceedings. Trials or hearings in the CA
must be continuous and must be completed
within three (3) months unless extended by
the Chief Justice. (As amended by RA 7902)
Even if the CA is not a trial court, under the law it has the
power to try cases and conduct hearings, receive evidence and
perform any and all acts necessary to resolve factual issues in
cases falling within its original and appellate jurisdiction,
including the power to grant and conduct new trials or further
proceedings (Sec. 9 [3], BP 129 as amended by RA 7902). The
CA may pass upon factual issues as when a petition for
certiorari is filed before it (Alcazaren vs. Univet Agricultural
Products, Inc. 475 SCRA 636).
This paragraph shows that the present CA is a more powerful
court than before. It is a unique court. Aside from being an
appellate court, it also acts as a trial court. It may receive
evidence but only those evidence which were overlooked by the
trial court. It can order a new trial or conduct a new trial itself.
The CA may pass upon factual issues as when a petition for
certiorari is filed before it(Alcazaren vs. Univet Agricultural
Products, Inc. 475 SCRA 636) or in petitions for writ of amparo
or habeas corpus data or in case of actions to annul judgment
of the RTC over which the CA has original jurisdiction (Bar
2008).
Q: If an issue of fact is tried before the RTC, can I always ask
the CA to allow me to present evidence? Does it mean to say
19
now that since the CA is a very powerful court, it can take the
place of the RTC? A: That is already interpreted in the case of
LINGER AND FISHER vs. INTERMEDIATE APPELLATE
COURT –
125 SCRA 522 [1983]
HELD: The power of the CA to receive evidence refers only
to incidental facts which were not 100 percent touched
upon, or matters which were simply overlooked by the trial
court. You cannot opt not to present evidence before the
RTC. It only refers to incidental facts.
“Evidence necessary in regards to factual issues raised in
cases falling within the Appellate Court’s original and
appellate jurisdiction contemplates ‘incidental’ facts which
were not touched upon, or fully heard by the trial or
respondent Court. The law could not have intended that the
Appellate Court would hold an original and full trial of a
main factual issue in a case, which properly pertains to
Trial Courts.”
JURISDICTION OF THE
REGIONAL TRIAL COURTS
Q: How many RTC’s are there in the Philippines?
BP 129 Section 13 (1) Creation of Regional
Trial Courts – There are hereby created
thirteen (13) Regional Trial Courts, one for
each of the following regions: x x
So the Judiciary law has divided the country into 13 areas
called JUDICIAL REGIONS. From the 1st to the 12th, the 13th
is actually in the National Capital Region (NCR), Metro Manila.
Every division is divided into branches.
Every RTC judge is appointed to a region which shall be his
permanent station, and his appointment states the branch of
the court and seat to which he shall be originally assigned.
However, the SC may assign temporarily an RTC judge to
another region as public interest may require, provided that
such temporary assignment shall not last longer than 6 months
without the consent of the RTC judge concerned.
The SC shall define the territory over which a branch of the RTC
shall exercise his authority. The law provides:
BP 129, Section 18. Authority to define
territory appurtenant to each branch – The
Supreme Court shall define the territory
over which a branch of the Regional Trial
Court shall exercise its authority. The
territory thus defined shall be deemed to
be the territorial area of the branch
concerned for purposes of determining the
venue of all suits, proceedings or actions,
whether civil or criminal, as well as
determining the Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal
Circuit Trial Courts over which the said
branch may exercise appellate
jurisdiction. The power herein granted
shall be exercised with a view to making
the courts readily accessible to the people
of the different parts of the region and
making the attendance of litigants and
witness as inexpensive as possible.
Though RTC Cebu City is found in the 7 th Judicial Region,
which includes Cebu, Bohol, Negros Oriental and Siquijor
province, its territorial area is not the entire region, (7 th Judicial
Region), where it belongs or even the entire province of Cebu or
limited to Cebu City only because it depends on the territory as
defined by the SC.
Now, the law says, the SC has the power to define the area of its
branch for purposes of supervising that area and the MTC
there. Now, as early as 1983, the SC has already come out with
the administrative order defining the area of responsibility of
each branch throughout the Philippines.
 Interim Rules, Sec. 2. Territorial Jurisdiction of
Courts. -
a) MetTCs, MTCs and MCTCs shall exercise
their jurisdiction in the city, municipality
or circuit for which the judge thereof is
appointed or designated.
b) A Regional Trial Court shall exercise its
jurisdiction within the area defined by the
SC as the territory over which the
particular branch concerned shall exercise
its authority, in accordance with Sec. 18 of
BP 129.
Jurisdiction of the RTC
EXCLUSIVE ORIGINAL JURISDICTION– Note Section 19 was
amended by RA 7691, effective April 15, 1994 and entitled “An
Act Expanding the Jurisdiction of the Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Courts”.
CONCURRENT ORIGINAL JURISDICTION with other courts –
Section 21
APPELLATE JURISDICTION – Section 22
EXCLUSIVE ORIGINAL JURISDICTION OF THE
RTC
Sec. 19 Jurisdiction in civil cases – Regional Trial
Courts shall exercise exclusive original
jurisdiction:
[1] In all civil actions in which the subject
of the litigation is incapable of pecuniary
estimation.
What does incapable of pecuniary estimation mean?
In an action incapable of pecuniary estimation, the basic issue
is one other than the recovery of a sum of money. If ever there is
a claim for money, it should only be incidental to the main
issue.
Where the action is principally the recovery of a sum of money,
the action is one capable of pecuniary estimation and
jurisdiction would then depend on the amount of the claim
exclusive of interest, damages of whatever kind, attorneys fees,
litigation expenses and costs. (Raymundo vs. CA, 213 SCRA 457
[1992]; Singsong vs. Isabela Sawmill, 88 SCRA 623 [1979])
The basic issue in an action incapable of pecuniary estimation
is one other than the recovery of money. In this kind of action
the money claim is merely incidental (ibid)
How to determine whether the action is capable or
incapable of pecuniary estimation-
“In determining whether an action is one the subject matter of
which is not capable of pecuniary estimation, this Court has
adopted the criterion of first ascertaining the nature of the
principal action or remedy sought. If it is primarily for the
recovery of a sum of money, the claim is considered capable of
pecuniary estimation and whether jurisdiction is in the MTCs or
the CFIs would depend on the amount of the claim. However,
where the basic issue is something other than the right to
recover a sum of money, where the money claim is purely
incidental to, or a consequence of, the principal relief sought,
this Court has considered such actions as cases where the
subject of the litigation may not be estimated in terms of money,
and are cognizable exclusively by the CFI.”
Examples: of actions incapable of pecuniary estimation are
those for specific performance, support, or foreclosure of
mortgage or annulment of judgment, also actions questioning
the validity of a mortgage, annulling a deed of sale or
conveyance and to recover the price paid and for rescission
20
which is a counterpart of specific performance. (Russel vs.
Vestil, 304 SCRA, 739, 744-745 [1999])
Such ruling was, however, modified in Go vs. UCPB, GR No.
156182 Nov. 11, 2004 where the court declared the following as
real actions:
1) judicial foreclosure of real estate mortgage;
2) actions to annul real estate mortgage;
for the reason that a real estate mortgage is a real right as well
as a real property. So an action to cancel or annul a real estate
mortgage necessarily affects title to the real property, hence a
real action and jurisdiction is determined by the assessed value
of the property.
A complaint for expropriation is incapable of pecuniary
estimation (Barangay San Roque vs. Heirs of Pastor, 334 SCRA
127).
An action seeking to annul a resolution of a government-owned
and controlled corporation is an action incapable of pecuniary
estimation (Polomolok Water District vs. Polomolok General
Consumers Association GR No. 162124, October 19, 2007).
An action to annul a Deed of Declaration of Heirs and for a
partition of land with an assessed value of P5,000.00 is an
action incapable of pecuniary estimation where the partition
aspect is only incidental to the action for annulment (Russel vs.
Vestil 304 SCRA 739).
An action for partition of a real property located in Taytay Rizal
and with an assessed value of P20,000.00, the resolution of
which involves the determination of hereditary rights, is an
action incapable of pecuniary estimation and thus, should be
filed in the RTC (Suggested answer UP Law Center Bar 2000)
Note: This answer could also be subject to an alternative
answer, when it is argued that an action for partition is one
which involves interest in real property. Hence, jurisdiction
would be dependent on the assessed value of the property.
An action for specific performance to compel the defendant to
execute a deed of conveyance covering a parcel of land with an
assessed value of P19,000.00 is an action incapable of
pecuniary estimation because the main issue is whether or not
there is a right to compel specific performance (Suggested
answer, UP Law Center Bar 2000). Note: This answer is subject
to an alternative answer which asserts that where the primary
purpose of the action is to recover or obtain ownership of the
real property, the action is one affecting title to real property
and is, therefore, a real action. In a real action, jurisdiction is
determined by the assessed value of the property.
An action for specific performance is one generally considered
incapable of pecuniary estimation (Russel vs. Vestil, supra).
The amount of damages that may be claimed in addition to the
prayer for specific performance is not determinative of
jurisdiction. Thus, an action for specific performance and
damages of P200,000.00 is cognizable by the RTC even if the
amount of damages sought to be recovered is within the
jurisdiction of the MTC.
Where, however, the demand is in the alternative, as in an
action to compel the defendant to deliver the house by
completing its construction or to pay the sum of P644.31, the
action is one that is capable of pecuniary estimation (Cruz vs.
Tan 87 Phil. 627). Thus an action for specific performance or in
a the alternative, for damages in the amount of P180,000.00 is
one capable of pecuniary estimation. Here, the amount of
damages is determinative of jurisdiction (Bar 1997).
If as gleaned from the complaint, the principal relief sought by
the complaint is for the court to issue an injunction against the
adverse party and his representatives to permanently enjoin
them from preventing the survey of the subject land, the
complaint is not a possessory action but one for injunction. As
such, the subject matter of litigation is incapable of pecuniary
estimation and properly cognizable exclusively by the RTC
under Sec. 19(1) of BP Blg. 129, as amended by RA No. 7691
(Bokingo vs. CA 489 SCRA 521).
An action for injunction is within the jurisdiction of the RTC
being an action incapable of pecuniary estimation. (Bar 1997).
An action for replevin of a motorcycle valued at P150,000.00 is
capable of pecuniary estimation. The basis of jurisdiction is the
value of the personal property sought to be recovered. The
amount of P150,000.00 falls within the jurisdiction of the MTC.
(Bar 1997).
An action for interpleader is capable of pecuniary estimation. If
the subject of interpleader is real property, then the
jurisdictional amount is determined by the assessed value of the
land. If it be personal property, then the value of the property.
Hence, an action of interpleader to determine who between the
defendants is entitled to receive the amount of P190,000.00
from the plaintiff is within the jurisdiction of the MTC (Bar
1997; Makati Development Corporation vs. Tanjuatco 27 SCRA
401).
[2] In all civil actions which involve the
title to, or possession of, real property or
any interest therein, where the assessed
value of the property involved exceeds
P20,000 or for civil actions in Metro
Manila, where such value exceeds P50,000
except actions for forcible entry into and
unlawful detainer of lands and buildings;
original jurisdiction over which is
conferred upon the Metropolitan Trial
Courts, Municipal Circuit Trial Courts;
So in all real actions outside of forcible entry and unlawful
detainer, jurisdiction is determined by the assessed value of the
real property subject thereof.
What is a real action?
It is one affecting title to or possession of real property, or
interest therein. (Sec. 1, Rule 4)
Examples: would be accion publiciana (an action to recover
possession of real property), accion reinvidicatoria (action to
recover ownership of real property), quieting of title, provided
the assessed value of the property exceeds P20,000.00.
So, for a lesser value, MTC has jurisdiction. This is why MTCs
now have jurisdiction over accion publiciana when the value of
the property is P20,000 or less.
In forcible entry and unlawful detainer, jurisdiction lies with the
MTC regardless of the assessed value.
Now, if in Metro Manila, the value is P50,000.
[3] In all civil actions in admiralty and
maritime jurisdiction where the demand or
claim exceeds One Hundred Thousand
pesos (P100,00.00) [now PhP 300,000.00]
or, in Metro Manila, where such demand or
claim exceeds Two Hundred Thousand
pesos
(P200,000.00)[now, PhP 400,000].
EXAMPLE: The shipper will ship to you goods involving a
common carrier and while in transit, the goods are lost or they
are totally damaged. You would like to file a claim or a case
against the carrier, what kind of a case is it? That is an
admiralty or maritime case.
Q: In which court will you file it?
A: It depends on how much is your claim. If your claim of the
damaged or lost cargo exceeds P300,000, then, RTC; if it is
P300,000 or less, MTC. In Metro Manila, the jurisdictional
amount is higher – it should be over P400,000.
RA 7691, Sec. 5. After five (5) years from
the effectivity of this Act, the jurisdictional
amounts mentioned in Sec. 19(3), (4), and
(8); and Sec. 33(1) of Batas Pambansa Blg.
129 as amended by this Act, shall be
adjusted to Two hundred thousand pesos
(P200,000.00). Five (5) years thereafter,
such jurisdictional amounts shall be
adjusted further to Three hundred
thousand pesos (P300,000.00): Provided,
however, That in the case of Metro Manila,
the abovementioned jurisdictional amounts
21
shall be adjusted after five (5) years from
the effectivity of this Act to Four hundred
thousand pesos (P400,000,00).
[4] In all matters of probate, both testate
and intestate, where the gross value of the
estate exceeds One Hundred Thousand
pesos (P100,000.00) [now php300,000] or,
in probate matters in Metro Manila, where
such gross value exceeds Two Hundred
Thousand pesos (P200,000.00) [now
P400,000].
In the subject of Wills and Succession, when a person dies, his
estate, his property will be settled for the benefit of his creditors
and heirs. That is what you call either as testate or intestate
proceedings depending on whether the deceased left a will or
none.
If there are debts due the decedent, thus, payable by his/her
estate, settlement would mean liquidation, which includes
inventory of all the assets and obligations payable, payment of
the debts, then distribution of the residue to the heirs. This is
done by the court thru an administrator appointed by it or thru
the executor appointed by the decedent.
Q: Where should the estate of the deceased person be settled,
RTC or MTC?
A: It depends on how much is the gross value of his estate. If it
exceeds P300,000, RTC. If it is P300,000 or less, it should be
with the MTC. In Metro Manila again, the gross should be more
than P400,000.
The jurisdiction of the court as a probate or intestate court
relates only to matters having to do with the settlement of the
estate and probate of the will of the decedent but does not
extend to the determination of questions of ownership that arise
during the proceedings.
[5] In all actions involving the contract of
marriage and marital relations.
Most of these cases are under the Family Code and now fall
under the jurisdiction of family courts (RA 8369, The Family
Courts Act of 1997). But because family courts have not yet
been constituted, the SC has designated RTCs to take
cognizance of such cases.
Q: What are the possible actions which you can imagine
involving the contract of marriage and marital relations?
A: Annulment of marriage, legal separation, declaration of
nullity, dissolution of the absolute community of husband and
wife, and action for support.
RA 8369, SECTION 5.Jurisdiction of Family
Courts. — The Family Courts shall have
exclusive original jurisdiction to hear and
decide the following cases:
xxxxxx
d) Complaints for annulment of marriage,
declaration of nullity of marriage and those
relating to marital status and property relations
of husband and wife or those living together
under different status and
agreements, and petitions for dissolution of
conjugal partnership of gains;
xxxxxx
No. 6 will be discussed later.
[7] In all civil actions and special
proceedings falling within the exclusive
original jurisdiction of a Juvenile and
Domestic Relations Court and of the
Court of Agrarian Relations as now
provided by law;
Before BP 129 or before 1980, there were special courts existing.
Among these courts were the so called Juvenile and Domestic
Relations Courts (JDRC). Then you have the Court of Agrarian
Relations (CAR) which tried cases involving tenancy,
agricultural lessor, agricultural lessee, agricultural lands.
When BP 129 was enacted, the CAR and the JDRCs were
abolished together with the other courts created by law. Cases
which they used to handle were automatically transferred to the
RTC. That was after BP 129 took effect.
What were the cases which were usually falling within the
original jurisdiction of the former JDRC?
Usually, those involving family and children, like support filed
by the child against his father, compulsory recognition, custody
of children, adoption proceedings.
Under BP 129, all of these are now within the jurisdiction of
RTC.
HOWEVER, this has been amended again by RA 8369 (Family
Courts Act of 1997) and these cases are now under the
jurisdiction of the FAMILY COURTS: (See Sections 5 [b], [c], [e],
[g])
RA 8369, SECTION 5.Jurisdiction of
Family Courts. — The Family Courts shall
have exclusive original jurisdiction to hear
and decide the following cases:
xxxx
b) Petitions for guardianship, custody of children,
habeas corpus in relation to the
latter;
c) Petitions for adoption of children and the
revocation thereof;
xxxx
g) Petitions for declaration of status of
children as abandoned, dependent or
neglected children, petitions for voluntary
or involuntary commitment of children;
the suspension, termination, or restoration
of parental authority and other cases
cognizable under Presidential Decree No.
603, Executive Order No. 56, (Series of
1986), and other related laws;
xxxxx
As regards the law transferring the jurisdiction of the CAR to the
RTC, it became partially obsolete with the enactment of the
Comprehensive Agrarian Reform Law (CARL) or RA 6657 (June
15, 1988). Under the CARL, all agrarian disputes between
landlord and tenant, lessor and lessee were transferred to the
DAR particularly the DAR Adjudication Board (DARAB), making
them quasi-judicial cases. So, from CAR to RTC, from RTC to
DARAB
So the RTC has NO jurisdiction, EXCEPT in the following 2
cases QUISMUNDO vs. COURT OF APPEALS - 201 SCRA 609
[1991]
HELD: “Wth the enactment of Executive Order No.
229, which took effect on August 29, 1987, the
Regional Trial Courts were divested of their general
jurisdiction to try agrarian reform matters. The said
jurisdiction is now vested in the Department of
Agrarian Reform. Said provisions thus delimit the
jurisdiction of the regional trial courts in agrarian
cases only to two instances:
1. petitions for the determination of just compensation to
landowners; and
2. prosecution of criminal offenses under said Act.
EXAMPLE: If you are a landowner and your agricultural land is
placed under the CARP coverage, the government will fix the
payment for you. The trouble is that you did not agree on the
amount of payment. You want to contest the amount of
compensation payable, in which court will you file your action?
22
A: RTC and you ask for higher compensation.
[8] In all cases in which the demand,
exclusive of interest, damages of whatever
kind, attorney’s fees, litigation expenses,
and costs or the value of the property in
controversy exceeds One Hundred
Thousand pesos (P100,000.00) [now
P300,000] or, in such other cases in Metro
Manila, where the demand, exclusive of
the above-mentioned items exceeds Two
Hundred Thousand pesos
(P200,000.00)[now P400,000]
The best example is money claim. Most cases which go to court
now are money claims – an action to collect sum of money.
Q: Unpaid loan – you would like to collect an unpaid loan of
your debtor. Where will you file your case?
A: It depends on how much are you collecting. If it is over
P300,000 outside Metro Manila – RTC, in Metro Manila, –
P400,000. If the amount that you are collecting is only
P300,000 or less obviously, you file your case in the MTC.
If the value of the claim is > P300,000 – RTC
If the value of the claim is = or < P300,000 – MTC
Q: Suppose the principal amount that you borrowed from me is
P300,000, the interest is P30,000. And you are collecting
P10,000 for moral damages, another P10,000 for expense of
litigation, etc. So my total claim is P350,000. Where will I file
the case?
A: MTC. In determining the jurisdictional limit of P300,000, do
not include the interest, damages, attorney’s fees, etc. So you
deduct those from the principal claim even if you put them in
your complaint because the law says, “xxx exclusive of interest,
damages of whatever kind, attorney’s fees, litigation expenses,
and costs xxx.”
Q: What are litigation expenses and costs?
A: Costs are not the same as attorney’s fees and litigation
expenses. Actually, attorney’s fees and litigation expenses are
part of damages. Costs are governed by Rule 141, while
attorney’s fees and litigation expenses are governed by the Civil
Code.
ACTIONS PURELY FOR DAMAGES
SITUATION: Suppose the action is purely for damages, like
breach of contract of carriage. Instead of bringing you to your
destination, you ended up in the hospital. You now sue the
common carrier for damages and your claim is P1 million for
injuries, moral, exemplary, etc. Where will you file the case?
This question has been clarified by SC Circular No. 09-94:
“Guidelines in the Implementation of RA 7691 Extending the
Jurisdiction of the MTCs” where the SC said that the provision
excluding damages applies only if the damages are INCIDENTAL
to the action. If the main cause of action is 100% damages, you
include it in determining tire P300,000 jurisdictional limit of the
MTC.
EXAMPLE: Ms. Pastor rode on a PAL fight. The plane crashed
but she survived. She claims for damages for breach of contract
of carriage amounting to P1 million.
Q: Where will she file her case?
A: RTC because the amount of the claim for damages exceeded
P300,000. Since the case is purely for damages, it is included in
determining the jurisdiction of the court.
The rule is, you only exclude the damages if it is a secondary
claim. But if damages is the primary or only claim, you
determine whether the total claim for damages is above
P300,000, or equal to or less than P300,000.
The SC said in this Circular, “the exclusive damages of whatever
kind” in determining the jurisdiction under Section 19
paragraph [8] applies to cases where the damages are merely
incidental to or a consequence of the main cause of action.
However, if the claim for damages is the main cause of action,
the amount of such claim should be considered in determining
the jurisdiction.
EXAMPLE: P will file a case against D to recover a piece of land
worth P20,000.00 only. But her claim for damages exceeds
P300,000.
Q: In what court will P file a civil case where she wants to
recover a piece of land with value of only P20,000?
A: MTC because of paragraph [2]. As regards the damages of
P300,000.00, MTC still has jurisdiction because such damages,
being incidental, is not included in determining the jurisdiction
of the RTC.
Now, the law says, “exclusive of interest, damages of whatever
kind, attorney’s fees, litigation expenses, and costs or THE
VALUE OF THE PROPERTY IN CONTROVERSY exceeds
P300,000….”
Q: What is the property in controversy?
A: Obviously here, the property is PERSONAL PROPERTY not
real. If the property sought to be recovered is real, apply
paragraph [2] of Section 19 on recovery of real property.
Q: You want to recover your car which your friend borrowed but
did not return, which court has jurisdiction?
A: MTC if the value is P300,000.00 or less, and RTC, if over.
Q: Who shall determine the value or how should the value be
determined?
A: In determining the jurisdiction of the court, over the subject
matter, the allegations in the complaint governs.
Let us go to some interesting cases on this provision.
ORTIGAS AND CO., LTD PARTNERSHIP vs. HERRERA - 120
SCRA 89 [1983]
FACTS: A entered into an agreement with B where A
deposited the sum of P50,000 with B. After certain
conditions are complied B has to return the amount to A.
According to A the conditions are already complied with but
B still refuses to return the money. So A filed a complaint
which he denominated as sum of money and since he is
only asking for the return of P50,000, A filed the case in the
MTC.
ISSUE #1: Whether or not the MTC has jurisdiction over the
case.
HELD: The MTC has NO jurisdiction. It should be filed in
the RTC. It is not an action to collect a loan. You are not
recovering a loan. You are compelling him to comply with
the agreement – to return the money after certain
conditions are complied with. You are trying to enforce your
agreement. therefore your action is an action for SPECIFIC
PERFORMANCE which should be tried by the RTC under
paragraph [1].
“When a party to a contract has agreed to refund to the
other party a sum of money upon compliance by the latter
of certain conditions and only upon compliance therewith
may what is legally due him under the written contract be
demanded, the action is one not capable of pecuniary
estimation.” So it is cognizable by the RTC.
ISSUE #2: But according to the plaintiff, when he filed the
complaint, it is entitled “for sum of money” which should
fall under paragraph [8]. Is the plaintiff correct?
HELD: NO. The plaintiff is wrong. The title of the action is
not determinative on the court. Just like the rule on
contracts where the nature of the contract is not determined
by the title but by stipulation.
23
“The factual allegations in the complaint seeking for the
performance of an obligation of a written contract which is a
matter clearly incapable of pecuniary estimation prevail over
the designation of the complaint as one for the sum of
money and damages.”
As may be seen from the foregoing enumeration, jurisdiction
is determined:
(1) by the nature of the action; or
(2) by the value of the demand; or
(3) by the value of the property involved.
[6] In all cases not within the exclusive
jurisdiction of any court, tribunal, person
or body exercising judicial or quasi-judicial
functions
Practically, this makes the RTC the universal catcher – what
does not belong to any other court, belongs to the RTC. That’s
what this provision is saying.
That is why, because of this, there are problems reaching the
SC on jurisdiction – whether a case belongs to this, to the
regular court or to a special quasi-judicial body. And we are
going to go over some of these cases.
SANDOVAL vs. CANEBA - 190 SCRA 77 [1990]
FACTS: The quarrel in this case involves the owner of the
subdivision and the buyer. Later on, the buyer refused to
pay the unpaid installments. The subdivision developer filed
a case for the collection of unpaid installments over the
subdivision lots.
HELD: The regular courts have no jurisdiction. That should
be decided by the Housing and Land Use Regulatory Board
(HLURB) formerly known as NHA. Under PD 957, it is the
HLURB not the RTC or MTC which has the jurisdiction to
hear a case involving non-payment of installments over
subdivision lots.
The counterpart of this case was the case of
CT TORRES ENTERPRISES, INC. vs. HIBIONADA – 191
SCRA
268 [1990]
FACTS: This is also the case between the buyers of a
subdivision lot against the subdivision developer. Only this
time it is the subdivision lot buyers who are suing the
developer of the subdivision. The subdivision lot owners
filed against the subdivision developer for not maintaining
properly the roads of the subdivision. So they filed a case
for specific performance with damages to compel the
developer to comply with the contract to maintain the
roads.
HELD: The jurisdiction is with the HLURB and not with the
regular courts. But according to the plaintiff “But I’m also
claiming for damages so that it should be filed before the
regular courts. How can the HLURB award damages? Only
the regular courts can award the damages.” Can the HLURB
award damages? According to the SC:
“The argument that only courts of justice can adjudicate
claims resoluble under the provisions of the Civil Code is
out of step with the fast-changing times. There are
hundreds of administrative bodies now performing this
function by virtue of a valid authorization from the
legislature. This quasi-judicial function, as it is called, is
exercised by them as an incident of the principal power
entrusted to them of regulating certain activities falling
under their particular expertise.”
So quasi-judicial bodies are now authorized to award damages.
As a matter of fact in Labor Relations, the question is asked
whether the NLRC is authorized to grant damages also to an
employee, moral and exemplary, which normally is only
awarded by courts. The Labor Code says yes. In other words,
even damages now can be awarded by administrative bodies
such as NLRC.
FAJARDO vs. BAUTISTA – 232 SCRA 291 [1994]
FACTS: Isabelo and Marita Jareno are the owners and
developers of a subdivision. Fajardo and others, as buyers,
signed separate contracts each designated a contract to sell
under which for consideration therein stated, the Jarenos
bound themselves to sell to Fajardo et al the lot subject
thereof, and after the latter shall have paid the purchase
price and interest shall execute in favor of Fajardo et al the
corresponding deeds of sale.
When these contracts to sell are still ongoing the Jarenos
sold these lots to other buyers and the title was transferred
to the second buyer. So when Fajardo et al learned about it,
they filed separate complaints with the RTC for annulment
of the sale to the other buyers.
Now, according to Fajardo, the jurisdiction of the case
belongs to the RTC and not with the HLURB because the
titles of the lots are transferred to the other buyers. It is no
longer under the name of Jareno. Secondly, their action is
for the annulment of title to a third person. Thirdly, these
third persons are not the developers; fourthly, under the
Judiciary Law, actions involving title to a real property are
to be tried by the RTC.
HELD: The RTC still has NO jurisdiction because the case
involved unsound real estate business practice on the part of
the subdivision owners and developers. Under the law,
unsound real estate business practice is under the HLURB. The
practice in the case is not a sound real estate business – I am a
developer, I enter into a contract with you and then later on I
sold the contract to a third person, that is unsound!
“By virtue of P.D. 1344, the HLURB has the exclusive
jurisdiction to hear and decide the matter. In addition to
involving unsound real estate business practices, the
complaints also involve specific performance of the
contractual and statutory obligations of the owners or
developers of the subdivision.” So it is still with the HLURB
and not with the regular courts.
BENGUET CORPORATION vs. LEVISTE – 204 SCRA 99
[1991]
FACTS: A mining company entered into an operations
agreement for management with another mining company.
Then later on, one wants to file a case for rescission of the
agreement for one reason or another. So it was filed with the
RTC.
HELD: The RTC has NO jurisdiction again because PD
1281 vested with the Bureau of Mines with
jurisdictional supervision and control over all issues on
mining claims and that the Bureau of Mines shall have
the original exclusive jurisdiction to hear and decide
cases involving the cancellation and enforcement of
mining contracts.
The trend is to make the adjudication of mining cases a purely
administrative matter. Another case is the case of
MACHETE vs. COURT OF APPEALS - 250 SCRA 176 [1995]
FACTS: This case involves the collection by the landowner of
unpaid back rentals from his leasehold tenants. The landowner
filed the money claims before the RTC.
HELD: The RTC has no jurisdiction over cases for collection
of back rentals for the leasehold tenants. This is an
agrarian dispute which exclusively cognizable by the
DARAB.
“The failure of petitioners to pay back rentals pursuant to the
leasehold contract with landowner is an issue which is clearly
beyond the legal competence of the trial court to resolve. The
doctrine of primary jurisdiction does not warrant a court to
arrogate unto itself the authority to resolve a controversy the
jurisdiction over which is initially lodged
with an administrative body of special competence.”
24
Let’s go to Professional Regulation Commission (PRC). That is
the government body which administers all government
examination for professionals except members of the law
profession. Now, this is what happened in the case of
LUPANGCO ET AL vs. COURT OF APPEALS - 160 SCRA 848
[1988]
FACTS: Lupangco et al were BS Accounting graduates and
reviewing to take the CPA exams in 1985.
There were some anomalies (leakages) in the 1985 CPA
Board Examination. By next year, the PRC passed a
resolution prohibiting CPA examinees to attend review
classes or conferences because of leakages. They are
prohibited from receiving any handouts, review materials or
any tip from any school, college or university. That was
Resolution No. 105 of the PRC.
So petitioners Lupangco et al, all CPA reviewers filed an
injunction suit against the PRC and to declare the
resolution unconstitutional. They filed it with the RTC. The
PRC moved to dismiss alleging that the RTC has no
jurisdiction over the case because the one which has the
jurisdiction is the CA – exclusive jurisdiction to review any
decision, order, ruling or- resolution of any quasi-judicial
body. And the PRC is a quasijudicial body. So their
resolution can only be questioned before the CA and not
with the RTC.
HELD: The PRC is WRONG because PRC is not only a
quasijudicial body, it is also a quasi-legislative body. It also
acts as legislative body by issuing rules and regulations.
Now, what kind of resolution is being questioned here? It is
a resolution pursuant to its purely administrative function.
It is a measure to preserve the integrity of licensure
examination. Therefore, it does not belong to the CA. It is
not the type of resolution contemplated by Section 9.
“The authority of the CA to review all resolutions of all
quasijudicial bodies pursuant to the law does not cover
rules and regulations of general applicability issued by the
administrative body to implement its purely administrative
policies and functions like Resolution No. 105 which was
adopted by the PRC as a measure to preserve the integrity
of licensure examinations.” So that is not the resolution
reviewable by the CA.
Now, under what provision under Section 19 can we justify
the jurisdiction of the RTC in the case. The SC said: It is
under paragraph 1 where the case is incapable of pecuniary
estimation or, it may fall under paragraph 6 where the case
is not within the exclusive jurisdiction by any court,
tribunal or- body exercising Judicial or quasi-judicial
functions.
So, if it is not reviewable by the CA, in what court can you
question the resolution? Definitely, not the CA, definitely not
the SC. I don’t think it’s with the NLRC. So it will fall under the
jurisdiction of the RTC. Or, it can also fall under paragraph [1,]
where the subject matter of the suit is not capable of pecuniary
estimation because what is the nature of the demands is to
declare unconstitutional this resolution. So it belongs to the
jurisdiction of the RTC.
BERNARDO vs. CALTEX PHIL. INC. - 216 SCRA 170 [1992]
FACTS: Under E.O. No. 172, when there is a dispute
between an operator or dealer and an Oil company
regarding dealership agreement, the case shall be under the
jurisdiction of the Energy Regulatory Board (ERB). So any
dispute regarding their relationship agreement except
disputes arising out of the relationship as debtor and
creditor. So if the dispute arose out of the relationship as
debtor and creditor, it should be filed with the RTC.
Now what happened here is that on December 5, 1990,
Bernardo, a dealer of Caltex, ordered gasoline from Caltex.
So he ordered in the morning. At 6:00 at night on the same
day, there was a price increase. So when the gasoline was
delivered the following day, Caltex charged Bernardo for the
increased price. Bernardo refused to pay and he filed a case
before the RTC. Caltex argued that the case should be filed
with the ERB.
HELD: The RTC has jurisdiction because “a contract of sale
of petroleum products was here perfected between Caltex
and its operator/dealer Bernardo; that in virtue of the
payment admittedly made by Bernardo, Caltex became a
“debtor” to him in the sense that it was obligated to make
delivery to Bernardo of the petroleum products ordered by
him; and that the only issue is the manner by which Caltex
shall perform its commitment in Bernardo’s favor. It is
rather one cognizable by the Regional Trial Court, as a
dispute indeed ‘arising out of their relationship as debtor
and creditor.’”
“What the controversy is all about, to repeat, is simply the
prices at which the petroleum products shall be deemed to
have been purchased from Caltex by Bernardo in December
5, 1990. This is obviously a civil law question, one
determinable according to the provisions of the Civil Code
and hence, beyond the cognizance of the Energy Regulatory
Board.”
Lack of Jurisdiction by RTC on Customs Matters
The RTC is devoid of any competence to pass upon the validity
or regularity of seizure and forfeiture proceedings conducted by
the Bureau of Customs, and to enjoin or otherwise interfere
with the said proceedings even if the seizure was illegal. Such
act does not deprive the Bureau of Customs of jurisdiction
thereon. (RV Marzan Freight, Inc. v. CA, 424 SCRA 596)
The Court held that the Trial court was incompetent to pass
upon and nullify: (1) the seizure of the cargo in the
abandonment proceedings, and (2) the declaration made by the
District Collector of Customs that the cargo was abandoned and
ipso facto owned by the government. It, likewise, has no
jurisdiction to resolve the issue of whether or not the private
respondent was the owner of the cargo before it was gutted by
fire. The trial court should have rendered judgment dismissing
the complaint, without prejudice to the right of the private
respondent to ventilate the issue before the Commissioner of
Customs and/or to the CTA as provided for in the Tariff and
Customs Code.
Disputed Assessments
The CTA has jurisdiction over disputed assessments, and the
ordinary courts over non-disputed ones. Failure of a taxpayer to
appeal to the CTA makes the assessment final and executory.
Thereafter, if a collection suit is filed in the court, there can no
longer be any inquiry on the merits of the original case.
(Republic v. Dy Chay 1 SCRA 975; Olivares v. Marquez, 438
SCRA 679)
Non-Disputed Assessments
As provided in RA 9262, the CTA has:
“(1) Exclusive original jurisdiction in tax collection cases
involving final and executory assessments for taxes, fees,
charges and penalties; Provided, however, that collection cases
where the principal amount of taxes and fees, exclusive of
charges and penalties, claimed is less than P1M shall be tried
by the proper MTC, MetTC and RTC.
The tax collection case would fall under the jurisdiction of the
first level courts where the amount does not exceed
P300,000.00 or in MM where it does not exceed P400,000.00.
Where, however, what is being questioned is the very authority
and power of the assessor, acting solely and independently, to
impose the assessment and of the treasurer to collect the tax,
and not merely the amounts of the increase in the tax,
jurisdiction over the case was properly with the trial courts.
(Olivares v. Marquez 438 SCRA 679)
Special jurisdiction to try special cases
Certain branches of the RTC may be designated by the SC to
handle exclusively criminal cases, juvenile and domestic
relations cases, agrarian cases, urban and land reform cases
which do not fall under the jurisdiction of quasi-judicial bodies
and agencies, and/or such other special cases as the SC may
determine in the interest of a speedy and efficient
25
administration of justice (Sec. 233 BP Blg. 129) Jurisdiction
over intra-corporate controversies
Sec. 5.2 of the Securities Regulation Code (RA No 8799) provides
that the RTCs shall exercise original and exclusive jurisdiction
to hear and decide the following cases:
a.) Cases involving devises or schemes employed by or any
act, of the board of directors, business associates, its
officers or partnership, amounting to fraud and
misrepresentation which may be detrimental to the
interest of the public and/or of the stockholders,
partners, members of associations or organizations
registered with the Commission.
b.) Controversies arising out of inter-corporate or
partnership relations, between and among
stockholders, members or associates; between any or
all of them and the corporation, partnership or
association of which they are stockholders, members
or associates, respectively, and between such
corporation, partnership or association and the state
insofar as it concerns their individual franchise or
right to exist as such entity.
c.) Controversies in the election or appointments of
directors, trustees, officers or managers of such
corporations, partnerships or associations; and
d.) Petitions of corporations, partnerships or associations to
be declared in the state of suspension of payments in
cases where the corporation, partnership or
association possesses sufficient property to cover all
its debts but foresees the impossibility of meeting them
when they respectively fall due or in cases where the
corporation, partnership or association has no
sufficient assets to cover its liabilities, but is under the
management of a Rehabilitation Receiver or
Management Committee.
CONCURRENT ORIGINAL JURISDICTION OF THE
RTC
Sec. 21. Original jurisdiction in other cases. -
Regional Trial Courts shall exercise
original jurisdiction:
[1] In the issuance of writs of certiorari,
prohibition, mandamus, quo warranto,
habeas corpus, and injunction which may
be enforced in any part of their respective
regions;
Q: What is the difference between the original jurisdiction of the
RTC in Section 21 and the original jurisdiction of the RTC in
Section 19?
A: In Section 19, you have the EXCLUSIVE original jurisdiction,
whereas in Section 21 you have the original jurisdiction but
CONCURRENT with other courts.
Thus “original” jurisdiction stated in Section 21 is also shared
with the SC and CA. Therefore , the SC, CA, and RTC have
original concurrent jurisdiction under Section 21. Like issuance
of writs of certiorari, prohibition, mandamus, quo warranto,
habeas corpus, etc. This is concurrent with the CA and the SC.
Such writs may be issued by (a) the RTC under Section 19; (b)
CA under Section 9; and (c) SC under Article VIII Section 5 of
the Constitution. The 3 courts share concurrent jurisdiction
over these cases.
However the only difference is that writs issued by an RTC can
only be enforced in the same region where the RTC belongs.
Unlike writs issued by the SC and CA, they can be enforced
anywhere in the Philippines.
[2] In actions affecting ambassadors and other
public ministers and consuls.
The SC and RTC have original concurrent jurisdiction in actions
affecting ambassadors, other public ministers and consuls.
Section 21 paragraph 2 states only of the concurrent original
jurisdiction of the SC and RTC. Section 19 on the jurisdiction
of CA does not include the action stated in section 21 paragraph
2 as part of its (CA’s) jurisdiction.
APPELLATE JURISDICTION OF THE RTC
Sec. 22. Appellate jurisdiction. - Regional
Trial Courts shall exercise appellate
jurisdiction over all cases decided by
MetTCs,
MTCs and MCTCs in their respective
territorial jurisdictions. Such cases shall
be decided on the basis of the entire
record of the proceedings had in the court
of origin and such memoranda and/or
briefs as may be submitted by the parties
or required by the RTCs. The decision of
the RTCs in such cases shall be appealable
by petition for review to the CA which
may give it due course only when the
petition show prima facie that the lower
court has committed an error of fact or
law that will warrant a reversal or
modification of the decision or judgment
sought to be reviewed.
Now take note that the RTC also has appellate jurisdiction
under Section 22. These are cases decided by the MTC. So they
act as a sort of ‘court of appeals.’ The RTC exercises appellate
jurisdiction over all cases decided by the MTC in their respective
territorial jurisdiction.
Q: How will the RTC decide on the appeal?
A: It shall be decided on the basis of the entire record of the
proceedings had in the court of origin (MTC) such as
memoranda and/or briefs as may be submitted. This means
that witnesses will not be made to appear again in the appeal.
It is only a matter of reviewing the testimony, stenographic
notes, evidence presented, memoranda and briefs by the RTC
judge.
Q: What are memoranda and briefs?
A: It is where the appealing party will argue that the decision is
wrong and try to convince the judge that the decision is wrong,
and the other party to counter act that the decision is correct.
Q: Assuming that the case is originated in the MTC and
subsequently dismissed by the RTC on appeal, is the decision
by the RTC rendered pursuant to its appellate jurisdiction
appealable to the CA?
A: YES, but the mode of appeal is now different. The decision of
the RTC in such cases shall be appealable by petition to review
to the CA. The CA may or may not give it due course.
Q: What is the difference between an appeal made from the RTC
to CA and appeal from the MTC to RTC, which is dismissed by
the latter and subsequently appealed to the CA?
A: The former (RTC – CA) is in pursuance to the original
jurisdiction of the RTC. The latter (MTC-RTC-CA) is in
pursuance to the appellate jurisdiction of the RTC. (They are
governed by different rules) To illustrate:
Pursuant to Pursuant to
original appellate
jurisdiction of the RTC: jurisdiction of the RTC:
COURT OF COURT OF
APPEALS APPEALS
Ordinary appeal Petition for Review
(Rule 41) (Rule 42)
RTC RTC
Ordinary Appeal
(Rule 40)
MTC
Unlike in a case under the original jurisdiction of the RTC,
where an appeal to the CA is a matter of course. Meaning, for
26
as long as your appeal is on time and properly made, the CA will
entertain it.
It is different, however, in a case under the appellate jurisdiction
of the RTC, even if your appeal is on time and properly made,
there is no assurance that the CA will entertain the appeal. The
CA may give it due course only when your petition for review
shows prima facie evidence that the lower court has committed
an error of fact or law that will warrant a reversal or
modification of the decision or judgment sought to be reviewed.
Summary of RTC jurisdiction:
1.) As to the EXCLUSIVE original jurisdiction –
Section 19 (BP 129);
2.) As to its original CONCURRENT jurisdiction –
Section 21 (BP 129);
3.) As to its APPELLATE jurisdiction – Section 22
(BP
129)
JURISDICTION OF FAMILY COURTS
Under RA 8369, the Family Courts shall have exclusive
jurisdiction over the following civil cases:
1. Petitions for guardianship, custody of children and
habeas corpus involving children;
2. Petitions for adoption of children and the revocation
thereof;
3. Complaints for annulment of marriage, declaration of
nullity of marriage and those relating to status and
property relations of husband and wife or those living
together under different status and agreements, and
petitions for dissolution of conjugal partnership of
gains;
4. Petitions for support and/or acknowledgment;
5. Summary judicial proceedings brought under the
provisions of Executive Order No. 209, otherwise
known as the “Family Code of the Philippines”;
6. Petitions for declaration of status of children as
abandoned, dependent, or neglected children, petition
for voluntary of involuntary commitment of children,
the suspension, termination or restoration of parental
authority and other cases cognizable under PD No.
603,
E.O. No. 56 (series of 1986) and other related laws;
7. Petitions for the constitution of the family home (Sec. 5
RA 8369).
In areas where there are no Family Courts, the above
enumerated cases shall be adjudicated by the Regional Trial
Court (Sec. 17, RA No. 8369).
JURISDICTION OF THE
MUNICIPAL TRIAL COURTS
Actually, when you know the jurisdiction of the RTC,
automatically you know the jurisdiction of the MTC. In criminal
cases for example, RTC has jurisdiction when the penalty
imposable is imprisonment of more than 6 years until death
penalty. So, necessarily, if it is 6 years or below, the MTC has
jurisdiction. Same with civil cases.
Summary of jurisdiction of MTC:
a) As to original jurisdiction – Section 33
b) As to delegated jurisdiction – Section 34
c) As to special jurisdiction – Section 35
A.) EXCLUSIVE ORIGINAL JURISDICTION OF THE MTC
 Sec. 33. Jurisdiction of Metropolitan Trial
Courts, Municipal Trial Courts and Municipal
Circuit Trial Courts in civil cases. -
Metropolitan Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Courts
shall exercise:
1) Exclusive original jurisdiction over civil
actions and probate proceedings,
testate and intestate, including the
grant of provisional remedies in
proper cases, where the value of the
personal property, estate, or amount
of the demand does not exceed One
hundred thousand pesos
(P100,000.00) or, in Metro Manila
where such personal property, estate,
or amount of the demand does not
exceed two hundred thousand pesos
(P200,000.00), exclusive of interest,
damages of whatever kind, attorney's
fees, litigation expenses, and costs,
the amount of which must be
specifically alleged: Provided, That
interest, damages of whatever kind,
attorney's fees, litigation expenses,
and costs shall be included in the
determination of the filing fees:
Provided further, That where there
are several claims or causes of actions
between the same or different parties,
embodied in the same complaint, the
amount of the demand shall be the
totality of the claims in all the causes
of action, irrespective of whether the
causes of action arose out of the same
or different transactions.
RA 7691, Sec. 5. After five (5) years from the effectivity of
this Act, the jurisdictional amounts mentioned in Sec.
19(3), (4), and (8); and Sec. 33(1) of Batas Pambansa Blg.
129 as amended by this Act, shall be adjusted to Two
hundred thousand pesos (P200,000.00). Five (5) years
thereafter, such jurisdictional amounts shall be adjusted
further to Three hundred thousand pesos (P300,000.00):
Provided, however, That in the case of Metro Manila, the
abovementioned jurisdictional amounts shall be adjusted
after five (5) years from the effectivity of this Act to Four
hundred thousand pesos (P400,000,00).
Well if you know the jurisdiction of the RTC on money claims
and probate cases, automatically you will also know that of the
MTC.
Under the law, it is only the principal claim or the main claim
which is computed. Interest, damages of whatever kind,
attorneys fees, litigation expenses and cost are not included in
determining the jurisdiction when they are merely incidental to
or a consequence of the main cause of action. However, in cases
where the claim for damages is the main cause of action, or one
of the causes of action, the amount of such claim shall be
considered in determining the jurisdiction of the court.
Jurisdiction and Payment of Docket Fees
Even if the amount of damages and attorney’s fees do not
determine jurisdiction, they must still be specifically alleged in
the complaint for the purpose of payment of docket fees. Thus,
the higher the amount one is claiming the higher the filing fee.
Why pay the docket fee?
Because it is not simply the filing of the complaint or
appropriate initiatory pleading, but the payment of the
prescribed docket fee, that vests a trial court with jurisdiction
over the subject matter or nature of the action. (Sun Insurance
Office Ltd. [SIOLI] v. Asuncion 170 SCRA 274, 285 [1989])
Let us review what we learned in criminal procedure.
SECTION 1. Xxxxxx
When the offended party seeks to enforce
civil liability against the accused by way of
moral, nominal, temperate, or exemplary
damages without specifying the amount
thereof in the complaint or information, the
filing fees therefore shall constitute a first
27
lien on the judgment awarding such
damages.
Where the amount of damages, other than
actual, is specified in the complaint or
information, the corresponding filing fees
shall be paid by the offended party upon the
filing thereof in court.
Except as otherwise provided in these Rules,
no filing fees shall be required for actual
damages.
(b) The criminal action for violation of Batas
Pambansa Blg. 22 shall be deemed to include
the corresponding civil action. No reservation
to file such civil action separately shall be
allowed.
Upon filing of the aforesaid joint criminal and
civil actions, the offended party shall pay in
full the filing fees based on the amount of the
check involved, which shall be considered as
the actual damages claimed. Where the
complaint or information also seeks to
recover liquidated, moral, nominal,
temperate or exemplary damages, the
offended party shall pay additional filing fees
based on the amounts alleged therein. If the
amounts are not so alleged but any of these
damages are subsequently awarded by the
court, the filing fees based on the amount
awarded shall constitute a first lien on the
judgment.
EMNACE vs CA (2001) GR 126334
Payment of Filing fees In Case Civil Aspect Is Deemed Impliedly
Instituted In the Criminal Action:
In any event, the Court now makes that intent plainer, and in
the interest of clarity and certainty, categorically declares for
guidance of all concerned that when the civil action is deemed
impliedly instituted with the criminal in accordance with
Section 1, Rule 111 of the Rules of Court – because the offended
party has not waived the civil action, or reserved the right to
institute it separately, or instituted the civil action prior to the
criminal action – the rule is as follows: (1) when the amount of
the damages, other than actual, is alleged in the complaint or
information filed in court, then the corresponding filing fees
shall be paid by the offended party upon filing thereof in court
for trial; (2) in any other case, however, -- i.e. when the amount
of damages is not so alleged in the complaint or information
filed in court the corresponding filing fees need not be paid and
shall simply constitute a first lien on the judgment, except in an
award for actual damages. (General vs. Hon. Claravall, et al.,
195 SCRA 623)
Q: Suppose there was no mention of any claim for moral or
exemplary damages, by not stating the amount claimed, can he
still prove them during the trial? YES
But he did not pay docket fee?
A: Never mind, once it is awarded, there is now a lien in the
judgment for the payment of the docket fee.
For Independent Civil Actions
In the case of Sun Insurance if the damages was not mentioned
in the complaint in the civil case they are deemed waived. If it is
mentioned, and the amount is fixed you must pay the docket fee
at the start of the case though if it is not complete, you are
given the chance to complete the payment or amend the
complaint within reasonable time.
In criminal cases, even if there is no mention of damages in the
information, you can still prove and claim them as long as there
is no waiver or reservation.
When docket fee is due for actual damage:
So in criminal cases, if the claim for moral or exemplary
damages is mentioned in the information, you must pay the
docket fee upon filing of the information. But whether alleged in
the information or not, you can claim for actual damages and
there is no docket fee for actual damages except in cases under
BP 22. That is the exception which is now embodied in Section 1
paragraph [b] which was taken from SC circular 57-97 – there is
no payment of docket fee for actual damages except in criminal
cases for violation of BP 22 because paragraph [b] says:
Upon filing of the aforesaid joint criminal and civil
actions, the offended party shall pay in full the filing
fees based on the amount of the check involved, which
shall be considered as the actual damages claimed.
OTHER CASES ON FILING FEE IN CIVIL CASES:
In the case of
MANCHESTER DEVELOPMENT CORP. vs. CA – 149 SCRA
562
FACTS: The plaintiff files a complaint and paid the docket
fee but he did not specify the amount of the damages he
was claiming. He contended that he is claiming for moral
damages in such amount as the court will grant.
Respondent contended, on the other hand, that it cannot be
done, there is a necessity to state the exact amount of the
damages in order to determine the correct amount of the
docket fee. So the plaintiff amended the complaint and paid
the balance of the docket fees.
ISSUE: Whether or not the subsequent amendment cures the
defect?
HELD: No, the defect is incurable. Thus, the action has to
be dismissed. The court acquires no jurisdiction over the
case. The remedy is to re-file the complaint and pay again
the complete amount of the docket fee. The prior payment
made is forfeited in as much as the defect in the first
complaint is incurable.
So based on the MANCHESTER ruling, you cannot cure the
defect by merely amending the complaint.
However, the SC, after reflecting on what it said in the case of
MANCHESTER, realized the harshness of their decision. This
Manchester ruling was relaxed in the subsequent case of SUN
INSURANCE OFFICE which is now the governing law:
SUN INSURANCE OFFICE LTD. vs. COURT OF APPEALS –
170
SCRA 274 [1989]
HELD: Thus, the Court rules as follows:
1. It is not simply the filing of the complaint or
appropriate initiatory pleading, but the payment of
the prescribed docket fee, that vests a trial court
with jurisdiction over the subject matter or nature
of the action. Where the filing of the initiatory
pleading is not accompanied by payment of the
docket fee, the court may allow payment of the fee
within a reasonable time but in no case beyond
the applicable prescriptive or reglementary period.
2. The same rule applies to permissive
counterclaims, third party claims and similar
pleadings, which shall not be considered filed
until and unless the filing fee prescribed therefore
is paid. The court may also allow payment of said
fee within a reasonable time but also in no case
beyond its applicable prescriptive or reglementary
period.
3. Where the trial court acquires jurisdiction over a
claim by the filing of the appropriate pleading and
payment of the prescribed filing fee but,
subsequently, the judgment awards a claim not
specified in the pleading, or if specified the same
has been left for determination by the court, the
28
additional filing fee therefor shall constitute a lien
on the judgment. It shall be the responsibility of
the Clerk of Court or his duly authorized deputy
to enforce said lien and assess and collect the
additional fee.
Payment of docket fee and counterclaims
Second rule:
“The same rule applies to permissive counterclaims…”
Re Compulsory Counterclaim
Rule 141 on Legal Fees was revised effective August 26, 2004 by
AM No. 04-2-04-SC and the revision includes the payment of
docket fees not only for permissive counterclaim but also for
compulsory counterclaims. But the SC suspended the
enforcement of the new rates of legal fees under Rule 141
effective September 21, 2004, with respect to compulsory
counterclaims, among others. It did not suspend the imposition
of legal fees.
However, in Korea Technologies Co. Ltd. Vs. Lerma, 542 SCRA
1, January 7, 2008, the Court said:
“On July 17, 1998, at the time PGSMC filed its Answer
incorporating its counterclaims against KOGIES, it was not
liable to pay filing fees for said counterclaim being compulsory
in nature. We stress, however, that effective August 16, 2004,
under Sec. 7 of Rule 141, as amended by AM No. 04-2-04-SC,
docket fees are now required to be paid in compulsory
counterclaim or cross claims.”
And the third rule laid down in Sun Insurance:
If the judgment awards a claim not specified in the pleadings,
the filing fee therefor shall be a lien in the judgment. It shall be
the responsibility of the clerk of Court or his duly-authorized
deputy to enforce the lien, assess and collect the additional fee.
Q: When can this possibly happen?
A: That can happen for example if I ask for damages. A man was
hospitalized because of physical injuries. While still in the
hospital he filed an action for damages and based the amount of
damages on the current billing but alleged that he continues to
incur expenses as may be determined in the course of trial. He
paid the docket fee corresponding to the amount mentioned.
After trial he was able to establish expenses in the sum of
P50,000.00.
Q: Can the court award the P 50,000?
A: Yes, because the additional expenses came only after the
filing of the case. The additional docket fee will constitute a lien
on the award.
The Sun Insurance is a leading case on docket fee. It was
followed with a third case in December 1989 which further
clarified the SUN INSURANCE ruling. This is the case of
TACAY vs. RTC OF TAGUM, DAVAO DEL NORTE - 180
SCRA 433 [1989]
NOTE: When this case was filed, there was no SUN
INSURANCE decision yet. The guiding rule
was still
MANCHESTER. But while this was pending the SUN INSURANCE
was already out.
FACTS: The case was for recovery of land with damages. So it is
not purely for damages. So the amount of filing fee is assessed
based on the assessed value of the land because it is a real
action, which the plaintiff paid.
Defendant moved to dismiss based on MANCHESTER because
the plaintiff did not specify in the complaint how much damages
he was claiming. Now the RTC of Tagum denies the motion to
dismiss. The defendant goes to the SC citing MANCHESTER.
Of course the SC said that the Manchester ruling was no longer
controlling because of Sun Insurance.
But it enunciated another rule.
HELD: “Where the action involves real property and a related
claim for damages as well, the legal fees shall be assessed on
the basis of both:
a) the value of the property and
b) the total amount of related damages sought.
The court acquires jurisdiction over the action if the filing of the
initiatory pleading is accompanied by the payment of the
requisite fees, or, if the fees are not paid at the time of the filing
of the pleading, as of the time of full payment of the fees within
such reasonable time as the court may grant, unless, of course,
prescription has set in the meantime.”
In other words, the total docket fee must be based on the
assessed value of the land and for the damages. Thus:
1. If the docket fee for the recovery of land is paid but
none for the damages, do not dismiss the entire case!
Just do not consider the claim for the damages. Or,
2. second option, citing SUN INSURANCE, give him
reasonable time to pay the balance.
While Sun Insurance relaxed the rule (as to how or when to
complete the payment), it did not however, effect any change in
the rule that it is not only the filing of the complaint but also
the payment of the docket fee that is necessary for the
acquisition of the jurisdiction of the court over the complaint
filed. (Gensoli & Co. v. NLRC, 289 SCRA 407, 413 [1998]). If the
filing of the initiatory pleading is not accompanied by payment
of the docket fees, the court may allow payment of the fee within
a reasonable time but in no case beyond the applicable
prescriptive or reglementary period. (Colarina v. CA, 303 SCRA
647, 654 [1999])
Other interesting cases on docket fees.
No “file now, pay later” policy
FILIPINAS SHELL PETROLEUM CORP vs. COURT OF
APPEALS –
171 SCRA 674 [1989]
FACTS: Adrian dela Paz sued all oil companies (Shell,
Caltex, Mobil, etc.) of the Philippines for infringement of
patent with prayer for the payment of reasonable
compensation for damages. According to him, these
companies used in their operation a certain type of machine
which he claimed he invented. His patent was infringed.
Thus, all these companies are all liable to him for royalties.
The estimated yearly royalty due him is P236,572. Since the
violation has been for many years already, his claims
reached millions. The trial court ordered him to pay
P945,636.90 as docket fee. He had no money so he
questioned it. The trial court ruled:
“We will allow you to file the case and the docket fee is
deductible from whatever judgment of damages shall be
awarded by the court.”
HELD: There is no such thing as file now pay later. No
justification can be found to convert such payment to
something akin to a contingent fee which would depend on
the result of the case.
“Filing fees are intended to take care of court expenses in
the handling of cases in terms of cost of supplies, use of
equipments, salaries and fringe benefits of personnel, etc.,
computed as to man hours used in handling of each case.
The payment of said fees therefore, cannot be made
dependent on the result of the action taken, without
entailing tremendous losses to the government and to the
judiciary in particular.”
Q: What is the remedy of the plaintiff if he/she cannot really pay
the filing fee?
A: Have himself declared by the court as a pauper litigant.
LACSON vs. REYES - 182 SCRA 729
FACTS: There was a case filed and then the lawyer filed a
motion to direct the plaintiff to pay him his attorney’s fees –
a motion for payment of attorney’s fees.
29
Issue: Is the lawyer required to pay a filing fee?
HELD: Yes. “It may be true that the claim for attorney's fees
was but an incident in the main case, still, it is not an
escape valve from the payment of docket fees because as in
all actions, whether separate or as an offshoot of a pending
proceeding, the payment of docket fees is mandatory. The
docket fee should be paid before the court would validly act
on the motion.”
SUSON vs. COURT OF APPEALS - 278 SCRA 284 [August 21,
1997)
FACTS: Mortz filed a case against Charles in Leyte. After
filing, the court dismissed the case because it should be
filed in Cebu. Mortz wrote a letter to the Office of the Court
Administrator (OCA) asking that the docket fee paid in Leyte
be considered applicable to Cebu. OCA granted his request.
Charles questioned it because of the rule that the payment of
docket fee is jurisdictional.
HELD: “The OCA has neither the power nor the authority to
exempt any party not otherwise exempt under the law or under
the Rules of Court in the payment of the prescribed docket fees.
It may be noteworthy to mention here that even in the Supreme
Court, there are numerous instances when a litigant has had to
re-file a petition previously dismissed by the Court due to a
technicality (violation of a pertinent Circular), and in these
instances, the litigant is required to pay the prescribed docket
fee and not apply to the re-filed case the docket fees paid in the
earlier dismissed case.”
“In the case at bar, in the strict sense, Mortz’s complaint cannot
be deemed to have been ‘re-filed’ in Cebu City because it was
not originally filed in the same court but in the RTC Leyte.
Thus, when Mortz’s complaint was docketed by the clerk of
court of the RTC Cebu City, it became an entirely separate case
from that dismissed by the RTC of Leyte due to improper venue.
As far as the case in Cebu is concerned, while undoubtedly the
order of dismissal is not an adjudication on the merits of the
case, the order, nevertheless, is a final order. This means that
when private respondent did not appeal therefrom, the order
became final and executory for all legal intents and purposes.”
DE LEON vs. COURT OF APPEALS – 287 SCRA 94 [March 6,
1998]
FACTS: The question for decision is whether in assessing the
docket fees to be paid for the filing of an action for annulment or
rescission of a contract of sale, the value of the real property,
subject matter of the contract, should be used as basis, or
whether the action should be considered as one which is not
capable of pecuniary estimation and therefore the fee charged
should be a flat rate of P400.00 as provided in Rule 141, Section
7(b)(1) of the Rules of Court.
Defendant argued that an action for annulment or rescission of
a contract of sale of real property is a real action and, therefore,
the amount of the docket fees to be paid by Plaintiff should be
based either on the assessed value of the property, subject
matter of the action, or its estimated value as alleged in the
complaint.
Since Plaintiff alleged that the land, in which they claimed an
interest as heirs, had been sold for P4,378,000.00 to defendant,
this amount should be considered the estimated value of the
land for the purpose of determining the docket fees.
Plaintiff countered that an action for annulment or rescission of
a contract of sale of real property is incapable of pecuniary
estimation and, so, the docket fees should be the fixed amount
of P400.00 in Rule 141, Section 7(b).
HELD: Plaintiff is correct. “In determining whether an action
is one the subject matter of which is not capable of
pecuniary estimation, this Court has adopted the criterion
of first ascertaining the nature of the principal action or
remedy sought. If it is primarily for the recovery of a sum of
money, the claim is considered capable of pecuniary
estimation, and whether jurisdiction is in the municipal
courts or in the courts of first instance would depend on the
amount of the claim. “
However, where the basic issue is something other than the
right to recover a sum of money, or where the money claim
is purely incidental to, or a consequence of, the principal
relief sought, like in suits to have the defendant perform his
part of the contract (specific performance) and in actions for
support, or for annulment of a judgment or to foreclose a
mortgage, this Court has considered such actions as cases
where the subject of the litigation may not be estimated in
terms of money, and are cognizable exclusively by courts of
first instance.”
“The rationale of the rule is plainly that the second class
cases, besides the determination of damages, demand an
inquiry into other factors which the law has deemed to be
more within the competence of courts of first instance,
which were the lowest courts of record at the time that the
first organic laws of the Judiciary were enacted allocating
jurisdiction.”
“Actions for specific performance of contracts have been
expressly pronounced to be exclusively cognizable by courts
of first instance and no cogent reason appears, and none is
here advanced by the parties, why an action for rescission
(or resolution) should be differently treated, a "rescission"
being a counterpart, so to speak, of ‘specific performance’.”
“In both cases, the court would certainly have to undertake
an investigation into facts that would justify one act or the
other. No award for damages may be had in an action for
rescission without first conducting an inquiry into matters
which would justify the setting aside of a contract. Issues of
the same nature may be raised by a party against whom an
action for rescission has been brought, or by the plaintiff
himself.”
“It is, therefore, difficult to see why a prayer for damages in
an action for rescission should be taken as the basis for
concluding such action as one capable of pecuniary
estimation — a prayer which must be included in the main
action if plaintiff is to be compensated for what he may have
suffered as a result of the breach committed by defendant,
and not later on precluded from recovering damages by the
rule against splitting a cause of action and discouraging
multiplicity of suits.”
“Thus, although eventually the result may be the recovery of
land, it is the nature of the action as one for rescission of
contract which is controlling.”
“Since the action of Plaintiff against Defendant is solely for
annulment or rescission which is not susceptible of
pecuniary estimation, the action should not be confused
and equated with the ‘value of the property’ subject of the
transaction; that by the very nature of the case, the
allegations, and specific prayer in the complaint, sans any
prayer for recovery of money and/or value of the
transaction, or for actual or compensatory damages, the
assessment and collection of the legal fees should not be
intertwined with the merits of the case and/or what may be
its end result.”
In Go vs. UCPB, GR No. 156182 Nov. 11, 2004 the court
declared the following as real actions:
3) judicial foreclosure of real estate mortgage;
4) actions to annul real estate mortgage;
for the reason that a real estate mortgage is a real right as well
as a real property. So an action to cancel or annul a real estate
mortgage necessarily affects title to the real property, hence a
real action and jurisdiction is determined by the assessed value
of the property.
EMNACE vs CA (2001) GR 126334
Issue: Whether or not respondent Judge acted without
jurisdiction or with grave abuse of discretion in taking
cognizance of a case despite the failure to pay the required
docket fee;
On August 8, 1996, the Court of Appeals rendered the assailed
decision, 12 dismissing the petition for certiorari, upon a finding
that no grave abuse of discretion amounting to lack or excess of
jurisdiction was committed by the trial court in issuing the
questioned orders denying petitioner's motions to dismiss.
30
Not satisfied, petitioner filed the instant petition for review,
raising the same issues resolved by the Court of Appeals,
namely:
I. Failure to pay the proper docket fee;
Xxxx xxxx xxxx
It can be readily seen that respondents' primary and ultimate
objective in instituting the action below was to recover the
decedent's 1/3 share in the partnership's assets. While they ask
for an accounting of the partnership's assets and finances, what
they are actually asking is for the trial court to compel
petitioner to pay and turn over their share, or the equivalent
value thereof, from the proceeds of the sale of the partnership
assets. They also assert that until and unless a proper
accounting is done, the exact value of the partnership's assets,
as well as their corresponding share therein, cannot be
ascertained. Consequently, they feel justified in not having paid
the commensurate docket fee as required by the Rules of Court.
We do not agree. The trial court does not have to employ
guesswork in ascertaining the estimated value of the
partnership's assets, for respondents themselves voluntarily
pegged the worth thereof at Thirty Million Pesos
(P30,000,000.00). Hence, this case is one which is really not
beyond pecuniary estimation, but rather partakes of the nature
of a simple collection case where the value of the subject assets
or amount demanded is pecuniarily determinable. While it is
true that the exact value of the partnership's total assets cannot
be shown with certainty at the time of filing, respondents can
and must ascertain, through informed and practical estimation,
the amount they expect to collect from the partnership,
particularly from petitioner, in order to determine the proper
amount of docket and other fees. 14 It is thus imperative for
respondents to pay the corresponding docket fees in order that
the trial court may acquire jurisdiction over the action.
Nevertheless, unlike in the case of Manchester Development
Corp.
v. Court of Appeals, 16 where there was clearly an effort to
defraud the government in avoiding to pay the correct docket
fees, we see no attempt to cheat the courts on the part of
respondents. In fact, the lower courts have noted their
expressed desire to remit to the court "any payable balance or
lien on whatever award which the Honorable Court may grant
them in this case should there be any deficiency in the payment
of the docket fees to be computed by the Clerk of Court." 17
There is evident willingness to pay, and the fact that the docket
fee paid so far is inadequate is not an indication that they are
trying to avoid paying the required amount, but may simply be
due to an inability to pay at the time of filing. This consideration
may have moved the trial court and the Court of Appeals to
declare that the unpaid docket fees shall be considered a lien on
the judgment award.
Petitioner, however, argues that the trial court and the Court of
Appeals erred in condoning the non-payment of the proper legal
fees and in allowing the same to become a lien on the monetary
or property judgment that may be rendered in favor of
respondents. There is merit in petitioner's assertion. The third
paragraph of Section 16, Rule 141 of the Rules of Court states
that:
The legal fees shall be a lien on the monetary or property
judgment in favor of the pauper-litigant.
Respondents cannot invoke the above provision in their favor
because it specifically applies to pauper-litigants. Nowhere in
the records does it appear that respondents are litigating as
paupers, and as such are exempted from the payment of court
fees.
The rule applicable to the case at bar is Section 5(a) of Rule 141
of the Rules of Court, which defines the two kinds of claims as:
1) those which are immediately ascertainable; and
 2) those which cannot be immediately ascertained as to
the exact amount.
This second class of claims, where the exact amount still has to
be finally determined by the courts based on evidence
presented, falls squarely under the third paragraph of said
Section 5(a), which provides:
In case the value of the property or estate or the sum claimed is
less or more in accordance with the appraisal of the court, the
difference of fee shall be refunded or paid as the case may be.
(Emphasis ours)
In Pilipinas Shell Petroleum Corporation v. Court of Appeals, 19
this Court pronounced that the above-quoted provision "clearly
contemplates an initial payment of the filing fees corresponding
to the estimated amount of the claim subject to adjustment as
to what later may be proved." 20 Moreover, we reiterated therein
the principle that the payment of filing fees cannot be made
contingent or dependent on the result of the case. Thus, an
initial payment of the docket fees based on an estimated
amount must be paid simultaneous with the filing of the
complaint. Otherwise, the court would stand to lose the filing
fees should the judgment later turn out to be adverse to any
claim of the respondent heirs.
The matter of payment of docket fees is not a mere triviality.
These fees are necessary to defray court expenses in the
handling of cases. Consequently, in order to avoid tremendous
losses to the judiciary, and to the government as well, the
payment of docket fees cannot be made dependent on the
outcome of the case, except when the claimant is a pauper-
litigant.
Applied to the instant case, respondents have a specific claim —
1/3 of the value of all the partnership assets — but they did not
allege a specific amount. They did, however, estimate the
partnership's total assets to be worth Thirty Million Pesos
(P30,000,000.00), in a letter addressed to petitioner.
Respondents cannot now say that they are unable to make an
estimate, for the said letter and the admissions therein form
part of the records of this case. They cannot avoid paying the
initial docket fees by conveniently omitting the said amount in
their amended complaint. This estimate can be made the basis
for the initial docket fees that respondents should pay. Even if it
were later established that the amount proved was less or more
than the amount alleged or estimated, Rule 141, Section 5(a) of
the Rules of Court specifically provides that the court may
refund the excess or exact additional fees should the initial
payment be insufficient. It is clear that it is only the difference
between the amount finally awarded and the fees paid upon
filing of this complaint that is subject to adjustment and which
may be subjected to a lien.
In the oft-quoted case of Sun Insurance Office, Ltd. v. Hon.
Maximiano Asuncion, this Court held that when the specific
claim "has been left for the determination by the court, the
additional filing fee therefor shall constitute a lien on the
judgment and it shall be the responsibility of the Clerk of Court
or his duly authorized deputy to enforce said lien and assess
and collect the additional fee." Clearly, the rules and
jurisprudence contemplate the initial payment of filing and
docket fees based on the estimated claims of the plaintiff, and it
is only when there is a deficiency that a lien may be constituted
on the judgment award until such additional fee is collected.
Based on the foregoing, the trial court erred in not dismissing
the complaint outright despite their failure to pay the proper
docket fees. Nevertheless, as in other procedural rules, it may be
liberally construed in certain cases if only to secure a just and
speedy disposition of an action. While the rule is that the
payment of the docket fee in the proper amount should be
adhered to, there are certain exceptions which must be strictly
construed.
In recent rulings, this Court has relaxed the strict adherence to
the Manchester doctrine, allowing the plaintiff to pay the proper
31
docket fees within a reasonable time before the expiration of the
applicable prescriptive or reglementary period.
In the recent case of National Steel Corp. v. Court of Appeals, 25
this Court held that:
The court acquires jurisdiction over the action if the filing of the
initiatory pleading is accompanied by the payment of the
requisite fees, or, if the fees are not paid at the time of the filing
of the pleading, as of the time of full payment of the fees within
such reasonable time as the court may grant, unless, of course,
prescription has set in the meantime.
It does not follow, however, that the trial court should have
dismissed the complaint for failure of private respondent to pay
the correct amount of docket fees. Although the payment of the
proper docket fees is a jurisdictional requirement, the trial court
may allow the plaintiff in an action to pay the same within a
reasonable time before the expiration of the applicable
prescriptive or reglementary period. If the plaintiff fails to
comply within this requirement, the defendant should timely
raise the issue of jurisdiction or else he would be considered in
estoppel. In the latter case, the balance between the appropriate
docket fees and the amount actually paid by the plaintiff will be
considered a lien or any award he may obtain in his favor.
(Emphasis ours)
Accordingly, the trial court in the case at bar should determine
the proper docket fee based on the estimated amount that
respondents seek to collect from petitioner, and direct them to
pay the same within a reasonable time, provided the applicable
prescriptive or reglementary period has not yet expired. Failure
to comply therewith, and upon motion by petitioner, the
immediate dismissal of the complaint shall issue on
jurisdictional grounds.
TOTALITY RULE
Now, continuing with Section 33, it says there in paragraph [1]:
“Provided further, That where there are
several claims or causes of actions between
the same or different parties, embodied in
the same complaint, the amount of the
demand shall be the totality of the claims
in all the causes of action, irrespective of
whether the causes of action arose out of
the same or different transactions.”
Under This rule, where there are several claims or causes of
actions between the same or different parties, embodied in the
same complaint, the amount of the demand shall be the totality
of the claims in all the causes of action, irrespective of whether
the causes of action arose out of the same or different
transactions (Sec. 33 as amended by RA No. 7691; PANTRANCO
North Express Inc. vs. Standard Insurance Company Inc., 453
SCRA 482).
ILLUSTRATION of joinder of causes of action:
The defendant secured from me two loans covered by 2
promissory notes and all of them are due and he has not paid
me any. Let's say each note covers a principal amount of
P175,000.00.
I decided to file one complaint embodying 2 causes of action
against him although I have the option also to file 2 separate
complaints. If you will look at the value of each claim which is
P175,000 that is triable by the MTC but if you will add the
claims that will be P350,000.00.
Q: Which court will have jurisdiction?
A: The RTC because the jurisdictional amount is the total
amount.
Never mind that there are 2 separate loans because the law says
“irrespective of whether the cause of action arose out of the
same or different transactions.”
In the example, there are two causes of action arising from two
separate transactions. Illustrate a joinder of causes of action
arising from only one transaction.
Suppose the loan is payable in installments on separate dates.
Each failure is a cause of action.
Now in the examples, there is only one plaintiff and one
defendant.
What about when there are several plaintiffs or defendants?
EXAMPLE: There are four (4) passengers riding on a public
vehicle. They were all injured when the bus met an accident and
all of them were hospitalized. So after they were discharged, the
four of them wanted to sue the bus company for damages
arising from contract of carriage or culpa contractual. They
decided to file only one complaint and, in effect, joined the 4
causes of action.
Q: What will be now the basis of jurisdiction the claim of each
plaintiff or the totality of the claims of the 4 plaintiffs?
A: The totality of the claims. You apply the totality rule because
the law says “where there are several claims or cause of action
between the same or different parties.”
So whether the parties are the same or the parties are different
embodied in the same complaint the amount of the demand
shall be the totality of the claims the totality rule applies in both
situations.
Totality Rule subject to rule on joinder of parties
Where two or more plaintiffs, having separate causes of action,
sue one defendant or a plaintiff sues one or more defendants in
a single complaint, based on several causes of action for or
against each other, respectively, the totality rule applies only
where there is a common question of fact or law among them as
provided in Section 6 of Rule 3.
When there are several parties-plaintiffs or defendants and
there are several causes of action, as in the last example given,
when you join the causes of action there will necessarily be a
joinder of parties. In such a case there can only be a proper
joinder of causes of action when there is a proper joinder of
parties and the totality rule applies only when the joinder is
proper.
Q: When is a joinder of parties proper?
A: It is proper when there is a common question of fact and law.
Note also that joinder of parties is permissive (Sec. 6, R3)
Jurisdiction of the MTC in Forcible Entry and Unlawful
Detainer
Sec. 33[2] Exclusive original jurisdiction
over cases of forcible entry and unlawful
detainer: Provided, That when, in such
cases, the defendant raises the question of
ownership in his pleadings and the
question of possession cannot be resolved
without deciding the issue of ownership,
the issue of ownership shall be resolved
only to
determine the issue of possession. x x x x”
These are called accion interdictal and the only issue is physical
possession of the property. The two cases should not be
confused with accion publiciana which is also the recovery of
possession.
In unlawful detainer, the plaintiff prays not only to eject the
defendant but also to claim for back rentals or the reasonable
amount of the use and occupation of the property in case of
forcible entry.
Q: Suppose the unpaid rentals already amount to almost half a
million pesos, where should the case be filed?
A: The case should still be filed with the MTC. What determines
jurisdiction is the nature of the action, and not the amount of
recoverable rentals.
32
Q: In an action for forcible entry or unlawful detainer, can the
party present evidence of ownership?
A: The general rule is NO because the MTC cannot adjudicate
ownership. That has to be threshed out in the proper civil action
in the RTC. But if evidence of ownership is presented in the
forcible entry or unlawful detainer case, it is only incidental and
it is only resolved to determine the issue of possession. Such
declaration of ownership is not final. The question of ownership
must be litigated in a separate action in the RTC.
Let us now proceed to the third paragraph of Section 33 as
amended by R.A. 7691:
Real Actions other then Forcible Entry and Unlawful Detainer
[3] Exclusive original jurisdiction in all
civil actions which involve title to, or
possession of, real property or any interest
therein where the assessed value of the
property or interest therein does not
exceed Twenty thousand pesos
(P20,000.00) or, in civil actions in Metro
Manila, where such assessed value does
not exceed Fifty thousand pesos
(P50,000.00) exclusive of interest,
damages of whatever kind, attorney's fees,
litigation expenses and costs: Provided,
That in cases of land not declared for tax
purposes, the value of such property shall
be determined by the assessed value of the
adjacent lots. (As amended by RA 7691)
Aside from forcible entry and unlawful detainer, MTCs now have
jurisdiction over other real actions or actions involving title to or
possession, or any interest therein, like accion publiciana and
accion reinvidicatoria cases where the assessed value of the
land should not exceed P20,000. In Metro Manila, it is not
exceeding P50,000 In cases of land not declared for taxation
purposes, the value of such property shall be determined by the
assessed value of the adjacent lots.. That is the amendment
brought about by RA 7691 which expanded the jurisdiction of
the MTC.
An accion reivindicatoria is a suit which has for its object the
recovery of possession over the real property as owner. It
involves recovery of ownership and possession based on said
ownership.
An accion publiciana is one for the recovery of possession or
the right to possess. It is also referred to as an ejectment suit
after the expiration of one year after the occurrence of the cause
of action or from the unlawful withholding of possession of the
realty. It is considered a plenary action to recover the right of
possession when dispossession is effected by means other than
unlawful detainer or forcible entry.
Q: What is the Assessed value?
A: The assessed value of real property can have reference only to
the tax rolls in the municipality where the property is located,
and is contained in the tax declaration. It is elementary that the
tax declaration indicating the assessed value of the property
enjoys the presumption of regularity as it has been issued by
the proper government agency (Hilario vs. Salvador, 457 SCRA
815).
In Vda. De Barrera vs. Heirs of Legaspi, GR No. 174346,
Sept. 12, 2008, the facts point to a complaint for reconveyance
of possession of real property with preliminary injunction and
damages filed in the RTC of Tangub City. One of the defenses
raised by the defendants was the court’s lack of jurisdiction over
the complaint, the assessed value of the subject property as
reflected in the uncontroverted tax declaration is only
P11,160.00. The trial court, in its decision, rejected the
contention of the defendant holding that since the complaint
alleged the estimated value of the land as P50,000.00, such
allegation must prevail over the assessed value of P11,160.00
relied upon by the defense. What determines the nature of the
action and the jurisdiction over the complaint, said the trial
court, are the facts alleged in the complaint and not those
alleged in the answer of the defendants. The CA affirmed.
On appeal by certiorari the SC held:
“The subject land has an assessed value of P11,160.00 as
reflected in the Tax Declaration No. 7565, a common exhibit of
the parties. The bare claim of respondents that it has a value of
P50,000.00 thus fails. The case, therefore, falls within the
exclusive original jurisdiction of the municipal trial court.
It was error then for the RTC to take cognizance of the
complaint based on the allegation that “the present estimated
value of the land is P50,000.00”…The estimated value,
commonly referred to as the fair market value of the property.”
B.) DELEGATED JURISDICTION OF THE MTC
Sec. 34. Delegated Jurisdiction in Cadastral
and Land Registration Cases. - MetTCs,
MTCs and MCTCs may be assigned by the
Supreme Court to hear and determine
cadastral or land registration cases
covering lots where there is no controversy
or opposition, or contested lots where the
value of which does not exceed One
hundred thousand pesos (P100,000.00),
such value to be ascertained by the
affidavit of the claimant or by agreement
of the respective claimants if there are
more than one, or from the corresponding
tax declarations of the real property. Their
decisions in these cases shall be appealable
in the same manner as decisions of the
RTCs. (As amended by RA 7691)
As a rule cadastral and land registration cases
fall under the jurisdiction of the RTC.
Q: What is the difference between a land registration proceeding
and a cadastral proceeding?
A: Cadastral is compulsory registration.
This is related to your study of Land, Titles and Deeds (The
Property Registration Decree). When you file a petition for land
registration, the object is to have your property registered and
fall under the Torrens System of the Land Registration.
Q: Now, what is this delegated jurisdiction all about?
A: It refers only to cadastral and land registration cases which
involve the titling of property under the Torrens system or
cadastral land registration.
Under the Property Registration Decree, only the RTC has
authority to entertain land registration and cadastral cases. But
now, Section 34 gives the Supreme Court the authority to
DELEGATE to MTCs to hear and decide land registration and
cadastral cases under the following conditions:
1.) when there is no controversy or nobody is
contesting your petition; or
2.) even if the petition is contested where the value of
the land to be titled does not exceed P100,000.
In which case, these MTCs can decide and their decisions are
appealable directly to the CA because in exercise of delegated
jurisdiction it is acting as an RTC.
The value of the lot shall be ascertained by the affidavit of the
claimant or by agreement of the respective claimants if there are
more than one, or from the corresponding tax declaration of the
real property.
Now do not confuse this P100,000 (Section 34) with the P20,000
under Section 33. Section 34 deals with cadastral and land
registration cases. Section 33 involves civil cases (accion
publiciana, etc.)
C.) SPECIAL JURISDICTION OF MTC
Sec. 35. Special jurisdiction in certain cases.
- In the absence of all the Regional Trial
Judges in a province or city, any
Metropolitan Trial Judge, Municipal Trial
Judge, Municipal Circuit Trial Judge may
hear and decide petitions for a writ of
33
habeas corpus or applications for bail in
criminal cases in the province or city
where the absent Regional Trial Judges sit.
This is what we call special jurisdiction. It only applies to two (2)
types of cases: (1) Habeas corpus and (2) hearing of petitions
for bail.
Remember that habeas corpus is not within the jurisdiction of
the MTC. It is with the RTC. In an application for bail the RTC
also has jurisdiction because the offense may be a heinous one,
but under the law on criminal procedure you can file a petition
for bail to have your temporary freedom while the case is going
on. That’s supposed to be in the RTC.
But suppose there is no available RTC judge, all of them are
sick or all of them are attending a convention (this actually
happened in Davao in 1990) Section 35 provides that the MTC,
in the absence of RTC judges, can hear and decide on habeas
corpus case petitions and applications or petitions for bail in
criminal cases.
That is allowed because of the urgency of the situation. There is
no need for a SC authorization. However, this is only allowed in
the absence of the RTC judges. But if the RTC judge comes
back, he has to take over the petition.
REVISED RULE ON SUMMARY PROCEDURE as amended by
A.M. 02-11-09-SC, effective November 25, 2002
Cases subject to summary procedure
(a) Forcible entry and unlawful detainer cases; and
(b) All other claims where the total claim does not exceed
P100,000.00 (outside Metro Manila), or does not
exceed P200,000.00 (Metro Manila) exclusive of
interests and costs. Probate proceedings are not
covered by the rule on summary procedure even if the
gross value of the estate does not exceed P100,000.00
or P200,000.00.
Some basic principles to be remembered in civil cases subject to
a summary procedure:
(a) Not all pleadings in an ordinary civil action are allowed
in a summary procedure. The only pleadings allowed
are (1) complaint; (2) compulsory counterclaim; (3)
crossclaim pleaded in the answer, (4) answers to these
pleadings (Sec. 3)
(b) The court in a summary procedure may dismiss the
case outright on any of the grounds for the dismissal
of a civil action (Sec. 4)
(c) Should the defendant fail to answer the complaint
within the period of ten (10) days from service of
summons, the court may motu proprio, or on motion
of the plaintiff, render judgment (not an order
declaring the defendant in default) as may be
warranted by the facts alleged and limited to what is
prayed for (Sec. 6)
(d) There shall be preliminary conference held but there
shall be no trial. Instead the parties shall submit
affidavits and position papers (Secs ,8,9)
(e) Within thirty (30) days from the receipt of the last
affidavits and positions papers, or the expiration of the
period for filing the same, the court shall render
judgment (Sec. 10)
(f) As a rule a motion to dismiss is not allowed except on
either of two grounds (1) lack of jurisdiction over the
subject matter, or (2) failure to comply with the
barangay conciliation proceedings (Sec. 19(a))
(g) Although a petition for certiorari is prohibited in cases
subject to summary procedure, the Court in one case
allowed the petition because the trial court gravely
abused its discretion by indefinitely suspending the
proceedings in ejectment cases thus, acting contrary to
the purposes of the Rules on Summary Procedure. The
SC recognized that because the order of the trial court
cannot be appealed from it being an interlocutory and
since the proceedings are covered by the Rules on
Summary Procedure, a ‘procedural void’ exists.
Invoking its power to suspend the rules to promote
substantial justice, the SC gave due course to the
petition pro hac vice because of the extraordinary
circumstances of the case. The Court observed that
allowing the petition would avoid the mischiefs sought
to be curbed by the Rules and would give spirit and life
 to the Rules on Summary Procedure (Go vs. CA 297
SCRA 574).
(h) It must be emphasized that in a civil case governed by
the Rules on Summary Procedure, no hearing is
conducted. Instead, the parties are required to submit
their respective position papers (Five Star Marketing
Corporation vs. Booc, 535 SCRA 28).
Q: Now, what are the PROHIBITED documents, motions, or
pleadings under the Summary Rules? A: The following (Under
Section 19):
1.) Motion to quash except when your ground
is
a.) lack of jurisdiction over the subject
matter; or
b.) failure to comply with the Barangay
Conciliation;
2.) Motion for bill of particulars;
3.) Motion for new trial, or for reconsideration
of a judgment, or for reopening of trial; your
remedy here is appeal;
4.) Petition for relief from judgement;
5.) Motion for extension of time to file an
affidavit;
6.) Memoranda;
7.) Petition for certiorari, mandamus, or
prohibition against any interlocutory orders
issued by the court;
8.) Motion to declare the defendant in default;
9.) Dilatory motions postponements;
10.) Reply;
11.) Third-party complaints;
12.) Interventions;
Jurisdiction Over Small Claims Cases
Introduction of the Concept of Small Claims Court in the
Philippines
The idea of establishing Small Claims Courts in the Philippines
was first proposed to the Supreme Court through a study
conducted in 1999 by Justice Josue N. Bellosillo, former Senior
Associate Justice of the Supreme Court. After observing small
claims courts and interviewing judges of such courts in Dallas,
Texas, United States in 1999, Justice Bellosillo proposed in a
Report that courts can be established in the Philippines to
handle exclusively small claims without the participation of
lawyers and where ordinary litigants can prosecute and defend
a small claims action through readymade forms. He envisioned
the small claims courts as another positive approach, in
addition to mandatory pre-trial, for solving court congestion and
delay.The study and report was subsequently endorsed for
legislative action to Senator Franklin Drilon who later funded a
project for this purpose. At the regular session of the Fourteenth
Congress, House Bill No. 2921 entitled “An Act Establishing
Small Claims Courts” was introduced by Congressman Jose V.
Yap. Thereafter, on July 3, 2007, Senate Bill No. 800 entitled
“Philippine Small Claims Court Act” was filed by Senator Ramon
A. Revilla, Jr. and, on September 3, 2007, the bill passed First
Reading and was referred to the Committee(s) on Justice and
Human Rights and Finance. The same is still pending with
these committees at present. In 2007, the United States Agency
for International Development (USAID) awarded a two-year grant
to the American Bar Association-Rule of Law Initiative (ABA-
ROLI) to pursue judicial reform activities in the Philippines for
the fiscal period October 2007 to September 30, 2009 . In a
letter to Chief Justice Reynato S.
Puno dated October 10, 2007, ABA-ROLI proposed the
establishment of small claims pilot courts among first level
courts in different regions of the Philippines. The small claims
pilot court project was proposed by ABA to USAID after
consultation with various Supreme Court officials in
conjunction with the 2000 Action Plan for Judicial Reform.
Among the critical issues being addressed by the APJR are case
congestion and delay. The congestion of case dockets is central
to a multitude of problems, either as cause or effect; it is either
the 34 A.M. No. 08-8-7-SC manifestation or the source of other
difficulties. Addressing this concern is thus an imperative8
which is why present reforms in judicial systems and
procedures have included the following:
34
1. streamlining procedural rules to eliminate
provisions that cause delay and permit dilatory
tactics;
2. re-engineering the jurisdictional structure of the
courts to ensure easy geographical access to the
courts particularly by the poor litigants;
3. improving the case management system toward
more transparency, accountability and integrity of
the judicial process and for better efficiency; and
4. strengthening of the mediation mechanism to
promote early dispute resolution nationwide.
This involves the institutionalization of court-annexed
mediation, and the establishment of a Mediation Center to
continually monitor and assess the performance of the system
and provide training and research.
Notwithstanding the absence of a law at the present time
creating small claims courts in our country, the Supreme Court
through a program in partnership with ABA-ROLI and USAID,
can promulgate and implement a simplified rule of procedure
exclusively for small claims and assign a certain number of
existing first level courts to take cognizance of small claims.
This does not need legislative action as the Court can designate
several first level courts all over the country to jump-start the
pilot project. Thus, pursuant to its rule-making power, the
Court under the present Constitution can adopt a special rule of
procedure to govern small claims cases and select pilot courts
that would empower the people to bring suits before them pro se
to resolve legal disputes involving simple issues of law and
procedure without the need for legal representation and
extensive judicial intervention. This system will enhance access
to justice especially by those who cannot afford the high costs of
litigation even in cases of relatively small value. It is envisioned
that by facilitating the traffic of cases through simple and
expeditious rules and means, our Court can improve the
perception of justice in this country, thus giving citizens a
renewed “stake” in preserving peace in the land. This is a
hopeful message to our people that
Rule of Procedure for Small Claims Cases “there is no need
to despair for there is deliverance in law; that is a promise that
has been fulfilled by law in the past; it is a promise law will
again fulfill in the future.” In December 2007, the Supreme
Court established a Technical Working Group composed of the
Court Administrator, the Program Management Office
Administrator, selected judges and other officials of the
Supreme Court and the Integrated Bar of the Philippines to
undertake the following activities:
1) The development of Rules and Procedures to
Implement Pilot Small Claims Courts;
2) The establishment of Criteria to Select Appropriate
Regions/Judges for Pilot Small Claims Courts and set
Peso Limits for the Small Claims Courts
3) Through the Philippine Judicial Academy, the conduct
of training programs for Judges and their personnel
participating in the Pilot Small Claims Courts project;
and
4) The employment of “Justice on Wheels” buses to
launch pilot small claims tribunals.
Rule of Procedure for Small Claims Cases 1
A.M. No. 08-8-7-SC
RULE OF PROCEDURE
FOR SMALL CLAIMS CASES
EFFECTIVE OCTOBER 1, 2008
MANILA, PHILIPPINES
SEPTEMBER 2008
RULE OF PROCEDURE
FOR SMALL CLAIMS CASES
SECTION 1. Title.—This Rule shall be known as
“The Rule of Procedure for Small Claims Cases.”
SEC. 2. Scope.—This Rule shall govern the
procedure in actions before the Metropolitan Trial
Courts, Municipal Trial Courts in Cities, Municipal
Trial Courts and Municipal Circuit Trial Courts for
payment of money where the value of the claim
does not exceed One Hundred Thousand Pesos
(P100,000.00) exclusive of interest and costs.
Explanatory Note: The purpose of a small claims process is to
provide an inexpensive and expeditious means to settle disputes
over small amounts. For purposes of the project, the amount
has been set for claims involving amounts of not more than
P100,000.00. The theory behind the small claims system is that
ordinary litigation fails to bring practical justice to the parties
when the disputed claim is small, because the time and expense
required by the ordinary litigation process is so disproportionate
to the amount involved that it discourages a just resolution of
the dispute. The small claims process is designed to function
quickly and informally. There are no attorneys, no formal
pleadings and no strict legal rules of evidence. The small claims
court system is not a “typical inferior court.” Parties are
encouraged to file small claims court actions to resolve their
minor disputes as opposed to resorting to self-help or forcible
means to seek their remedy. (Pace v. Hillcrest Motor Co., 161
Cal. Rptr. 663, 664 Ct. App. 1980)
SEC. 3. Definition of Terms.—For purposes of this
Rule:
(a) Plaintiff refers to the party who initiated a small
claims action. The term includes a defendant
who has filed a counterclaim against plaintiff;
(b) Defendant is the party against whom the
plaintiff has filed a small claims action. The
term includes a plaintiff against whom a
defendant has filed a claim, or a person who
replies to the claim;
(c) Person is an individual, corporation,
partnership,limited liability partnership,
association, or other juridical entity endowed
with personality by law;
(d) Individual is a natural person;
(e) Motion means a party’s request, written or oral,
to the court for an order or other action. It shall
include an informal written request to the court,
such as a letter;
(f) Good cause means circumstances sufficient to
justifythe requested order or other action, as
determined by the judge; and
(g) Affidavit means a written statement or
declaration of facts that are sworn or affirmed to
be true.
SEC. 4. Applicability.—The Metropolitan Trial
Courts, Municipal Trial Courts in Cities, Municipal
Trial Courts, and Municipal Circuit Trial Courts
shall apply this Rule in all actions which are: (a)
purely civil in nature where the claim or relief
prayed for by the plaintiff is solely for payment or
reimbursement of sum of money, and (b) the civil
aspect of criminal actions, either filed before the
institution of the criminal action, or reserved upon
the filing of the criminal action in court, pursuant
35
to Rule 111 of the Revised Rules Of Criminal
Procedure. These claims or demands may be:
(a) For money owed under any of the following:
1.Contract of Lease;
2.Contract of Loan;
3.Contract of Services;
4.Contract of Sale; or
5.Contract of Mortgage;
(b) For damages arising from any of the following:
1.Fault or negligence;
2.Quasi-contract; or
3.Contract;
(c) The enforcement of a barangay amicable
settlement or an arbitration award involving a
money claim covered by this Rule pursuant to
Sec. 417 of Republic Act 7160, otherwise known
as the Local Government Code of 1991.
Explanatory Note: The kinds of cases that can be filed in Small
Claims Court vary, but the case must seek money only. For
example, a suit cannot be brought in Small Claims Court to
force a person or business to fix a damaged good; or to demand
fulfillment of a promised obligation which is not purely for
money, or to seek money to compensate for pain and suffering.
Some of the kinds of cases which are allowed as small claims
include the following:
1. Actual damage caused to vehicles, other personal
property, real property or person;
2. Payment or reimbursement for property, deposit, or
money loaned;
3. Payment for services rendered, insurance claim, rent,
commissions, or for goods sold and delivered;
4. Money claim pursuant to a contract, warranty or
agreement; and
5. Purely civil action for payment of money covered
bybounced or stopped check.
SEC. 5. Commencement of Small Claims Action.—A
small claims action is commenced by filing with the
court an accomplished and verified Statement of Claim
(Form 1-SCC) in duplicate, accompanied by a
Certification of Non-forum Shopping (Form 1-A, SCC),
and two (2) duly certified photocopies of the actionable
document/s subject of the claim, as well as the
affidavits of witnesses and other evidence to support
the claim. No evidence shall be allowed during the
hearing which was not attached to or submitted
together with the Claim, unless good cause is shown for
the admission of additional evidence.
No formal pleading, other than the Statement of Claim
described in this Rule, is necessary to initiate a small
claims action.
SEC. 6. Joinder of Claims.—Plaintiff may join in a
single statement of claim one or more separate small
claims against a defendant provided that the total
amount claimed, exclusive of interest and costs, does
not exceed P100,000.00.
SEC. 7. Affidavits.—The affidavits submitted under this
Rule shall state only facts of direct personal knowledge
of the affiants which are admissible in evidence.
 A violation of this requirement shall subject the party,
and the counsel who assisted the party in the
preparation of the affidavits, if any, to appropriate
disciplinary action. The inadmissible affidavit(s) or
portion(s) thereof shall be expunged from the record.
SEC. 8. Payment of Filing Fees.—The plaintiff shall pay
the docket and other legal fees prescribed under Rule
141 of the Revised Rules of Court, unless allowed to
litigate as an indigent.
A claim filed with a motion to sue as indigent (Form 6-
SCC) shall be referred to the Executive Judge for
immediate action in case of multi-sala courts, or to the
Presiding Judge of the court hearing the small claims
case. If the motion is granted by the Executive Judge,
the case shall be raffled off or assigned to the court
designated to hear small claims cases. If the motion is
denied, the plaintiff shall be given five (5) days within
which to pay the docket fees, otherwise, the case shall
be dismissed without prejudice. In no case shall a
party, even if declared an indigent, be exempt from the
payment of the P1,000.00 fee for service of summons
and processes in civil cases.
Explanatory Note: A plaintiff may commence an action in the
small claims court by filing a Statement of Claim under oath
with the Clerk of the first level court in person or by mail. The
claim form shall be a simple nontechnical form approved or
adopted by the Supreme Court. The claim form shall set forth
1) the name and address of the defendant, if known;
2) the amount and the basis of the claim;
3) that the plaintiff, where possible, has demanded
payment and, in applicable cases, possession of the
property;
4) that the defendant has failed or refused to pay, and
where applicable, has refused to surrender the
property; and
5) that the plaintiff understands that the judgment on his
or her claim will be conclusive and without a right of
appeal.
The plaintiff should attach to the claim all documents necessary
to prove his/her right to reliefs prayed for. The form or
accompanying instructions shall include information that the
plaintiff
1. may not be represented by an attorney;
2. has no right of appeal; and
3. may ask the court to waive fees for filing and serving
the claim on the ground that the plaintiff is indigent
unable to pay them, using the forms approved by the
Supreme Court for that purpose.
SEC. 9. Dismissal of the Claim.—After the court
determines that the case falls under this Rule, it may,
from an examination of the allegations of the
Statement of Claim and such evidence attached
thereto, by itself, dismiss the case outright on any of
the grounds apparent from the Claim for the dismissal
of a civil action.
Explanatory Note: Jurisdiction and venue requirements in
small claims actions shall be the same as in other civil actions
provided in the Rules of Civil Procedure. A defendant may
challenge jurisdiction or venue or court location by including
these defenses in his Response before appearing in the
scheduled hearing. In all cases, even if the defendant does not
ask for dismissal of the case in the Response or appear at the
hearing, the court shall inquire into the facts sufficiently to
determine whether jurisdiction and authority of the court over
the action are proper, and shall make its determination
accordingly.
36
SEC. 10. Summons and Notice of Hearing.—If no
ground for dismissal is found, the court shall
forthwith issue Summons (Form 2-SCC) on the day
of receipt of the Statement of Claim, directing the
defendant to submit a verified Response.
The court shall also issue a Notice (Form 4-SCC) to
both parties, directing them to appear before it on
a specific date and time for hearing, with a warning
that no unjustified postponement shall be allowed,
as provided in Section 19 of this Rule. The
summons and notice to be served on the defendant
shall be accompanied by a copy of the Statement of
Claim and documents submitted by plaintiff, and a
copy of the Response (Form 3-SCC) to be
accomplished by the defendant. The Notice shall
contain an express prohibition against the filing of
a motion to dismiss or any other motion under
Section 14 of this Rule.
SEC. 11. Response.—The defendant shall file with
the court and serve on the plaintiff a duly
accomplished and verified Response within a non-
extendible period of ten (10) days from receipt of
summons. The Response shall be accompanied by
certified photocopies of documents, as well as
affidavits of witnesses and other evidence in
support thereof. No evidence shall be allowed
during the hearing which was not attached to or
submitted together with the Response, unless good
cause is shown for the admission of additional
evidence.
SEC. 12. Effect of Failure to File Response.—
Should the defendant fail to file his Response
within the required period, the court by itself shall
render judgment as may be warranted by the facts
alleged in the Statement of Claim limited to what
is prayed for.
The court however, may, in its discretion, reduce
the amount of damages for being excessive or
unconscionable.
SEC. 13. Counterclaims Within the Coverage of
this Rule.— If at the time the action is
commenced, the defendant possesses a claim
against the plaintiff that (a) is within the coverage
of this Rule, exclusive of interest and costs; (b)
arises out of the same transaction or event that is
the subject matter of the plaintiff’s claim; (c) does
not require for its adjudication the joinder of third
parties; and (d) is not the subject of another
pending action, the claim shall be filed as a
counterclaim in the Response; otherwise, the
defendant shall be barred from suit on the
counterclaim.
The defendant may also elect to file a counterclaim
against the plaintiff that does not arise out of the
same transaction or occurrence, provided that the
amount and nature thereof are within the coverage
of this Rule and the prescribed docket and other
legal fees are paid.
Explanatory Note: If a defendant has a claim against a plaintiff
that exceeds the limits stated in Section 2 of this Rule, and the
claim relates to the contract, transaction, matter, or event which
is the subject of the plaintiff’s claim, the defendant may
commence an action against the plaintiff in a court of competent
jurisdiction. If said claim which is beyond the limit of money
claim provided in this Rule is filed with the Response before the
Small Claims Court, the latter shall dismiss the counterclaim.
SEC. 14. Prohibited Pleadings and Motions.—The
following pleadings, motions, or petitions shall not
be allowed in the cases covered by this Rule:
 (a) Motion to dismiss the complaint except on the
ground of lack of jurisdiction;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings,
affidavits, or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third-party complaints; and (l) Interventions.
SEC. 15. Availability of Forms; Assistance by
Court Personnel.—The Clerk of Court or other
court personnel shall provide such assistance as
may be requested by a plaintiff or a defendant
regarding the availability of forms and other
information about the coverage, requirements as
well as procedure for small claims cases.
SEC. 16. Appearance.—The parties shall appear at
the designated date of hearing personally or
through a representative authorized under a
Special Power of Attorney (Form 5-SCC) to enter
into an amicable settlement, to submit to Judicial
Dispute Resolution (JDR) and to enter into
stipulations or admissions of facts and of
documentary exhibits.
SEC. 17. Appearance of Attorneys Not Allowed.—
No attorney shall appear in behalf of or represent a
party at the hearing, unless the attorney is the
plaintiff or defendant.
If the court determines that a party cannot
properly present his/ her claim or defense and
needs assistance, the court may, in its discretion,
allow another individual who is not an attorney to
assist that party upon the latter’s consent.
Explanatory Note: Except as permitted by this section, no
attorney shall appear in a small claims action except when the
latter shall maintain or defend an action in any of the following
capacities:
(1) By or against himself or herself;
(2) By or against a partnership in which he or she is a
general partner and in which all the partners are
attorneys; or
(3) By or against a professional corporation of which he or
she is an officer or director and of which all other
officers and directors are attorneys.
Nothing in this section shall prevent an attorney from doing any
of the following:
1) Providing advice to a party to a small claims action,
either before or after the commencement of the action;
or
2) Submitting an affidavit as a witness for a party in
order to state facts of which he or she has personal
knowledge and about which he or she is competent to
do so.
If the court determines that a party does not speak or
understand
English or Filipino sufficiently to comprehend the proceedings or
give testimony, to the questions of the court, if any, and needs
assistance in so doing, the court may permit another individual
(other than an attorney) to assist that party. If the court
37
interpreter or other competent interpreter of the language or
dialect known to the party is not available to aid that party in a
small claims action, at the first hearing of the case the court
shall postpone the hearing one time only to allow the party the
opportunity to obtain another individual (other than an
attorney) to assist that party. Any additional continuances shall
be at the sound discretion of the court.
SEC. 18. Non-appearance of Parties.—Failure of
the plaintiff to appear shall be cause for the
dismissal of the claim without prejudice. The
defendant who appears shall be entitled to
judgment on a permissive counterclaim.
Failure of the defendant to appear shall have the
same effectas failure to file a Response under
Section 12 of this Rule. This shall not apply where
one of two or more defendants who are sued under
a common cause of action and have pleaded a
common defense appears at the hearing. Failure of
both parties to appear shall cause the dismissal
with prejudice of both the claim and counterclaim.
SEC. 19. Postponement When Allowed.—A request
for postponement of a hearing may be granted only
upon proof of the physical inability of the party to
appear before the court on the scheduled date and
time. A party may avail of only one (1)
postponement.
Explanatory Note: A party may submit an oral or written
request to postpone a hearing date for good cause, as follows:
1) If the written request is in writing, it may be made
either by letter or on a form adopted or approved by
the Supreme Court;
2) The request shall be filed before the hearing date and
accompanied by proof of physical inability, unless the
court determines that the requesting party has good
cause to file the request on the date of hearing itself;
and
3) If the court finds that the interests of justice would be
served by postponing the hearing, the court shall do so
and shall notify all parties by mail on the same day of
the new hearing date, time and place.
This Section does not limit the inherent power of the court to
order postponements of hearings in strictly appropriate
circumstances. The postponement fee of One Hundred Pesos (or
as provided in Rule 141, Revised Rules of Court, as amended on
Legal Fees) shall be charged and collected before the filing of a
request for postponement and rescheduling of a hearing date.
SEC. 20. Duty of the Court.—At the beginning of
the court session, the judge shall read aloud a
short statement explaining the nature, purpose and
the rule of procedure of small claims cases.
SEC. 21. Judicial Dispute Resolution.—At the
hearing, the judge shall conduct Judicial Dispute
Resolution (JDR) through mediation, conciliation,
early neutral evaluation, or any other mode of JDR.
Any settlement (Form 7-SCC) or resolution (Form 8-
SCC) of the dispute shall be reduced into writing,
signed by the parties and submitted to the court
for approval (Form 12-SCC).
SEC. 22. Failure of JDR.—If JDR fails and the
parties agree in writing (Form 10-SCC) that the
hearing of the case shall be presided over by the
judge who conducted the JDR, the hearing shall so
proceed in an informal and expeditious manner and
terminated within one (1) day.
Absent such agreement, (a) in case of a multi-sala
court, the case shall, on the same day, be
 transmitted (Form 11-SCC) to the Office of the
Clerk of Court for immediate referral by the
Executive Judge to the pairing judge for hearing
and decision within five (5) working days from
referral; and (b) in case of a single sala court, the
pairing judge shall hear and decide the case in the
court of origin within five (5) working days from
referral by the JDR judge.
Explanatory Note: In hearings before the small claims court,
witnesses shall still be sworn in. The judge shall conduct the
hearing in an informal manner so as to do substantial justice
between the parties. The judge shall have the discretion to
admit all evidence which may be of probative value although not
in accordance with formal rules of practice, procedure, pleading
or evidence provided in the Rules of Court, except that privileged
communications shall not be admissible. The object of such
hearings shall be to determine the rights of the litigants on the
merits and to dispense expeditious justice between the parties.
An interventionist role by judges in such hearings is effective in
eliciting evidence from litigants in person. It is seen by
unrepresented parties as a “helping hand” which they
appreciate, provided that judges avoid the danger of appearing
to be partial. By discussing the facts of the case, judges find
what common ground does exist between the parties. This tends
to narrow the differences between the parties and make the final
judicial decision easier – whereas traditional open court trials,
with the presence of lawyers and the use of cross-examination
tend to polarize the parties, increase antagonism and heighten
the differences.
In this regard, Lord Woolf, Great Britain’s case management
expert, has observed:
“The role of the judge in small claims is not only that of
an adjudicator. It is a key safeguard of the rights of
both parties. In most cases, the judge is effectively a
substitute for a legal representative. His duty is to
ascertain the main matters at issue, to elicit the
evidence, to reach a view on the facts of the matter and
to give a decision.
In some cases he may encourage the parties to settle. In doing
so he should ensure that both parties have presented the
evidence and called the witnesses germane to their case and
that he has identified and considered any issue of law which is
pertinent to the case in hand. He must also hold the ring and
ensure that each party has a fair chance to present his own
case and to challenge that of his opponent.”
The key judicial skills in conducting such hearings are to
maintain a balance between informality and fairness, to ensure
a level playing field and to protect the weak and the scrupulous.
In practice, this is achieved by preventing interruptions and
parties talking over each other, and making it clear that both
parties will have plenty of time to say all that they wish before
the end of the hearing.
SEC. 23. Decision.—After the hearing, the court
shall render its decision on the same day, based on
the facts established by the evidence (Form 13-
SCC). The decision shall immediately be entered by
the Clerk of Court in the court docket for civil
cases and a copy thereof forthwith served on the
parties. The decision shall be final and
unappealable.
Explanatory Note: Despite the relative informality of the
procedure, judgments are based upon a strict application of the
substantive law and an objective judicial analysis of the facts.
The judge is duty-bound to give the legal basis for the findings.
The prohibition against appeals assures immediate and swift
justice.
The right to appeal is not a natural right nor a part due process.
It is merely a statutory privilege and a procedural remedy of
38
statutory origin, a remedy that may be exercised only in the
manner and in accordance with the provisions of the law
authorizing such exercise.
The applicable provisions of the law allowing appeals from
decisions of the first level courts are Sections 36 and 38 of B.P.
Blg. 129, as amended, also known as “The Judiciary
Reorganization Act of 1980.” The procedure on appeal is subject
to the limitations and restrictions provided by this Act and any
such rules as the Supreme Court may hereafter prescribe. Sec.
36 of B.P. Blg. 129 provides an instance wherein the Supreme
Court may adopt special procedures, including cases where
appeal may not be allowed, to achieve an expeditious and
inexpensive determination of particular cases requiring
summary disposition.
SEC. 24. Execution.—If the decision is rendered in
favor of the plaintiff, execution shall issue upon
motion (Form 9-SCC).
SEC. 25. Applicability of the Rules of Civil
Procedure.— The Rules of Civil Procedure shall
apply suppletorily insofar as they are not
inconsistent with this Rule.
SEC. 26. Effectivity.—This Rule shall take effect on
October 1, 2008 for the pilot courts designated to
apply the procedure for small claims cases
following its publication in two newspapers of
general circulation.
A.M. No. 08-8-7-SC
FORM 1-SCC
REPUBLIC OF THE PHILIPPINES
_______________________________
_______________________________
_______________________________
__________________________,
Plaintiff,
vs. Civil Case No. ________________ For:
______________________
__________________________, Defendant.
x- - - - - - - - - - - - - - - - - - - - - -x
STATEMENT OF CLAIM
Plaintiff respectfully alleges:
1. The personal circumstances of the parties are as follows:
NAME OF PLAINTIFF/S SEX AGE CIVIL STATUS
______________________ ______ _____ _________
INDIVIDUAL___ CORPORATION___ PARTNERSHIP___
SOLE PROPRIETORSHIP ___
NAME OF
REPRESENTATIVE:________________________________________
_
ADDRESS ZIP CODE
___________________________________________________ PLACE WHERE FILED
_________

NAME OF DEFENDANTS//S SEX AGE CIVIL STATUS

FORM 1-A-SCC
______________________ ______ _____ _________
VERIFICATION AND CERTIFICATION OF
INDIVIDUAL___ CORPORATION__ _PARTNERSHIP___
SOLE PROPRIETORSHIP ___ NON-FORUM SHOPPING

NAME OF REPRESENTATIVE: I, _________________________________, of legal age,

________________________________________ ____________________ ______________________________, and a
resident of
ADDRESS ZIP CODE __________________________________________________ , after
having been duly sworn to in accordance with law, hereby,
___________________________________________________ depose and say:
_________
1. That I am the _________________ in the above-entitled case and
have caused this ______________________________ to be prepared;
2. Plaintiff is suing defendant for:
that I read and understood its contents which are true and
correct of my own personal knowledge and/or based on
CAUSE OF ACTION
authentic records;

_____ Collection of Sum of Money _____

2. That I have not commenced any action or proceeding involving
Damages the same issue in the Supreme Court, the Court of Appeals or
any other tribunal or agency; that to the best of my knowledge,
no such action or proceeding is pending in the Supreme Court,
_____ Civil aspect of Criminal Case the Court of Appeals or any other tribunal or agency, and that,
if I should learn thereafter that a similar action or proceeding
has been filed or is pending before these courts or tribunal or
_____ Enforcement of Barangay Agreement
agency, I undertake to report that fact to the Court within five
(5) days therefrom.
Rule of Procedure for Small Claims Cases 13

IN WITNESS WHEREOF, I have hereunto set my hand this

3. Plaintiff’s cause of action arose from and is evidenced by: ____________ day of __________________, 20 __.
_______________________
ACTIONABLE DOCUMENT/S AFFIDAVIT/S
_____ Promissory Note/Undertaking How many: _____ Affiant

_____ Contract/Agreement SUBSCRIBED AND SWORN to before me this _________ day of

_____________, 20 ___ .
_____ Receipt
NOTARY PUBLIC
_____ Others
(citizenship) (civil status)
4. The principal obligation of defendant/s amounting to
P_____________________ became due and demandable on (Name)
______________.

Interest at the rate of ______% per annum/per month accrued

on the principal sum due from such date of default. FORM 2-SCC

5. Despite repeated demands by plaintiff, the latest of which was

REPUBLIC OF THE PHILIPPINES
on _______________, defendant has failed to pay the obligation.

_______________________________
6. _____(a) This claim has been referred to the appropriate
barangay authorities but no settlement was reached between
the parties. A Certificate to _______________________________

File Action was issued to the plaintiff, the original of which is _______________________________
attached hereto.
__________________________,
_____(b) The parties are not covered by the barangay mandatory
conciliation process under the Local Government Code of the Plaintiff,
Philippines.
vs. Civil Case No. ________________ For:
Prayer
________________________

WHEREFORE, plaintiff respectfully prays for judgment to be

rendered ordering defendant to pay plaintiff the amount of
__________________________, Defendant.
P________________________, with interest at the rate of ____% per
annum/ per month, from ___________, until fully paid.
___________________________; _____20___.
x- - - - - - - - - - - - - - - - - - - - - -x

PLAINTIFF
SUMMONS

39
 TO: ____________________ _____ Moral Damages of P______________________

____________________ _____ Exemplary Damages of P_____________________

____________________
_____ Costs of suit
GREETINGS:
Prayer
You are hereby required, within ten (10) days from receipt of this
Summons, to file with this Court and serve on plaintiff, your WHEREFORE, defendant respectfully prays for judgment to be
verified Response to the attached Statement of Claim. The form rendered dismissing the Statement of Claim, and granting the
of the required Response is attached hereto. counterclaims, ordering plaintiff to pay defendant the following
sums:
You are required to submit with your Response copies of
documents as well as affidavits of any witness to stand as your _____ Actual Damages of P______________________
evidence in this case.
_____ Moral Damages of P______________________
You must present the original documents on the day of the
hearing. A motion to dismiss is prohibited and shall not be _____ Exemplary Damages of P_____________________
entertained.
_____ Costs of suit
Your failure to respond within the 10-day period will authorize
the Court to render judgment based solely on the Statement of DEFENDANT
Claim.

(VERIFICATION AND CERTIFICATION

Witness my hand under the seal of this Court, this ____ day of
______, 20____, at _____________________, Philippines.
OF NON- FORUM SHOPPING, if with permissive counterclaim)

BRANCH CLERK OF COURT

FORM 4-SCC

FORM 3-SCC
REPUBLIC OF THE PHILIPPINES

REPUBLIC OF THE PHILIPPINES

_______________________________

_______________________________
_______________________________

_______________________________
_______________________________

_______________________________
__________________________,

__________________________,
Plaintiff,

Plaintiff,
vs. Civil Case No. ______________ For:

vs. Civil Case No. ______________ For: _______________________

_______________________
__________________________,
Defendant.
__________________________, Defendant.

x- - - - - - - - - - - - - - - - - - - - - -x

x- - - - - - - - - - - - - - - - - - - - - -x
NOTICE OF HEARING

RESPONSE
Once issues are joined upon the filing of the defendant’s
Response, this case will be called for Judicial Dispute
Defendant/s respectfully allege/s:
Resolution (JDR) and hearing before the Presiding Judge of this
Court on __________________ at ___________.
1. Defendant admits all the allegations in paragraph/s ________ of
the Statement of Claim.
Failure of the plaintiff to appear at the JDR and hearing shall
cause the dismissal of the Statement of Claim, and the
2. Defendant specifically denies all the allegations in paragraphs
defendant who appears shall be entitled to a judgment on his
________ of the Statement of Claim.
counterclaim. On the other hand, failure of the defendant to
3. Defendant opposes the grant of the prayer in the Statement of
appear at the JDR and hearing shall cause the Court to render
Claim for the following reasons, as supported by the attached
judgment based solely on the Statement of Claim.
documents and affidavits:

A party may not be represented by a lawyer, but may authorize

(enumerate defenses)
any other representative to appear in his behalf and participate
in all the proceedings as if the party represented were present.
4. As the Statement of Claim is baseless, defendant is entitled to For this purpose, the required authority should be evidenced by
the following counterclaims: accomplishing the attached Form 5-SCC (Special Power of
Attorney).
_____ Actual Damages of P______________________

WITNESS the HON. _________________________, Presiding Judge

40
of this Court, this ____ day of _____________, 20___, at 1. I am a resident of ___________________;
__________________________, Philippines.
2. My gross income and that of my immediate family does not
BRANCH CLERK OF COURT exceed __________________ ;

3. I do not own real property with an assessed value of more

FORM 5-SCC SPECIAL POWER
OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, _______________________, of legal age, single/married, with
residence at ___________________________ do hereby appoint,
name and constitute ________________________________, likewise
of legal age, singe/married, with residence at
________________________________ as my true and legal
representative to act for and in my name and stead and to
represent me during the hearing of Civil Case No. __________, to
enter into amicable settlement, to submit to alternative modes of
dispute resolution and to make admissions or stipulations of
facts and documents without further consultation from me.
I hereby grant my representative full power and authority to
execute and perform every act necessary to render effective the
power to compromise as though I myself have so performed it
and hereby approving all that he may do by virtue of these
presents.
than (amount as provided in the Revised Rules of Court, as
amended) as shown by the attached Certification issued by
the Office of the City/Municipal Assessor and the
City/Municipal Treasurer’s Office;
4. Due to financial constraint, I cannot afford to pay for the
expenses of a court litigation as I do not have enough funds
for food, shelter and other basic necessities;
5. Should the court render judgment in my favor, the amount of
the docket and other legal fees which I was exempted from
paying shall be a lien on the judgment, unless the court
orders otherwise.
WHEREFORE, premises considered, it is respectfully prayed
that I be exempted from the payment of docket and other legal
fees as indigent pursuant to Section 21, Rule 3 in relation to
Section 18, Rule 141 of the Revised Rules of Court.
Other reliefs just and equitable under the premises are likewise
prayedfor.
PLAINTIFF

In witness whereof, I hereunto set my hand this ______ day of

____________________, 20_______, at ________________.
_____________________________ FORM 7-SCC

Principal REPUBLIC OF THE PHILIPPINES

_____________________ _______________________________

Agent _______________________________

Witnesses: ________________________ _______________________________

___________________________
__________________________,
(ACKNOWLEDGMENT)
Plaintiff,

vs. Civil Case No. ______________ For:

FORM 6-SCC
_______________________
REPUBLIC OF THE PHILIPPINES

__________________________, Defendant.
_____________________________

_____________________________ x- - - - - - - - - - - - - - - - - - - - - -x

_____________________________ MOTION FOR APPROVAL OF COMPROMISE AGREEMENT

__________________________, The parties respectfully allege that:

Plaintiff, 1. Plaintiff filed this claim against defendant for:

vs. Civil Case No. ______________ For: _____________ collection of sum of money _____________

_______________________ damages

__________________________, Defendant. _____________ civil aspect of criminal case

_____________ enforcement of barangay agreement

x- - - - - - - - - - - - - - - - - - - - - -x

_____________ recovery of personal property

MOTION TO PLEAD AS INDIGENT

2. The parties have come to an amicable settlement and have

_____________________, unto this Honorable Court, respectfully
executed a compromise agreement with the following terms
alleges that:
and conditions. (copy terms and condition here)

41
3. The parties agree that the approval of this agreement by the Plaintiff Defendant
Court shall put an end to this litigation, except for purposes
of execution in case of default.

WHEREFORE, premises considered, the parties respectfully FORM 9-SCC

pray that the court approve this agreement and render
judgment on the basis thereof.
REPUBLIC OF THE PHILIPPINES

_______________________________________, 20_______.
_______________________________

_______________________ ________________________
_______________________________

Plaintiff Defendant
_______________________________

__________________________,

FORM 8-SCC
Plaintiff,

(Motion for voluntary dismissal of the claim and counterclaim) vs. Civil Case No. ______________ For:

REPUBLIC OF THE PHILIPPINES _______________________

_______________________________
__________________________, Defendant.
_______________________________

x- - - - - - - - - - - - - - - - - - - - - -x
_______________________________

MOTION FOR EXECUTION

__________________________,

Plaintiff/Defendant, unto this Honorable Court, respectfully

Plaintiff,
alleges that:

vs. Civil Case No. ______________ For:

1. On _______________, a judgment was rendered by the Court,
_______________________ the dispositive portion of which reads:

2. The judgment is final and unappealable.

__________________________, Defendant.
3. The defendant/plaintiff has not complied with the judgment.

x- - - - - - - - - - - - - - - - - - - - - -x WHEREFORE, premises considered, it is respectfully prayed

that a
JOINT MOTION

Plaintiff and defendant, unto this Honorable Court, respectfully

writ of execution be issued to implement the judgment of the
allege that:
Court dated __________________.

1. Plaintiff and defendant have mutually and voluntarily settled

_______________________________________, 20_______.
their claim and counterclaim to the entire satisfaction of each
_____________________________
other; and

Plaintiff/Defendant
2. The parties no longer have a cause of action against each
other.
NOTICE OF HEARING

WHEREFORE, premises considered, plaintiff and defendant

NAME OF DEFENDANT
respectfully pray that the plaintiff’s statement of claim and
defendant’s counterclaim incorporated in his response be
dismissed. (IF FILED BY PLAINTIFF)

Other reliefs just and equitable under the premises are likewise NAME OF PLAINTIFF
prayed for.
_______________________________________, 20_______. (IF FILED BY DEFENDANT)

_____________________________ NAME OF CLERK OF COURT.

____________________________
Please be notified that the undersigned will submit the foregoing
motion for the consideration and approval of the Court on
Plaintiff Defendant
_________________ at
To the Branch Clerk of Court: _______________________________________, 20_______.
________________________
Please submit the foregoing motion for the consideration of the
Court without hearing and further argument from the parties. Plaintiff/Defendant

__________________________ _________________________

42
FORM 10-SCC _______________________________________, 20_______.

REPUBLIC OF THE PHILIPPINES ______________________________

_______________________________ JUDGE

_______________________________

_______________________________ FORM 12-SCC

__________________________, REPUBLIC OF THE PHILIPPINES

Plaintiff, _______________________________

vs. Civil Case No. ______________ For: _______________________________

_______________________ _______________________________ __________________________,

Plaintiff,
__________________________, Defendant.

vs. Civil Case No. ______________ For:

x- - - - - - - - - - - - - - - - - - - - - -x
_______________________

AGREEMENT
__________________________, Defendant.
Having failed to resolve the matter through Judicial Dispute
Resolution, plaintiff and defendant hereby agree that Judge
_________________ shall continue with the hearing on the instant x- - - - - - - - - - - - - - - - - - - - - -x
matter and hereby waive their right to have a different judge
hear the case. _______________________________________, DECISION BASED ON COMPROMISE AGREEMENT
20_______.
Plaintiff filed this case against defendant for
___________________________ _______________________ Plaintiff _____________________ in the amount of
Defendant
________________________.

Defendant denied plaintiff’s claim on the ground of

_________________ and set up a counterclaim for
FORM 11-SCC _______________________.

(Referral to pairing judge) The parties, however, reached an amicable settlement and
submitted to the court a compromise agreement, the terms and
REPUBLIC OF THE PHILIPPINES conditions of which are as follows:

_______________________________ It appearing that the agreement is not contrary to law, morals,

good customs, public moral and public policy, and pursuant to
_______________________________ Articles 2028 and

_______________________________ 2037 of the Civil Code of the Philippines, the same is hereby
APPROVED and ADOPTED as the Decision of this court.
__________________________,
The parties are hereby ordered to faithfully comply with the
Plaintiff, terms and conditions of the agreement.

vs. Civil Case No. ______________ For: _______________________________________, 20_______.

_______________________ ________________________

JUDGE
__________________________, Defendant.

x- - - - - - - - - - - - - - - - - - - - - -x
FORM 13 – SCC

ORDER
REPUBLIC OF THE PHILIPPINES

In view of the failure of judicial dispute resolution and there

_______________________________
being no agreement from the parties to let the undersigned
continue hearing the instant case, the record of this case is
transmitted to the Office of the Clerk of Court for immediate _______________________________
referral by the Executive Judge to the Pairing Judge for hearing
and decision pursuant to Section 21 of the Rule of Procedure for _______________________________
Small Claims Cases.
__________________________,
SO ORDERED.

43
Plaintiff,
vs. Civil Case No. ______________ For:
_______________________
__________________________, Defendant.
x- - - - - - - - - - - - - - - - - - - - - -x
DECISION
This is a small claims action for (state which of the claims or
demands below is the subject of the action filed):
[For money owed under any of the following:
1. Contract of lease;
2. Contract of loan;
3. Contract of services;
4. Contract of sale; or
5. Contract of mortgage;
For damages arising from:
1. Fault or negligence;
2. Quasi-contract; or
3. Contract;
The enforcement of a barangay amicable settlement or an
arbitration award involving a money claim covered by this
Rulepursuant to Section 417 of Republic Act 7160, otherwise
known as The Local Government Code of 1991].
Plaintiff alleges that (state material allegations and prayer in the
Statement of Claim).
Defendant alleges that (state reasons for denial of the claim and
other material allegations in the Response including
counterclaims, if any).
On (date), both parties appeared during the hearing conducted
by (state name of Judge who conducted the JDR. State whether
parties appeared personally or through a specially authorized
representative).
Considering the failure of the parties to arrive at any settlement
of the dispute, this court proceeded with the hearing of the case
which was terminated on __________________.
The issue to be resolved by this
court is whether
_______________________________________________________ ______.
Plaintiff’s evidence consists of: (state documents of plaintiff,
affidavits submitted, if any, and statements made by plaintiff
and witnesses under oath during the hearing).
Defendant’s evidence consists of: (state documents of defendant,
affidavits submitted, if any, and statements made by defendant
and witnesses under oath during the hearing).
This court finds that the claim of plaintiff (or defendant in a
counterclaim) is (state whether meritorious or devoid of merit)
under Article/Section (state the applicable provisions of law) or
pursuant to established jurisprudence (cite applicable
jurisprudence). In this case, this court found that (state first the
factual findings established by the evidence and then the legal
conclusions).
44
Wherefore, the (claim/counterclaim) is (granted/denied). This
court orders ____________________ to pay to
_______________________ the amount of (state the monetary
award or damages) with interest of (if applicable under Civil
Code and/or settled jurisprudence) until fully paid.
SO ORDERED.
(Date of decision.)
(Signature)
Presiding Judge (or Pairing Judge in the absence of written
agreement of theparties that the case shall beheard by the
Presiding Judgewho conducted the JDR)
Copy furnished:
All parties
Office of the Clerk of Court of ____________
RATIONALE of the Proposed Rule of Procedure for Small
Claims
Cases
A. Introduction
The most significant recurring theme of every program for
judicial reform of the Supreme Court is the pressing need for a
more accessible, much swifter and less expensive delivery of
justice.
Undeniably, the slow grind of the wheels of justice is the result
of a variety of factors, foremost of which is the perennial
congestion of court dockets which has transformed court
litigation into a protracted battle, that invariably exhausts the
time, effort and resources of party-litigants, especially the poor.
Many strategies have been devised to unclog heavy court
dockets, and one such approach is the use of mandatory Pre-
trial and Alternative Dispute Resolution mechanisms such as
mediation, arbitration and conciliation. Another scheme that
has been widely used in many foreign legal systems but which
has yet to be tried in the Philippines is the small claims case
processing method used by small claims courts, often referred
to as the “People’s Court,” as it comes most directly into contact
with the citizenry of a jurisdiction.
Small claims courts are courts of limited jurisdiction that hear
civil cases between private litigants. Courts authorized to try
small claims may also have other judicial functions, and the
name by which such a court is known varies by jurisdiction: it
may be known by such names as county court or magistrate’s
court. Small claims
courts can be found in Australia, Canada, Ireland, Israel, New
Zealand, South Africa, Hong Kong, Singapore, the United
Kingdom and the United States.
B. The History and the Reforms of Small Claims Court
1. In the United States – For almost a century now, small
claims courts have provided a form of alternative
dispute resolution (ADR) in the United States.
Originating around 1912 or 1913, these courts were
established primarily as a means for small businesses to
collect money from borrowers through a process that was
faster, less formal, and less expensive than traditional civil
litigation. Following the lead of the establishment of the
initial small claims court in Kansas, USA in 1912 or 1913,
every state in the United States has created some form of a
small claims court system.
 Although the financial claims limits, methods of procedure,
and overall structure vary from state to state, the concept
is essentially the same, i.e., that relatively minor disputes,
involving dollar amounts that are insufficient to warrant
processing the case through the normal court procedure,
justify expeditious and simplified handling.
The consumer justice reform movements of the 1960s and
1970s brought renewed research and interest in the small
claims courts. This movement emphasized the need for
reform of small claims courts to facilitate the adjudication
of consumer grievances.
Although “consumer justice reformers” were concerned that
businesses and corporations were more likely to use attorneys
in small claims courts thereby placing inexperienced individual
defendants at a disadvantage, studies showed that defendants
with an attorney were more likely to win against plaintiffs than
unrepresented defendants, whereas plaintiffs without attorneys
did just as well as represented plaintiffs against unrepresented
defendants.
The result was an appraisal of the need to bar attorneys and
collection agencies from the small claims courts.
Small claims courts in the United States are often considered
courts of equity and are not necessarily bound by the letter of
the law. These courts have flexibility to use more holistic
approaches to problem solving and dispute resolution than what
is typical. Most judges act according to what makes sense to
them, even if this means setting aside legal formalities.
Moreover, traditional rules of evidence and court processes do
not apply.
The rules of small claims courts emphasize conciliation and
pragmatism over winning, and rules of evidence and civil
procedure have been simplified to allow maximum access to the
courts by individuals unable to afford an attorney.
2. Small Claims Courts in Canada – All provinces in
Canada have procedures for small claims. In general,
there are two different models. In most provinces, as in
British Columbia, Alberta, and new Brunswick, small
claims courts operate independently of the superior
courts. In other jurisdictions, the small claims courts
are either
branches or divisions of the superior courts
The small claims courts are meant to be an easier and less
expensive way to resolve disputes than in the superior
courts. Small Claims Court procedure is regulated both by
provincial legislation and rules in most provinces. It is
simplified and less costly with no strict pleading
requirements and formal discovery process.
tort gradually increased from £50 in 1888 to £5,000 in
1984.
The purpose and structure of the county court system has in
many ways remained the same since 1846. The aim is still to
make civil justice available locally – there are now 223 county
courts in England and Wales. They have continued to be
responsive to the needs of smaller cases which, although small
in terms of their financial value, are important to the litigants
involved. However, recent decades have seen two major changes
in relation to small claims – first, the introduction of a dedicated
small claims procedure in 1973 and secondly, the introduction
of the Civil Procedure Rules reforms of 1998 with emphasis on
proportionality.
Since January 1996, when the small claims limit in England
and Wales was trebled overnight to £3,000, district judges have
been expected to play the role of “interventionist” and assist
litigants in presenting their own cases personally at small
claims hearings. Like adjudicators in other parts of the world,
district judges in these countries have been encouraged to
intervene to an increasing extent at small claims hearings. Such
interventionism is, indeed, vital and although there may be wide
variations between jurisdictions in the methods that are
adopted to deal with small claims, the idea of the adjudicator
freely entering the arena of the dispute to assist unrepresented
litigants is fundamental in almost all matters about small
claims.
4. Small Claims Tribunals in Singapore – The Small
Claims Tribunals in Singapore have been in operation
since 1 February 1985. The Tribunals have fulfilled an
integral role in providing the community with
accessible justice for civil claims involving small
amounts. Various features and programs have been
put in place to enhance access to justice for the
community, by removing barriers such as cost, delay,
distance, time and inconvenience. The Tribunals,
constituted as part of the Subordinate Courts of
Singapore, were established for the primary purpose of
providing a quick and inexpensive avenue for the
resolution of small claims arising from disputes
between consumers and suppliers. There was a need
for a less expensive and less formal forum to deal with
such small claims. Hence, in 1985, the Small Claims
Tribunals Act was passed, which authorized the
setting up of one or more Tribunals to help consumers
who have claims of up to $2,000 relating to disputes
arising from contracts for the sale of goods or the
provision of services.

3. Small Claims Courts in England and Wales – From

early times, England had a tradition of local courts
where ordinary men could pursue justice in the form of
civil claims without the aid of lawyers. Some were set
up by local statutes, others by custom. These local
courts could not keep pace with the changes in society
brought about by the Industrial Revolution. By the
1830s, the decade of great liberal reform, there was a
great public awakening to the urgent need for
constitutional reform in the administration of justice.
The result was the County Courts Act of 1846,
described in its preamble as an “Act For The More
Easy Recovery of Small Debts and
Demands in England.” It was initially a poor man’s
court. Andrew Amos, the first judge at Marylebone
County, described regular litigants as being “a great
proportion of the poorer classes, gaining their
livelihoods by bricklaying, gardening or other out of
door occupations and who subsist upon credit in the
winter months, and complaints against whom are
usually issued in the summer months.” The county
court’s jurisdiction for claims brought in contract and

45
 A civil action may either be ordinary
or special. Both are governed by the
rules for ordinary civil actions, subject
to the specific rules prescribed for a
special civil action.

xxxxx

Rule 01 What is an action?

GENERAL PROVISIONS
SECTION 1. Title of the Rules. These Rules shall
be known and cited as the Rules of Court.
The Rules of Court do not have retroactive
effect. They can, however, be made
applicable to cases pending at the time of
their passage and therefore are retroactive
in that sense.
The rule-making power of the SC has the following
limitations:
1) Simplified and inexpensive procedure for the
speedy disposition of cases;
2) Uniform for all courts of the same grade; and
3) Shall not diminish, increase or modify
substantive rights (Art. VIII Sec. 5[5], 1987
Constitution.
An action is the legal and formal demand of one’s right from
another person made and insisted upon in a court of justice.
(Bouvier’s Law Dictionary)
One party prosecutes another for the enforcement or protection
of a right or the prevention or redress of a wrong.
What is a claim?
It is a right possessed by one against another.
The moment said claim is filed before a court, the claim is
converted into an action or suit.
Action and suit
In this jurisdiction, it is settled that the terms “action” and
“suit” are synonymous. (Lopez v. Compania de Seguros, 16
SCRA 855).

In the interest of just and expeditious
proceedings, the Supreme Court may
suspend the application of the Rules
of Court and except a case from its
operation because the Rules were
precisely adopted with the primary
objective of enhancing fair trial and
expeditious justice.
SEC. 2. In what courts applicable. These
Rules shall apply in all the courts,
except as otherwise provided by the
Supreme Court.
Section 2, states in what court or courts the rules apply as it
says “these rules shall apply in all the courts except as
otherwise provided by the Supreme Court.” Meaning, applicable
to all courts except when the SC say otherwise.
Civil Action and Criminal Action
A CIVIL ACTION is one by which a party sues another for the
enforcement or protection of a right, or the prevention or redress
of a wrong. (Sec. 3[a] Rule 1). So the purpose of a civil suit is to
enforce or protect your right or to prevent or redress a wrong.
A criminal action “is one by which the State prosecutes a
person for an act or omission punishable by law” (Sec. 3[b] Rule
1)
It has been ruled that …”proceedings are to be regarded as
criminal when the purpose is primarily punishment, and civil
when the purpose is primarily compensatory…” (People vs.
Godoy @$# SCRA 64).
CLASSIFICATION OF CIVIL ACTION

For example: The SUMMARY RULES on procedure which is I. As to NATURE (Section 3 [a])
applicable to some cases in the MTC. a.) Ordinary Civil Actions
b.) Special Civil Actions
Another example of when the SC says otherwise is Section 4,
that the rules shall not apply to election cases, land II. As to CAUSE or FOUNDATION:
registration, cadastral, naturalization, insolvency proceedings a.) Real Actions
and other cases not herein provided for except by analogy. This b.) Personal Actions
is actually not a new provision. It used to be in Rule 143, now it c.) Mixed Actions
is in Rule 1.
III. As to PLACE OF FILING
Sec. 3. Cases governed. These Rules a.) Local Actions
shall govern the procedure to be b.) Transitory Actions
observed in actions, civil or criminal,
and special proceedings.
IV. As to OBJECT
a.) Action In Personam
xxxxxx
b.) Action In Rem
How come it mentions criminal cases and defines criminal
c.) Action Quasi In Rem
actions when it is supposed to be 1997 Rules on Civil
Procedure?

NO, Rule 1 is the general provision for the entire Rules of Court. I. CLASSIFICATION AS TO NATURE
You look at the title, “These rules shall be known as the ‘Rules
of Court.’” This is the common denominator from the first to the ORDINARY CIVIL ACTIONS and SPECIAL CIVIL
last ACTIONS
Rule. That’s why it says there ‘special proceedings,’ ‘civil cases’
and ‘criminal cases.’ The special civil actions are governed by Rules 62 to 71. Any
action not among those mentioned is automatically ordinary.
xxxxx
What are the special civil actions?
(a) A civil action is one by which a
party sues another for the Rules 62 to 71:
enforcement or protection of a right,
or the prevention or redress of a
• Interpleader,
wrong.
• Declaratory Relief,

46
 • Certiorari, Prohibition, Mandamus,
• Quo Warranto,
• Expropriation,
• Foreclosure of Mortgage,
• Partition,
• Forcible Entry, Unlawful Detainer and  such as actions for a sum of money, or damages arising from
Contempt.
There is a new one – Review of Final Decisions or Resolutions of
the COMELEC and COA under Rule 64, but actually it says
there, it is governed by Rule 65 which governs Certiorari.
Q: What is so important in distinguishing a special civil action
from an ordinary civil action?
A: What makes an action special is simply because of the fact
that there are some specific rules prescribed for them which are
not found in other rules. But to say that the rules on ordinary
civil actions do not apply to special civil actions is false. The law
is very clear. Both are governed by the rules on ordinary civil
actions subject to the specific rules.
Therefore, in case of conflict between the specific rule governing
a particular type of civil action and the ordinary, then you follow
the specific provision. But if the rules on special civil actions are
silent, apply the ordinary rules.
Give an example of a case where in the absence of a special
provision in the rules on special civil actions the court had to
apply the rules on ordinary civil actions by analogy. The case of
AMBERTI vs CA - 195 SCRA 659 [1991]
FACTS: This case involved a petition for certiorari (special
civil action under Rule 65) and then before the respondent
could answer the petition, he withdrew the petition. Later
on he changed his mind and re-filed the petition. The
question that was asked by the SC is when you file a special
civil action for certiorari and then before the other party
could answer you withdraw it, is the withdrawal with or
without prejudice? Can you re-file it?
There is no rule in Rule 65 answering that question so the SC
had to resort to the ordinary rules by analogy.
HELD: Certiorari is similar to appeal although it is not
really an appeal. And the SC looked at the law on appeal.
What happens when you perfect your appeal and then later
on you withdraw your appeal? What will happen to the
order or judgment? Rule 50 says that if you withdraw the
appeal, the judgment appealed from will now become final
and executory. Therefore, since it is now final and
executory, you cannot change it anymore.
“Applying the foregoing rules in a supplementary manner (or
by analogy), upon the withdrawal of a petition in a special
civil action before the answer or comment thereto has been
filed, the case shall stand as though no appeal has been
taken, so that the judgment or order of the lower court
being questioned becomes immediately final and executory.
Thus, a resolution granting the withdrawal of such a
petition is with prejudice and petitioner is precluded from
bringing a second action based on the same subject matter.”
Now, there are other classifications of civil actions which are not
expressly stated in Section 3. The only one stated there is
ordinary and special.
CLASSIFICATION AS TO CAUSE OR FOUNDATION:
REAL, PERSONAL or MIXED ACTIONS
Real Action
A REAL ACTION is briefly described as an action where the
issue or the subject involved is title to, ownership, possession of
or interest over a real property like accion publiciana, forcible
entry, unlawful detainer, foreclosure of mortgage or real
property, partition of real property. (Sec. 1, R 4) (c.f. Section 19,
BP 129 – controversy relates to real property)
It is founded on privity of real estate and filed in the court of the
place where the property or any part thereof is situated.
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Personal action
All other actions or, when the issue is not one of those –
meaning, it is founded on privity of contract, or on quasi-delict,
breach of a contract, or for the enforcement or resolution of a
contract, or for recovery of personal property, these are the
PERSONAL ACTIONS. (Casilan vs. Tomassi, 90 Phil. 765;
Cachero vs. Manila Yellow Taxicab, 101 Phil. 523; Bautista vs.
Piguing, L-10006, Oct. 31, 1957)
It is filed in the court where the plaintiff or any of the
defendants resides, at the option of the plainitff.
Mixed Action
Some textwriters give a third classification: the MIXED ACTIONS
where there is a mixture of real and personal actions. Mixed
actions are such as pertain in some degree to both real and
personal and, therefore, are properly reducible to neither of
them, being brought for the specific recovery of land and for
damages sustained in respect of such land. (Dela Cruz vs.
Seminary of Manila, 18 P{hil. 330)
Like an action for recovery of a piece of land with damages it is a
mixed action. However, it is more of real rather than personal. If
the damage is only incidental, then it is more of a real action
rather than a personal action like the case of TACAY.
In a real action realty or an interest therein is the subject matter
of the action.
However, not every action involving a real property is a real
action because the realty may only be incidental to the subject
matter of the suit. To be a “real” action, it is not enough that the
action must deal with real property. It is important that the
matter in litigation must also involve any of the following issues:
title to, ownership, possession, partition, foreclosure of
mortgage or any interest in real property.
Examples:
• An action for damages to real property, while involving a
real property, does not involve any of the issues
mentioned.
• An action to recover possession of real property plus
damages is a real action because possession of the real
property is involved. The aspect of damages is merely an
incidental part of the main action, i.e., recovery of
possession of real property. However, an action to
recover possession of a personal property is a personal
action.
• Where the allegations as well as of the complaint do not
claim ownership of the lots in question or ask for
possession of the same but instead seeks for the
execution of a deed of sale by the defendants in favor of
the plaintiff, the action is a personal action. (Adamos v.
J.
M. Tuazon & Co., Inc. 25 SCRA 529)
• An action for specific performance is a personal action as
long as it does not involve a claim of or recovery of
ownership of real property. (Siosoco v. CA, 303 SCRA
186 citing La Tondena Distillers v. Ponferrada, 264 SCRA
540)
However, where a complaint is denominated as one of specific
performance but nonetheless prays for the issuance of a deed of
sale for a parcel of land for the plaintiff to acquire ownership of
the land, its primary objective and nature is one to recover the
parcel of land itself and thus, is deemed a real action. (Gochan
v. Gochan, 372 SCRA 356)
• If the action is denominated as one for specific
performance, but the plaintiff actually seeks for the
issuance of a deed of assignment in his favor of certain
shares of stocks to regain ownership and possession of
said shares, the action is not one for specific
performance but a personal action for the recovery or
property. The docket fee therefore, should be computed
based on the value of the property and not based on the
 docket fee for specific performance (National Steel
Corporation vs. CA 302 SCRA 522).
• Where it is alleged in the complaint that the defendant
breached the contract so that the plaintiff prays that the
contract be rescinded and that the defendant be ordered
to return possession of the hacienda to the plaintiff, the
ultimate purpose or end of the action is to recover
possession of real property and not a mere breach of
contract (De Jesus vs. Coloso 1 SCRA 272)
• Where the action to annul or rescind a sale of real
property has as its fundamental and prime objective the
recovery of real property, the action is real (Emergency
Loan Pawnshop Inc. vs. CA 353 SCRA 89).
• Where an award of a house and lot to the plaintiff was
unilaterally cancelled, an action that seeks to annul the
cancellation of the award over the said house and lot is a
personal action. The action does not involve title to
ownership or possession of real property. The nature of
the action is one to compel the recognition of the validity
of the previous award by seeking a declaration that the
cancellation is null and void. (Hernandez v. DBP, 71
SCRA
290)
• An action to foreclose a real estate mortgage is a real
action, but an action to compel the mortgagee to accept
payment of the mortgage debt and to release the
mortgage is a personal action. (Hernandez v. Rural Bank
of Lucena,
Inc. 81 SCRA 75)
• An action to annul a contract of loan and its accessory
real estate mortgage is a personal action. In a personal
action, the plaintiff seeks the recovery of personal
property, the enforcement of a contract or the recovery of
damages. In contrast, in a real action, the plaintiff seeks
the recovery of real property, or, as indicated in Section
2(a), Rule 4 of the then Rules of Court, a real action is an
action affecting title to real property or for the recovery of
possession, or for partition or condemnation of, or
foreclosure of mortgage on, real property (Chua vs. Total
Office Products and Services [Topros], Inc.,471 SCRA
500).
• Although the main relief sought in the action is the
delivery of the certificate of title, said relief, in turn
depends upon who, between the parties, has a better
right to the lot in question. It is not possible for the court
to decide the main relief without passing upon the claim
of the parties with respect to the title to and possession
of the lot in question. The action is a real action (Espineli
vs. Santiago 107 Phil 830).
• Where the sale is fictitious, with absolutely no
consideration, it should be regarded as a non-existent
contract. There being no contract between the parties,
there is nothing in truth to annul by action. The action,
therefore, cannot be an action for annulment but one for
recovery of a fishpond, a real action (Pascual vs.
PASCUAL 73 Phil. 561).
Significance of the distinction
The distinction between a real action and a personal action is
important for the purpose of determining the venue of the
action. Questions involving the propriety or impropriety of a
particular venue are resolved by initially determining the nature
of the action, i.e., if the action is personal or real.
A real action is “local”, i.e., its venue depends upon the location
of the property involved in the location. “Actions affecting title to
or possession of real property, or interest therein, shall be
commenced and tried in the proper court which has jurisdiction
over the area wherein the real property involved, or apportion
thereof is situated.” (Sec. 1 Rule 4)
A personal action is ‘transitory,’i.e., its venue depends upon
the residence of the plaintiff or the defendant at the option of
the plaintiff. A personal action “may be commenced and tried
where the plaintiff or any of the principal plaintiffs resides or
where the defendant or any of the principal defendants resides,
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or in the case of a non-resident defendant, where he may be
found, at the election of the plaintiff.” (Sec. 2 Rule 4).
Hence, if the question involves the venue of an action, the
analysis will necessarily involve the following steps:
(a) A determination whether the action is real or personal
(b) An application of the rules on venue under Rules 4.
Thus, an action for a sum of money, instituted by a resident of
Manila against a resident of Quezon City, shall be filed either in
Manila or Quezon City at the election of the plaintiff because the
action is personal.
An action to annul a sale of a land located in Baguio City where
recovery of ownership is essentially the material issue in the
case, must be filed in Baguio City. The action is a real action
and must be filed in the place where the property is situated
regardless of the residence of the parties (Emergency Loan
Pawnshop Inc. vs. CA 353 SCRA 89).
CLASSIFICATION AS TO THE PLACE OF FILING:
LOCAL ACTIONS and TRANSITORY ACTIONS
LOCAL ACTION is an action which can only be instituted in a
particular place.
Good examples of local actions are real actions. Real actions are
also automatically local actions. They can only be instituted in
the place where the property is situated. This is already
provided by law (e.g. accion publiciana, forcible entry, unlawful
detainer – can only be filed where the land is situated.)
TRANSITORY ACTIONS are those which follow the party
wherever he may reside. (1 Am. Jur. 430) Personal actions are
transitory – its filing is based on where the plaintiff or where the
defendant resides at the option or election of the plaintiff. It is
based on the residence of the parties.
CLASSIFICATION AS TO OBJECT OR PURPOSE
ACTIONS IN PERSONAM, IN REM and QUASI IN
REM
ACTIONS IN PERSONAM vs. ACTIONS IN REM
Definition
In personam action
“If the technical object of the suit is to establish a claim
generally against some particular persons, with a
judgment which, in theory, at least, binds his body or to
bar some individual claim or objection, so that only
certain persons are entitled to be heard, the action is IN
PERSONAM.” (Grey Alba vs. Dela Cruz, 17 Phil. 49;
Sandejas vs. Robles, 81 Phil. 421)
An example is an action for specific performance; action for
breach of contract
In rem action
But, “if the object of the suit is to bar indifferently all who
might be minded to make an objection of any sort
against the rights sought to be established, and if
anyone in the world has a right to be heard on the
strength of alleging facts which, if true, show an
inconsistent interest, the action is IN REM.” (Grey Alba
vs. Dela Cruz, 17 Phil. 49; Sandejas vs. Robles, 81 Phil.
421)
An example is a probate proceeding, cadastral proceeding.
The purpose of a proceeding in personam is to impose
through the judgment of a court, some responsibility or
liability directly upon the person of the defendant
(Domagas vs. Jensen 448 SCRA 663)
Examples:
A) An action for sum of money;
B) An action for damages.
In an action in personam, no other than the defendant is sought
to be held liable, not the whole world.
To simplify the definition:
ACTION IN PERSONAM is one where the purpose is to bind the
parties or where any judgment that the court will render in that
case binds only the parties to the action and their privies or
their successors-in-interest.
ACTION IN REM is one where the purpose is to bind any and
everyone or where the judgment which the court will render in
the case binds not only the parties to the case but the whole
world, then the action is in rem.
To follow the language of the SC in the case of:
CHING vs. CA – 181 SCRA 9
HELD: “Actions in personam and actions in rem differ in
that the former are directed against specific persons and
seek personal judgments, while the latter are directed
against the thing or property or status of a person and seek
judgments with respect thereto as against the whole world.”
Action in personam
EXAMPLE:
An action for the Recovery of land or accion publiciana.
The case is filed by P against D and after trial the court
rendered judgment in favor of P ordering D to deliver the land to
P. But here comes X claiming the same property. Is X barred
from making his claim because the court, in the case of P vs. D
already declared that P is entitled to the property? Is X bound
by that judgment?
A: NO, because X is not a party to that case. She cannot be
bound by a judgment where she is not a party. Hence, the
action between P and D is an action in personam.
Action in Rem
1) Action for annulment of marriage or declaration of nullity
of marriage. Suppose the husband (H) files a case
against his wife (W) to annul their marriage. After trial,
the court rendered judgment annulling the marriage and
it became final. So the parties are now both SINGLE. H
meets another girl, A, and courted her and proposed
marriage.
Can A say the she I cannot marry H because I know
you are married and as far as I am concerned I am not
bound by the judgment of annulment in the case
between P and D because she was a not a party
therein? When the court ruled in the case between H
and W that the marriage is annulled is that judgment
binding only on H and W, the parties therein
A: No it binds the whole world or anybody.
2) When an illegitimate child files a case against the father,
for compulsory recognition and got a favorable judgment
his/her status as a recognized child is not only binding
on his/her father but is binding on the whole world.
Take note that an action in rem and in personam have
often been confused with the classification of real and
personal action, that an action in personam is also a
personal action, or, when an action is in rem it is also a
real action.
It is wrong. The basis of the classification is different. An
action could be as to cause or basis a real action. As to
object, it could be in personam. In the same manner, it
could be a personal action but an action in rem.
3) E files a case against C to recover the possession of a
piece of land. It is a REAL action because the subject is
possession or ownership of real property. But because
the purpose is to bind only E and C it is also an action IN
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PERSONAM. It is a real action as to cause, but as to
object, it is in personam.
4) P filed a case to annul his marriage with his wife D. It is
a PERSONAL action because it does not involve title to,
ownership etc., of his real property. It is about status.
But it is also IN REM because the judgment therein is
binding against the whole world.
5) An action for ejectment is a real action because it
involves the issue of possession of real property. It is
also, however, an action in personam because the action
is directed against a particular person who is sought to
be held liable
(Sec. 1 Rule 4; Domagas vs. Jensen 448 SCRA 663)
6) An action for delaration of nullity of a marriage is a
personal action (Tamano vs. Ortiz 291 SCRA 584;
Romualdez-Licaros vs. Licaros 401 SCRA 762) because it
is not founded on real estate. It is also in rem action
because the issue of the status of a person is one
directed against the whole world. One’s status is a
matter that can be set up against anyone in the world.
On the other hand, an action for damages is both a
personal and in personam action.
7) An action for specific performance is an action in
personam (Jose vs. Boyon 414 SCRA 217). An action for
specific performance and/or rescission is not an action
in rem (Gomez vs. CA 425 SCRA 98).
8) A cadastral proceeding is an action in rem (In Re Estate
of Johnson 39 Phil. 156).
9) A land registration proceeding is an action in rem.
Hence, the failure to give a personal notice to the owners
or claimants of the land is not a jurisdictional defect. It is
the publication of such notice that brings in the whole
world as a party in the case and vests the court with
jurisdiction (Adez Realty Inc. vs. CA 212 SCRA 623; Ting
vs. Heirs of Diego Lirio 518 SCRA 263).
10) An action to recover real property is a real action. It is
however, also an action in personam for it binds only a
particular individual (Republic vs. CA 315 SCRA 600)
QUASI IN REM
Text writers gave a sort of third classification as to object. This
is called action quasi in rem. “QUASI” means almost. So, ‘quasi
in rem’ is almost in rem. Actually, it is in personam but almost
in rem.
Q: Define an action quasi in rem.
A proceeding to subject the interest of a named defendant over a
particular property to an obligation or lien burdening it.
Judgment is binding upon particular persons.
An action quasi in rem is actually in personam because it is
directed only against a particular individual but the purpose of
the proceeding is to subject his property to the obligation or lien
burdening it. The object of the case is the sale or other
disposition of property of the defendant over which you have a
right or lien over the property.
An action quasi in rem is one wherein an individual is named as
defendant and the purpose of the proceeding is to subject his
interest thereof to the obligation or lien burdening thje property
(Asiavest Limited vs. CA 296 SCRA 539).
The object of an action quasi in rem is the sale or disposition of
the property whether by attachment, foreclosure or any other
form of remedy (Banco Espanol-Filipino vs. Palanca 37 Phil.
921).
Examples of actions quasi in rem:
(a) Action for partition; (b)
Action for accounting.
(c) Such actions are essentially for the purpose of
affecting the defendant’s interest in the property and
not to render a judgment against him (Valmonte vs. CA
252 SCRA 92);
(d) attachment;
 (e) foreclosure of mortgage (Banco Espanol Filipino vs.
Palanca 37 Phil. 921; Sahagun vs. CA 198 SCRA 44).
ILLUSTRATION: An action to foreclose a mortgage is the best
example of a civil action quasi in rem because there is a
defendant (mortgagor) and the object of the case is to have the
property mortgaged sold or disposed of in order to satisfy the
mortgage lien of the mortgagee. It is in personam because it is
directed only against the person who mortgaged to you but once
the property is foreclosed, practically everybody has to respect
it. That’s why it is called quasi in rem.
Or, to borrow the language of the SC in simplifying the term
quasi in rem, quasi in rem means ‘against the person in respect
to the res, against the mortgagor in respect to the thing
mortgaged.’
Importance of the distinction
It determines whether the court must acquire jurisdiction over
the person of the defendant and thus determine the mode of
serving summons.
If the action is in personam the court must acquire jurisdiction
over the person of the defendant, thru personal service of
summons. Service of summons by publication is not allowed.
But if it is in rem jurisdiction over the person of the defendant is
not required hence service of summons by publication is
sufficient.
Such is also true to quasi in rem action. What is important is
that the court acquires jurisdiction over the res.
CIVIL ACTIONS vs. SPECIAL PROCEEDINGS
Q: Define a special proceeding.
A: Rule 1, Section 3 [c]:
c) A special proceeding is a remedy by
which a party seeks to establish a status, a
right, or a particular fact. (2a, R2)
Special proceedings should not be confused with a civil action.
Special Proceedings are governed by Rules 72-109 of the Rules
of Court.
Distinguish a civil action from a special proceeding.
A: The following:
1.) A CIVIL ACTION is one by which a party sues
another for the enforcement or protection
of a right, or the prevention or redress of
a wrong, whereas,
A SPECIAL PROCEEDING is a remedy by
which a party seeks to establish a status,
a right, or a particular fact;
2.) In a civil action, there are two (2) definite
and particular adverse parties, the party
who demands a right, called a plaintiff,
and the other whom the right is sought,
called a defendant, whereas,
In a SPECIAL PROCEEDING, while there is a
definite party petitioner, there is no
definite adverse party as the proceeding
is usually considered to be against the
whole world;
3.)
A CIVIL ACTION requires the filing of formal
pleadings, whereas
In a SPECIAL PROCEEDING, relief may be
obtained by mere application or petition;
The period to appeal in CIVIL ACTIONS is
4.) generally
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15 days and the requirement is the filing of a
notice of appeal, whereas
In SPECIAL PROCEEDINGS the period to appeal
is 30 days and aside from notice of appeal,
the law requires the filing of a record on
appeal.
Of course the basic distinction is found in Section 3 – a civil
action is one by which a party sues another for the enforcement
or protection of a right, or the prevention or redress of a wrong.
Whereas, a special proceeding is a remedy by which a party
seeks to establish a status, a right, or a particular fact.
The object of a civil action is to enforce or protect a right or to
prevent or redress a wrong. But the object of a special
proceeding is only to establish a status, a right or a particular
fact.
If a creditor sues the debtor to collect an unpaid loan, is that a
civil action or a special proceeding? That is a civil action
because the creditor wants to enforce or protect his right to
collect. The creditor is compelling the debtor to pay. It is
adversarial.
A good example of a special proceeding is a petition for
ADOPTION. It is a special proceeding because the purpose is to
establish a status of paternity and filiation between the adopter
and adopted who may not be related to each other.
What is adoption?
This is how an author describes it.
“Adoption is one of the sacred mysteries of
the law. It concerns the making of a natural
person as a legitimate child of another person
without the intervention of sex. A man
becomes a father of the child he did not sire.
A woman becomes the mother of a child she
did not bear. It is through the magic or
fiction of the law that adopters become
parents of children unrelated to them by
blood, or if related, the relationship is one of
illegitimacy.”
So you can adopt you own illegitimate child for the purpose of
improving his status. So, when you file a petition for adoption,
you are not suing somebody to enforce or protect a right or
prevent or redress a wrong. The purpose is to create a status of
parent and child between 2 people who are not related to each
other.
And when you file a petition for adoption, you are not filing a
case against anybody. The case is not a fight between two
parties. There is a petitioner, the one who files, but there is no
definite defending party. But it is directed against the whole
world because once the adoption is granted, then, as far as the
whole world is concerned, they have to respect the status of the
adopted as a child of the adopter. It is in rem. Generally,
special proceedings are in rem.
But since it is directed against the whole world, anyone in the
world can come forward and oppose the petition, hence,
publication is required. There is no particular person as
defendant but in reality, anybody in the world can come forward
and oppose it. That's the difference between a special
proceeding and a civil action.
Sec. 4. In what cases not applicable. - These
Rules shall not apply to election cases,
land registration, cadastral, naturalization
and insolvency proceedings, and other
cases not herein provided for, except by
analogy or in a suppletory character and
whenever
practicable and convenient. (R143a)
The Rules of Court do not apply to certain proceedings in court.
Q: What court proceedings where the Rules of Court are not
applicable?
A: Election cases, land registration cases, cadastral cases,
naturalization cases, insolvency
proceedings, and other cases not herein
provided for except by analogy of for
suppletory purposes.
In these cases, the Rules of Court are
suppletory in character. In case of conflict between election law
and the Rules of Court, forget the Rules of Court. But when the
Election Code is silent, you apply the Rules of Court by analogy
or for suppletory purposes.
There are some election cases which fall within the jurisdiction
of the courts, not necessarily COMELEC. For example, violation
of election code where the party may be adjudged to go to jail.
That is a criminal case. That is governed by the rules on
criminal procedure. It is more on imprisonment.
Sec. 5. Commencement of an action. - A civil
action is commenced by the filing of the
original complaint in court. If an
additional defendant is impleaded in a
later pleading, the action is commenced
with regard to him on the date of the filing
of such later pleading, irrespective of
whether the motion for its admission, if
necessary, is denied by the court. (6a)
Q: When is a court action deemed commenced?
A: A civil action is commenced by the filing of the original
complaint in court. Of course this is not really complete. The
filing of the original complaint in court must be accompanied by
the payment of the correct docket fee. A complaint is not
deemed filed until the docket fee is paid. This is important to
determine the exact date that the action has commenced
because it is from that moment that the running of the
prescriptive period is interrupted.
Civil actions are deemed commenced from the date of the filing
and docketing of the complaint, without taking into account the
issuance and service of summons (Cabrera vs. Tiano, GR No.
L17299, July 31, 1963).
If the complete amount of the docket fee is not paid, the
prescriptive period continues to run as the complaint is deemed
not filed (Feria, 2001, p. 208)
An action can be commenced by filing the complaint by
registered mail, in which case, it is the date of mailing that is
considered as the date of filing and not the date of the receipt
thereof by the clerk of court.
The second sentence of Section 5 states that, “If an additional
defendant is impleaded in a later pleading, the action is
commenced with regard to him on the date of the filing of such
later pleading…”
Example: Today (November 19, 1997), I filed a complaint
against A. So, the action is commenced on Nov. 19, 1997.
However next month, say, December 19, if there is an additional
defendant, the date of the commencement of the action with
regards to the additional defendant is not the date when the
original action is filed, but on the date when he was included in
the amended pleading.
How do you interpret or construe the Rules of Court?
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. (2a)
The purpose of Procedural Law is to hasten litigation. So you do
not interpret it to prolong a case. That is based on the principle
of liberal construction.
Cases should, as much as possible, be determined on the merits
after the parties have been given full opportunity to ventilate
their causes and defences, rather than on technicality or some
procedural imperfection. After all, technical rules of procedure
are not ends in themselves but are primarily devised to help in
the proper and expedient dispensation of justice. In appropriate
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cases, therefore, the rules may be
construed liberally in order to meet
and advance the cause of
substantial justice (Land Bank vs.
Celad, GR No. 164876, Jan. 23,
2006)
DE GUZMAN vs SANDIGANBAYAN - 256 SCRA 171
HELD: “The Rules of Court was conceived and
promulgated to set forth guidelines in the dispensation
of justice but not to bind and chain the hand that
dispenses it, for otherwise, courts will be mere slaves
to or robots of technical rules, shorn of judicial
discretion. That is precisely why courts in rendering
real justice have always been, as they in fact ought to
be, conscientiously guided by the norm that when on
the balance, technicalities take a backseat against
substantive rights, and not the other way around.
Truly then, technicalities, should give way to the
realities of the situation.”
So, the purpose of procedure is to help the hand that dispenses
justice and not to tie these hands. Otherwise, the courts will
become mere robots. And, as much as possible, courts should
avoid technicalities to give way to the realities of the situation.
In one case, “Lawsuits, unlike duels, are not to be won by a
rapier’s thrust.” (Alonzo vs. Villamor, 16 Phil. 315)
That’s why the SC said in another case:
SANTOS vs. CA – 198 SCRA 806
HELD: Procedural “rules are not intended to hamper
litigants or complicate litigation but, indeed, to provide for a
system under which suitors may be heard in the correct
form and manner and at the prescribed time in a peaceful
confrontation before a judge whose authority they
acknowledge. The other alternative is the settlement of their
conflict through the barrel of a gun.”
Meaning, the purpose of the rules is for people to fight each
other in a civilized way. If you cannot accept the judicial system,
what is your alternative? The only alternative is to shoot your
opponent. We will settle our conflict through the barrel of a gun.
For all its shortcomings and its defects, the judicial system is
still the civilized way of dealing with your opponent.
BAR QUESTION: When may lapses in the literal observance in
the Rules of Court be excused?
A: In the case of
ETHEL CASE, ET AL vs. FERNANDO JUGO, ET AL – 77 Phil.
523
HELD: Lapses in the literal observance of a rule of procedure
will be overlooked:
1) when they do not involve public policy;
2) when they arose from an honest mistake or unforeseen
accident;
3) when they have not prejudiced the adverse party; and
4) when they have not deprived the court of its authority.
One final note, while it is true that the Rules of Court should be
liberally construed as a general rule, there are certain
provisions which according to the SC, should be strictly
construed because they were intended precisely to minimize
delay. These are provisions on:
1) reglementary periods;
2) rule on forum shopping;
3) service of summons
A good example would be provisions which prescribe the time
during which certain acts are going to be done, like the filing of
an
answer, because if you will disregard this, it will promote more delay rather than expedite litigations.

Another example is the filing of a notice of appeal. These are the provisions which are to be strictly construed because while it is true
that the Rules of Procedure are to be liberally construed, it is
not a license to completely ignore these rules. Even the SC made the warning. Like in the cases of

ANTONIO vs. CA – 167 SCRA 127

HELD: “It is the common practice of litigants who have no excuse for not observing the procedural rules to minimize the same as mere
technicalities. Then they cry for due process.
These procedural rules are in fact intended to ensure an orderly administration of justice precisely to guarantee the enjoyment of
substantive rights.”

LIMPOT vs. CA– 170 SCRA 367

HELD: “Procedural rules are not to be belittled or dismissed

simply because their non-observance may have resulted in prejudice to a party's substantive rights, as in this case. Like all rules, they
are required to be followed except only when for
the most persuasive of reasons they may be relaxed to relieve a litigant of an injustice not commensurate with the degree of his
thoughtlessness in not complying with the procedure
prescribed. While it is true that a litigation is not a game of technicalities, this does not mean that the Rules of Court may be ignored at
will and at random to the prejudice of the
orderly presentation and assessment of the issues and their just resolution.”

This reminds me of a lawyer who did not comply with the rules and he was arguing that the rules should be liberally construed. And
then the judge says: “There is a thin line between liberal construction of the rules and gross ignorance of the rules!” It is either you did
not follow the rules strictly or you do not really know the rules.

The power of the SC to promulgate rules concerning pleadings, practice, and procedure includes the power to suspend the effectivity of
such rules to provide an exception from the operation
of said rules. It is within the inherent power of the Supreme Court to suspend its own rules in a particular case in order to do justice
(De Guia vs. De Guia, GR No. 135384, April 4, 2001).

Reasons which would warrant the suspension of the Rules:

1) the existence of special or compelling circumstances;

2) the merits of the case;
3) a cause not entirely attributable to the faault or negligence
of a party favored by the suspension of the rules;
4) a lack of any showing that the review sought is merely frivolous and dilatory and
5) the other party will not be unjustly prejudiced thereby
(Sarmiento vs. Zaratan, GR No. 167471, Feb. 5, 2007)

ORDINARY CIVIL ACTIONS Sec. 2. Cause of action, defined. - A cause of

action is the act or omission by which a
Rule 02 party violates a right of another. (n)

Q: Define cause of action.

CAUSE OF ACTION
SECTION 1. Ordinary civil actions, basis of. - A: CAUSE OF ACTION is an act or omission by which a party
Every ordinary civil action must be based violates a right of another.
on a cause of action. (n)
ELEMENTS OF A CAUSE OF ACTION
Section 1 of Rule 1 is entitled cause of action. Section 1
expresses the principle that every ordinary civil action must be
There are 3 main elements:
based on a cause of action. In other words, there cannot be a
case unless you have a cause of action.
1) Existence of legal right in favor of the plaintiff by
whatever means and under whatever law it arises or is
Under Rule 16, one of the grounds for a motion to dismiss is
created;
that your pleading states no cause of action.

52
 2) a correlative obligation on the part of the named
defendant to respect and not to violate such right; and
3) an act or omission on the part of such defendant in
violation of the right of the plaintiff or constituting a
breach of the obligation of the defendant to the
plaintiff for which the latter may maintain action for
recovery of damages or other appropriate relief.
Briefly stated, it is the reason why the litigation has come about,
it is the act or omission of defendant resulting in the violation of
someone’s right. (Phil. National Construction v CA, 514 SCRA
569; Agrarian Reform Beneficiaries Association v. Nicolas GR
No. 168394, Oct. 6, 2008)
There is a fourth element added by some cases and
commentators – the element of damage suffered by the plaintiff.
Even if there is violation, if there is no damage, then what relief
are you asking for? There can be no action where no damage is
sustained.
As a matter of fact, in a recent case, the SC remarked that
wrong or injury without damage or damage without wrong does
not constitute a cause of action since damages are merely part
of the remedy allowed for the injury caused by a breach or
wrong.
Injury is the illegal invasion of a legal right while damage is the
loss, hurt, or harm which results from the injury.
Cause of Action not an issue in administrative cases
While the existence of a cause of action is one that is essential
to the existence of a civil action, in administrative cases
however, the issue is not whether the complainant has a cause
of action against the respondent, but whether the respondent
has breached the norms and standards of the office. (Mutia v.
Purisima, 494 SCRA 448)
Cause of Action in Specific Cases
In breach of contract cases, a cause of action does not require
an allegation of the negligence of the defendant but merely the
following elements:
a.) The existence of a contract, and
b.) The breach of the contract. (Calalas v. CA SCRA 356;
FGU Insurance Corp. v. GP Sarmeinto Trucking Corp.
386
SCRA 312)
Thus, if a carrier is sued based on a breach of contract of
carriage, negligence need not be proved by the plaintiff,
negligence not being an element of the cause of action of a suit
predicated on a breach of contract. This is true whether or not
the defendant is a public or a private carrier. However, where
the defendant is a common carrier there is an additional reason
for dispensing with proof of negligence, i.e., negligence of the
common carrier is presumed. (Art. 1735 & Art. 1756 CC)
In quasi delict, negligence, as an element, must be alleged and
proved. (Art. 2176 CC) but the negligence of those persons
53
described under Art. 2180 of the Civil Code, although based on
quasi delict is presumed.
Under Art. 2180, following the well-recognized doctrine of
vicarious liability, certain persons like the father, mother,
guardian, owners and managers of an establishment or
enterprise, employee, the State, and teachers or heads of
establishments of arts and trades are, under specified
conditions, liable for acts of persons for whom they are
responsible.
Thus, an employer for instance, is liable for the damage caused
by his employees and household helpers acting within the scope
of their assigned tasks. The employer’s negligence in the
selection and supervision of his employee is presumed and his
liability shall only cease if he successfully proves his observance
of the diligence required of a good father of a family to prevent
damage.
When an injury is caused to another by the negligence of the
employee there instantly arises the juris tantum presumption of
law that there was negligence on the part of the employer either
in the selection or in the supervision, or both of the employee.
The liability of the employer is direct and immediate and is not
conditioned upon a prior recourse against the negligent
employee and a prior showing of the insolvency of such
employee. Therefore, it is incumbent upon the employer to prove
his exercise of diligence of a good father of a family in the
selection and supervision of the employee (Manliclic vs.
Calaunan GR No. 150157 January 25, 2007)
Where the cause of action rests on a promissory note, filing the
action before the due date of the obligation would be premature
because the obligation is one with a period. Whenever a period
is designated in an obligation, the obligation becomes
demandable only when the period arrives. Such period is
presumed to be for the benefit of both parties and of course,
also of the debtor. He cannot be charged before the due date
(Art. 1196, Civil Code) unless he loses the right to make use of
the period (Art. 1198, Civil Code).
In an unlawful detainer case, the cause of action does not
accrue unless there is a demand to vacate and is not complied
with. If, however, the suit is based on expiration of the lease,
notice and demand are not required. (Labastida v. CA, 287
SCRA 662)
EXAMPLE of Cause of Action:
A borrows money from B promising to pay on a date certain.
Upon due date, A did not pay. Does B have a cause of action?
Let us examine whether the elements are present.
• RIGHT – the right of the creditor to get back his
money;
• OBLIGATION – The defendant has the obligation to
pay back the loan under the law on contracts;
• VIOLATION or delict or wrong – the account fell due
and the debtor is supposed to pay the creditor, but the
former
did not pay the latter;
• DAMAGE – the creditor cannot get back his money.
So, the 4 elements are there. Of course, when you file a
complaint against somebody, you do not prepare the complaint
by enumerating the elements. In other words, you just narrate
the facts. It is up for the defendant to analyze. It is the duty of
the lawyer to analyze the complaint whether the 4 elements are
present.
ANOTHER EXAMPLE: Damages arising from culpa aquiliana.
You are crossing the street and you are bumped by X who was
driving a car causing you injuries and being hospitalized. You
also failed to report for work.
• RIGHT – it is the right of every person not to be
molested. You have the right to walk peacefully and
not to be harmed;
• OBLIGATION – it is the obligation of every person
driving to be careful so that he will not bump other
people. You
do not have to enter into a contract with a person
saying you will not bump him;
• DELICT or wrong – because of your recklessness, you
violated his right by injuring him;
• DAMAGE – I have to spend money in the hospital and I
lost my income.
The 4 elements are present. So there is a cause of action. In
other words, you cannot imagine a civil case where the 4
elements are not present.
ANOTHER EXAMPLE: D borrowed money from you last year
payable in January2010 but because you are in dire need of
money you demanded payment. Suppose D does not pay can
you file an action to collect the amount from him? Do you have
a cause of action?
• RIGHT – the creditor has the right to collect;
• OBLIGATION – every debtor has the obligation to pay;
 DAMAGE – I have not recovered the money; 
DELICT or wrong – there is NO delict yet.
Why? There is no delict yet because the account is payable next
year. So, it is still premature to file a collection case now
because one element is missing. It is not based on a cause of
action and is dismissible under Rule 16.
Cause of action must be unmistakably stated
The mere existence of a cause of action is not sufficient for a
complaint to prosper. Even if in reality the plaintiff has a cause
of action against the defendant, the complaint may be dismissed
if the complaint or the pleading asserting the claim “states no
cause of action”. (Sec. 1[g], Rule 16).
This means that the cause of action must unmistakably be
stated or alleged in the complaint or that all the elements of the
cause of action required by substantive law must clearly appear
from the mere reading of the complaint. To avoid an early
dismissal of the complaint, the simple dictum to be followed is:
“If you have a cause of action, then by all means, state it! State
all of its elements in your pleading!”
54
Where there is a defect or an insufficiency in the statement of
the cause of action, a complaint may be dismissed not because
of the absence or a lack of a cause of action but because the
complaint “states no cause of action”. The dismissal will
therefore, be anchored on a “failure to state a cause of action.”
The failure to state a cause of action does not mean that the
plaintiff has “no cause of action.” It only means that the
plaintiff’s allegations are insufficient for the court to know that
the rights of the plaintiff were violated by the defendant. Thus,
even if indeed the plaintiff suffered injury, if the same is not set
forth in the complaint, the pleading will state no cause of action
even if factually or in reality the plaintiff has a cause of action
against the defendant.
Action distinguished from Cause of Action
An action is the suit filed in court for the enforcement or
protection of a right, or the prevention or redress of a wrong.
(Sec. 3[a]. Rule 2, Rules of Court. A cause of action is the basis
of the action filed. Under the Rules of Court “every ordinary civil
action must be based on a cause of action.” (Sec. 1, R 2).
CAUSE OF ACTION vs. RIGHT OF ACTION
Another important subject in procedure is distinguishing a
cause of action from a right of action.
Q: Define right of action.
A: Right of action is the right of the plaintiff to bring an action
and to prosecute that action to final judgment. (Marquez vs.
Varela, 92 Phil. 373)
It is the right of a person to commence and prosecute an action
to obtain the relief sought.
Q: What are the ELEMENTS of a right of action?
A: There are three elements:
1.) the plaintiff must have a good cause of action;
2.) must be instituted by the proper party; and,
3.) he/she must have performed all conditions
precedent to the filing of the action.
So, you cannot have a right of action unless you first have a
cause of action. That is why the SC said in the case of
DE GUZMAN, JR. vs. CA – 192 SCRA 507
HELD: “The right of action springs from the cause of action,
but does not accrue until all the facts which constitute the
cause of action have occurred. When there is an invasion of
primary rights, then and not until then does the adjective
or remedial law become operative, and under it arise rights
of action. There can be no right of action until there has
been a wrong – a violation of a legal right – and it is then
given by the adjective law.”
So, there can be no right of action until there has been a wrong,
a violation of a legal right. There can be no right of action unless
there is first a cause of action.
And you must comply with the conditions precedent. You
cannot file a case unless you comply with certain conditions
and the best
illustration of this element is the case of
PHILAM GENERAL INSURANCE CO. vs. SWEETLINES - 212
SCRA 194
FACTS: This involves shipped cargoes from Manila to Davao
but the goods were damaged while in transit. Based on the
damaged cargoes, the consignee filed a case against the
carrier. Actually, in the bill of lading, there is a stipulation
that if the consignee wants to file a case arising from the
contract of carriage against the carrier, the consignee must
first send a notice of loss to the carrier and then if the carrier
will not honor it, that is the time the consignee can file a case
before the court. Now, he went to court directly without filing a
notice of loss to the carrier.
ISSUE: Whether or not there is a right of action.
HELD: There is NO right of action because the consignee did
not comply with the conditions precedent.
“The right of action does not arise until the performance of
all conditions precedent to the action. Performance or
fulfillment of all conditions precedent upon which a right of
action depends must be sufficiently alleged, considering
that the burden of proof to show that a party has a right of
action is upon the person initiating the suit.”
“More particularly, where the contract of shipment contains
a reasonable requirement of giving notice of loss of or injury
to the goods, the giving of such notice is a condition
precedent to the action for loss or injury or the right to
enforce the carrier’s liability.”
BAR QUESTION: Distinguish a CAUSE OF ACTION from a
RIGHT OF ACTION.
A: The following are the distinctions:
1) Cause of action is the delict or wrong committed by
the defendant, whereas
Right of action refers to the right of the plaintiff to
institute the action;
2) Cause of action is created by substantive law (e.g.
rights under the Civil Code), whereas
Right of action is regulated by procedural law; “Right
of action is a remedial right belonging to some
persons, while cause of action is a formal statement of
the operative facts that give rise to such remedial
right.” (De
Guzman vs. CA, supra)
3) Right of action may be taken away by the running of
the statute of limitations, by estoppel or other
circumstances which do not affect at all the cause of
action.
55
EXAMPLE: When a debtor borrows money and he does not pay.
His failure to pay is the cause of action. After 10 years, the right
to collect has prescribed and you cannot recover anything.
Actually, what is barred is his right of action, not the cause of
action because the moment he does not pay, there is already a
wrong and you cannot erase a wrong. The cause of action is not
affected by prescription. In fact, the Civil Code provides that the
obligation is converted into natural obligation, which is based
on equity rather than a right.
When we say that the action has prescribed we should mean
that what has prescribed is the right of action not the cause of
action.
Relief, Remedy and Subject Matter
Relief is the redress, protection, award or coercive measure
which the plaintiff prays the court to render in his favor as
consequence of the delict committed by the defendant while
remedy is the procedure or appropriate legal form of relief of
action which may be availed of by the plaintiff as the means to
obtain the desired relief.
Subject matter is the thing, wrongful act, contract or property
which is directly involved in the action, concerning which the
wrong has been done and with respect to which the controversy
has arisen.
SPLITTING A CAUSE OF ACTION
Sec. 3. One suit for a single cause of action. -
A party may not institute more than one
suit for a single cause of action. (3a)
Section 3 is known as the rule against splitting the cause of
action.
Purpose:
To avoid the following:
1) Multiplicity of suits;
2) Conflicting decisions; and
3) Unnecessary vexation and harassment of defendants.
This applies not only to complaints but also to counterclaims
and cross-claims.
Q: What is splitting a single cause of action?
A: Splitting a cause of action is the act of instituting two or
more suits for the same cause of action.
It is the practice of dividing one cause of action into different
parts and making each part a subject of a different complaint.
(Bachrach vs. Icariñgal, 68 Phil. 287)
In splitting a cause of action, the pleader divides a single cause
of action, claim or demand into two or more parts, brings a suit
for one of such parts with the intent to reserve the rest for
another separate action. (Quadra v. CA 497 SCRA 221)
EXAMPLE: In a suit under a promissory note, you file a case to
collect the principal; another action to collect the interest;
another action to collect attorney’s fees. So, there is only one
note and you sue me three times but there is only one cause of
action. Now, under the law, you have split your cause of action.
You should file only one case to recover the principal and the
interest as well as the attorney’s fees.
EXAMPLE: Damage (injury) suit: X, while walking was bumped
by a vehicle. He filed one case against the owner of the vehicle
for reimbursement of hospital expenses; one case to recover his
expenses for medicine; another one for doctor’s fees; then
another case for the lost income.
A single act may sometimes violate several rights of a person.
Nevertheless the plaintiff has only one cause of action
regardless of the number of rights violated. If a car owner
sustains injuries to his person and damage to his car as a result
of the negligent driving of the defendant, two rights of the
plaintiff have been violated, namely, his personal right to be safe
in his person and his property right to have his car intact and
free from any damage. Under the circumstances, the plaintiff
can only file a single action for the recovery of damages for both
types of injuries. Filing an action to recover damages to his
person and later for damages to his car would be splitting a
single cause of action. This is because there is one act of
violation. If, however, a passenger in the same car was also
injured, the injuries to the passenger gives rise to a cause of
action separate and distinct from those sustained by the car
owner because distinct rights belonging to different persons
have been violated. The injured passenger may file a suit
against the defendant separate from the suit filed by the car
owner.
A cause of action for the reconveyance of title over property does
not include a cause of action for forcible entry or unlawful
detainer. They are distinct causes of action. What is involved in
an ejectment case is possession de facto or material possession.
In an action for reconveyance, the issue is ownership. (Tecson v.
Gutierez, 452 SCRA 781; de la Cruz v. CA, 133 SCRA 520).
Application of the rule against splitting a single cause of
action
This rule applies not only to complaints but also to
counterclaims and cross-claims. (Mariscal v. CA, 311 SCRA 51)
Example: The act of a defendant in taking possession of the
plaintiff’s land by means of force and intimidation constitutes a
single act of dispossession but gives rise to two reliefs to the
plaintiff:
a) recovery of possession, and
b) damages arising from the loss of possession. Both of
these reliefs result from a single wrong hence,
constitute but a single cause of action. Each of them
cannot be the subject of two separate actions. IT is
procedurally erroneous for the plaintiff to file an action
to recover possession and another action for damages.
Both remedies must be alleged and claimed in only one
complaint. To file a separate action for each relief is to
split a single cause of action.
Now if the defendant denies plaintiff’s allegations and avers that
the action is just plain harassment and claims for damages,
56
attorney’s fees and litigation" expenses, he cannot file 3
counterclaims.
The action for forcible entry should include not only the plea for
restoration of possession but also claims for damages arising
out of the forcible entry. The claim for damages cannot be filed
separately (Progressive Development Corporation, Inc. vs. CA
301 SCRA 637).
The same principle applies to an action to recover the
possession of a land. The action must also include the recovery
of the fruits already taken from the land and appropriated by
the defendant. A suit for recovery of the land and a separate
suit to recover the fruits will not be sustained. Also, when one
files a complaint for unlawful detainer on the ground of non-
payment of rentals, the complaint must include the recovery of
the rentals in arrears, such recovery being an integral part of
the cause of action for unlawful detainer.
A tenant illegally ejected from the land is entitled to two reliefs –
one for reinstatement and another for damages. Since both
reliefs arose from the same cause of action, they should be
alleged in one complaint (Gozon vs. Vda. De Barrameda 11
SCRA 376).
An action for the recovery of taxes should also include the
demand for surcharges resulting from the delinquency in the
payment of said taxes. The non-payment of taxes gave rise to
two reliefs: (a) the recovery of the unpaid taxes; and (b) the
recovery of the surcharges resulting from non-payment of the
taxes. These two reliefs are results of a single cause of action
and which should be pursued in a single complaint (City of
Bacolod vs. San Miguel Brewery, Inc. 29 SCRA 819).
A bank cannot file a civil action against the debtor for the
collection of the debt and then subsequently file an action to
foreclose the mortgage. This would be splitting a single cause of
action (Danao vs. CA 154 SCRA 446; Industrial Finance Corp.
vs. Apostol 177 SCRA 521).
It has been held however, that an action to collect the amount of
the loan will not preclude a subsequent action for the rescission
of the mortgage based on violation of the conditions of the
mortgage (Enriquez vs. Ramos 7 SCRA 26).
Sec. 4. Splitting a single cause of action; effect
of. - If two or more suits are instituted on
the basis of the same cause of action, the
filing of one or a judgment upon the
merits in any one is available as a ground
for the dismissal of the others. (4a)
The remedy of the defendant is a motion to dismiss or if such
motion is not filed, to allege it in the answer as an affirmative
defense.
Q: What are the effects of splitting a cause of action?
A: Under Section 4, the following are the effects:
1.) The filing of one is available as a ground for the
dismissal of the other. This assumes a situation
where there is already another action pending
between the same parties for the same cause. This
is one ground for dismissal of a case, LITIS
PENDENTIA. (Rule 16 – Motion to Dismiss, Section
1 [e])

a judgment upon the merits in any one is available
2.) as a
ground for the dismissal of the others. This refers to a
judgment that is final and executor. That is what you
call barred by prior judgment or RES ADJUDICATA,
which is also a ground for dismissal under Rule 16,
Section 1 [f].
EXAMPLE: A collection case was already decided a long time
ago dismissing it because the court found that the promissory
note was a forgery. Now, you are reviving the same case – you
are filing again. Under Section 4, the judgment in the first case
years ago would be cited as a basis for the dismissal of the
second case.
Note: if the ground is pendency of another action, the
phraseology of the rule (Sec. 4 R 2) no longer confines the
dismissal to the second action. As to which action should be
dismissed would depend upon judicial discretion and the
prevailing circumstances of the case.
SINGLENESS OF A CAUSE OF ACTION
Q: How do you determine the singleness of a cause of action?
A: The singleness of a cause of action is determined by the
singleness of the delict or wrong committed by the
defendant and not by the number of remedies that the law
grants the injured party. Meaning, a single delict may give rise
to two or more possible remedies but it does not mean to say
the injured party can avail of all those remedies simultaneously
or one after another. (Bachrach vs. Icariñgal, supra; David vs.
De la Cruz, L-11656, April 18, 1958)
EXAMPLE: Obligations and Contracts: A violation or a breach of
contract could give rise to a civil action for specific performance
or a civil action for rescission of contract. However, it does not
mean to say that the injured party can file both or one after the
other. Otherwise, he will be splitting his cause of action.
EXAMPLE: There is the Recto Law (on Sales) which provides for
3 remedies of an unpaid seller of personal properties: (1) rescind
the contract of sale; (2) exact fulfillment of obligation; and (3)
foreclosure of mortgage. But even the law on Sales is very clear:
the choice of one automatically bars resort to the other because
it will be against splitting the cause of action.
EXAMPLE: Credit Transactions: A bank has two (2) possible
remedies against a debtor for non-payment of a loan secured by
a mortgaged say, piece of land: (1) foreclose the mortgage on the
land; or (2) file an action to collect the loan. Here, the bank
cannot file a case against the debtor to collect the loan and at
the same time file an action to foreclose the mortgage for it will
be splitting the cause of action. So it is either you enforce the
principal contract of loan, or, you enforce the accessory contract
of mortgage. This is what happened in the case of
57
DANAO vs. CA – 154 SCRA 446
FACTS: The Danao spouses borrowed money from the
bank, mortgaged their property and then they failed to pay.
The bank filed a civil action to collect the loan. After filing a
civil action to collect the loan, the bank instituted an action
to foreclose the mortgage.
HELD: “Anent real properties in particular, the Court has
laid down the rule that a mortgage creditor may institute
against the mortgage debtor either a personal action for
debt or a real action to foreclose the mortgage. In other
words, he may pursue either of the two remedies, but not
both.”
“Evidently, the prior recourse of the creditor bank in filing a
civil action against the Danao spouses and subsequently
resorting to the complaint of foreclosure proceedings, are
not only a demonstration of the prohibited splitting up of a
cause of action but also of the resulting vexation and
oppression to the debtor.”
RULES IN DETERMINING THE SINGLENESS OF A CAUSE OF
ACTION
IN CONTRACTS WITH SEVERAL STIPULATIONS
RULE #1 (General Rule):
A contract embraces only one cause
of action because it may be violated
only once, even if it contains several
stipulations. (Quioque vs. Bautista,
L-13159, Feb. 28, 1962)
EXAMPLE: P enters into a contract with N which contains 3
stipulations: (#1) that next month, P will deliver to N 100 sacks
of rice; (#2) on the same date, P will also deliver to N 100 sacks
of corn; and (#3) on the same date, P will also deliver to N 100
sacks of sugar. When the day arrived, nothing was delivered. So
three stipulations were violated.
Q: How many causes of action does N have against P?
A: ONE. The contract is only one cause of action even if it
contains several stipulations. The cause of action is not based
on the number of paragraphs violated but on the contract itself.
RULE #2 (Exception to the General Rule):
A contract which provides for several
stipulations to be performed at
different times gives rise to as many
causes of action as there are
violations. (Larena vs. Villanueva, 53
Phil. 923)
EXAMPLE: A loan with a promissory note where the principal
amount is payable in installment. The first installment is
payable in 2008, the second installment in this year, and the
third installment is payable in 2010 without any acceleration
clause. So, there is only one contract of loan but the principal is
payable in three installments at different times.
For non- payment of the first installment, the creditor has a
cause of action and can file one case.
Q: Next year, he did not pay the second installment, can the
creditor file another case?
A: YES, because this time it is the exception. Every installment
is one cause of action even if there is only one note. Remember
that they are to be performed at different times.
RULE #3 (Exception to the exception):
All obligations which have matured
at the time of the suit must be
integrated as one cause of action in
one complaint, and those not so
included would be barred. (Larena
vs. Villanueva, 53 Phil. 923)
EXAMPLE: In 2008, the debtor did not pay but the creditor did
not file any case. Then this year, the second installment was not
also paid.
Q: Is the creditor correct if he files two separate actions?
A: He is wrong. When all the installment are already due and
the creditor has not filed any case for the collection of the first
installment, this time, when he files for collection of the unpaid
second installment, everything must be integrated. If you do
not file a claim for one, it is deemed barred.
So for example, if you will wait for the entire note to mature, you
cannot apply rule 2. You should only file one action and you go
back to the general rule.
Doctrine of Anticipatory Breach
RULE #4 (Exception to Rule #2)
An unqualified and positive refusal
to perform a contract, though the
performance thereof is not yet due,
may, if the renunciation goes into
the whole contract, be treated as a
complete breach which will entitle
the injured party to bring the action
at once. (Blossom & Co. vs. Manila
Gas Corp., 55 Phil. 226)
EXAMPLE: Let us suppose that in the preceding problems when
the first installment fell due the creditor demanded payment for
the first installment from the debtor but the latter refused to
pay claiming that there was no loan and the promissory note is
a forgery how many causes of action are there?
Now, in that kind of statement, he is not only repudiating the
first installment. He is repudiating the entire note. So under
rule #4, the creditor can file a case for the entire loan of because
it has been repudiated. If you only file only one for the first
installment which fell due, then another for the others, it will be
useless because he will still maintain the same position. So you
do not wait anymore for the 2nd and 3rd installments to fall
due. You file only one case for the entire breach. There is a
total breach for a continuing obligation and there is now only
one cause of action for the entire promissory note. (Blossoms &
Co. v. Manila Gas Corporation, 55 Phil. 226) The anticipatory
breach committed by the defendant entitles the plaintiff to only
one cause of action.
JOINDER OF CAUSES OF ACTION
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SEC. 5. Joinder of causes of action. - A party
may in one pleading assert, in the
alternative or otherwise, as many causes
of action as he may have against an
opposing party, subject to the following
conditions:
xxxxx
Q: What do you mean by joinder of causes of action?
A: Joinder of causes of action is the provision of the Rules
which allows a party to join in one pleading two or more causes
of actions against the opposing party.
It is the assertion of as many causes of action as a party may
have against another in one pleading. It is the process of uniting
two or more demands or rights in one action.
Example: D is the debtor of C for P350,000.00 due on January
5, 2008. D likewise owes C P350,000.00 due on February 13,
2008. Both debts are evidenced by distinct promissory notes. D
did not pay both debts despite demand.
How many causes of action are there? There are two because
there are two contracts and therefore two violations. So C can
file two separate actions for collection without violating the
prohibition against splitting a single cause of action.
But can C file only one action by joining the two causes of
action? Yes under this Section 5.
C may file a single suit against D for the collection of both debts,
despite the claims being actually separate causes of actions and
having arisen out of different transactions.
THE PRINCIPLE: You cannot file more than one case when you
have only one cause of action but the law allows you to file one
case for more than one cause of action.
Q: Under Section 5, is the creditor obliged to file one complaint
for the 2 promissory notes?
A: NO, because joinder of causes of action is permissive. He may
or may not.
When the causes of action accrue in favor of the same plaintiff
and against the same defendant, i.e., there is only one plaintiff
and one defendant, it is not necessary to ask whether or not the
causes of action arose out of the same transaction or series of
transactions. This question is only relevant when there are
multiple plaintiffs or multiple defendants. In the hypothetical
just discussed in the example, is C obliged to join the causes of
action against D?
No. He may file a single suit for each of the claims if he desires
because each debt is a separate cause of action. Joinder of
causes of action is not compulsory. It is merely permissive.
ALTERNATIVE and CUMULATIVE Joinder of Causes of
Action Q: How may causes of action be joined?
A: Causes of action may be joined either: (a) alternatively or (b)
cumulatively.
An ALTERNATIVE JOINDER exists when your cause of action is
either one or the other. You are not seeking relief from both but
from either one.
A CUMULATIVE JOINDER exists when you are seeking relief for
all your causes of action.
ALTERNATIVE joinder; Example:
A is the importer of the goods that were shipped on board a
carrier. Upon reaching Cebu City, they were unloaded by the
arrastre or stevedoring operator. But when the goods were
delivered to A they were already in a damaged condition. A
complained to the arrastre which denied liability claiming that
the goods were damaged already before unloading. Then when A
went to the carrier, it passed the blame to the arrastre.
A here has two (2) possible causes of action: (1) an action
against the stevedoring operator under the contract of
depositary under the law on Credit Transaction; Or, (2) an
action against the carrier under the Law on Transportation. So
there are 2 possible causes of action.
Q: Can A file a complaint incorporating the two (arrastre and
the carrier) both as defendants?
A: YES, that is allowed. This is alternative joinder because A is
not claiming from both of them, but either one or the other.
Another Example: C is a passenger riding on a public utility
vehicle which collided with another vehicle and she is not sure
who is at fault. If the fault lies with the other vehicle, and the
driver of the bus where C was riding is not at fault, then her
cause of action against the other vehicle is quasi-delict. But if
the fault lies with the driver of the bus where she was riding,
her cause of action is culpa contractual. So she has 2 possible
causes of action.
Q: Is it possible for C to file one complaint naming both the
drivers or both operators as defendants?
A: YES. Either of them is liable to her. That is alternative joinder
of causes of action.
CUMULATIVE JOINDER
Examples: Refer to prior illustrations
That is why the manner of joining the defendants alternatively
or otherwise should be correlated with Rule 3, Section 13 and
Rule 8, Section 2:
RULE 3, SEC. 13. Alternative defendants. -
Where the plaintiff is uncertain against
who of several persons he is entitled to
relief, he may join any or all of them as
defendants in the alternative, although a
right to relief against one may be
inconsistent with a right of relief against
the other. (13a)
RULE 8, SEC. 2. Alternative causes of action
or defenses. - A party may set forth two or more
statements of a claim or defense alternatively or
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hypothetically, either in one cause of action or
defense or in separate causes of action or defenses.
When two or more statements are made in the
alternative and one of them if made independently
would be sufficient, the pleading is not made
insufficient by the insufficiency of one or more of
the alternative statements. (2) Requisites for
proper joinder of causes of action
Q: When is joinder of causes of action allowed?
A: Under Section 5, joinder of causes of action is allowed under
the following conditions:
a) The party joining the causes of action shall comply with
the rules on joinder of parties;
b) The joinder shall not include special civil actions or
actions governed by special rules;
c) Where the causes of action are between the same
parties but pertain to different venues or jurisdictions,
the joinder may be allowed in the Regional Trial Court
provided one
of the causes of action falls within the jurisdiction of
said court and the venue lies therein; and
d) Where the claims in all the causes of action are
principally for recovery of money, the aggregate amount
claimed
shall be the test of jurisdiction. (5a)
a.) The party joining the causes of action shall
comply with the rules on joinder of parties
The rule on joinder of parties is Rule 3, Section 6 which
provides that two (2) or more persons can join as plaintiffs in
one complaint or can be joined as defendants in one complaint,
provided there is a common question of fact or law involved
in that case. In other words, before there can be a proper
joinder of causes of action there must must be a proper
joinder of parties. Proper joinder of parties requires that
the right to relief should arise out of the same transaction
or series of transactions and that there exists a common
question of law or fact.
When the causes of action accrue in favor of the same plaintiff
and against the same defendant, i.e., there is only one plaintiff
and one defendant, it is not necessary to ask whether or not the
causes of actions arose of the same transaction or series of
transactions as stated beforehand. This question is only
relevant when there are multiple plaintiffs or multiple
defendants. So in our hypothetical case where D borrowed from
C two separate amounts of P350,000.00 each covered by two
separate promissory notes, C can opt to file one complaint
joining together the two causes of action arising from the
violations of the promissory notes.
EXAMPLE: Two or more passengers riding on the same bus,
met an accident. All of them were injured. Every passenger who
gets injured has a cause of action separate and distinct from
each other because there are separate contracts of carriage
violated. So they decided to file a damage suit.
Q: Can they be joined in one complaint?
A: YES because there is a common question of fact or law. They
are riding on the same bus, meeting the same accident, against
the same operator. So there is a joinder of parties under Rule 3.
And if the joinder of parties under Rule 3 is proper, then their
causes of action can also be joined under Rule 2 because the
condition is: “shall comply with the rules on joinder of parties.”
Q: Suppose these passengers were riding on different buses
owned by the same operator. All of them met an accident. Well
of course the same kind of case: damage suit, breach of contract
against the same operator. Now, can their causes of action be
joined?
A: NO. They cannot be joined because there is no common
question of fact or law. The defense of the operator here is
different from his defense there. Meaning, passenger A has
nothing to do with the complaint of passenger B because there
is no common denominator between them. So if you cannot join
them under Rule 3, the joinder of causes of action under Rule 2
is also improper.
Distinguish joinder of causes of actions from joinder of
parties.
Joinder of causes of action refers to the procedural device
whereby a party who asserts various claims against the same or
several parties, files all his claims against them in a single
complaint. The joinder will not involve a joinder of parties when
the causes of action joined accrued in favor of the same plaintiff
against the same defendant, i.e., there is only one plaintiff
against the same defendant. This means that a joinder of
causes of action will not necessarily involve a joinder of parties.
Joinder of parties is a procedural device that may be employed
when there are various causes of actions that accrue in favor of
one or more plaintiffs against one or more defendants, i.e., there
is a plurality of parties. A joinder of parties requires that before
parties can be joined under a single complaint the right to relief
must arise out of the same transaction or series of transactions
and there must be a common question of law or fact. A joinder
of parties may or may not be involved in a joinder of causes of
action.
b.) The joinder shall not include special civil actions or
actions governed by special rules
Assume that aside from the above claims of C against D, C who
happens to be the lessor of D wants to eject D from the
apartment occupied by D as lessee. May the action be joined
with the claims for money?
No. An action for ejectment is a special action which cannot be
joined with ordinary action. The joinder does not include special
civil actions or those governed by special rules. The reason is
confusion in the application of procedural rules would certainly
arise from the joinder of ordinary and special civil actions in a
single complaint.
Assume that C has the following causes of action against D: (a)
P1M based on a PN; (b) P1M based on torts; and (c) foreclosure
of real estate mortgage. May the causes of action be joined?
Yes, except the foreclosure of real estate mortgage, which is a
special civil action.
UNION GLASS AND CONTAINER CORP vs. SEC - 126 SCRA
31
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FACTS: (This is still a good ruling) A stockholder of a
corporation who is also the creditor of the corporation
decided to file one complaint against the corporation
asserting several causes of action, among them is his right
as a stockholder under the Corporation Code and also his
right as a creditor under the Civil Code.
HELD: The joinder is improper. In the first place, one is
governed by a quasi-judicial body (SEC). So how can the
RTC try a case when the cause of action is pertaining to the
SEC and it is governed by the special rules of the SEC? So
you cannot join that.
c.) Where the causes of action are between the same
parties but pertain to different venues or jurisdictions,
the joinder
may be allowed in the Regional Trial Court provided one
of
the causes of action falls within the jurisdiction of said
court and the venue lies therein
PROBLEM: M encroached on two parcels of land belonging to
me both located IN Cebu City. In one parcel of land, the
assessed value is only P20,000. In another parcel of land, the
assessed value is P1 million. I would like to file a case of action
publiciana against him. The first accion publiciana is triable by
the MTC (P20,000). The other accion publiciana is triable by the
RTC.
Q: Can I join them?
A: YES, and it must be filed it in the RTC. The jurisdiction of
the RTC will prevail. Venue, of course, is Cebu City.
Examples of “but pertain to different venues or jurisdiction”
PROBLEM: M encroached on my land in Lapulapu with an
assessed value of P20,000. And then he encroached in another
land of mine in Cebu City with an assessed value of P1 million.
You will notice that in the Lapulapu land, the jurisdiction is in
the MTC for the case accion publiciana and the venue is
Lapulapu because the property is situated there. In the other
case, the jurisdiction is in the RTC and the venue is Cebu City.
Q: Can I file a case against M joining the 2 cases?
A: YES.
Q: Where is now the governing venue?
A: The venue of the RTC case prevails. Therefore, the case must
be filed in Cebu City.
PROBLEM: M encroached on my land in Lapulapu with an
assessed value of P1 million. And then he encroached in
another land of mine in Cebu City with an assessed value of P1
million also. You will notice that in the Lapulapu land, the
jurisdiction is RTC for the case accion publiciana. In the other
case, the jurisdiction is also in the RTC of Cebu City. So both
actions, RTC.
Q: In which RTC will you file the case joining the causes of
action?
A: Either Lapulapu or Cebu City because both are RTCs.
PROBLEM: M encroached on my land in Lapulapu with an
assessed value of P20,000. And then he encroached in another
land of mine in Cebu City with an assessed value of P20,000
also. In the Lapulapu land, the jurisdiction is MTC for the case
accion publiciana. In the other case, the jurisdiction is also in
the MTC. So both actions, MTC.
Q: Can I join in one complaint the 2 actions?
A: NO, because the law says provided one of the causes of
action falls within the jurisdiction of said court and the venue
lies therein. One of them belongs to the RTC. In the example,
both belong to the MTC.
PROBLEM: M encroached on my land more than one year ago
and the land has an assessed value of only P20,000. So if I will
file an accion publiciana, it has to be filed with the MTC. On the
other hand, A encroached my other parcel of land more than
one year ago and the assessed value of the land is P1 million. So
my cause of action there is also accion publiciana but triable by
the RTC. So I decided to file a case naming both of them as
defendants.
Q: Can they be joined under Section 5?
A: NO. The law allows only if it is between the same parties.
This time the parties are not the same. Plus the fact that you
might violate paragraph [a] – there is no common question of
fact and law between them.
PROBLEM: M encroached on my land in Cebu City one month
ago and then he encroached on another land of mine (assessed
value of P1 million) also located in Cebu City two years ago.
Therefore, one case is forcible entry triable by the MTC and the
latter is accion publiciana triable by the RTC.
Q: Can I join them under paragraph [c] although they belong to
MTC and RTC?
A: NO, you cannot join them because of paragraph [b] – a
forcible entry is special civil action which is also governed by the
Summary Procedure. You cannot join a special civil action. So
what is violated here is not paragraph [c] but paragraph [b].
d.) where the claims in all the causes of action are
principally for
recovery of money, the aggregate amount claimed shall
be the test of jurisdiction
The last is only a repetition of the old rule: TOTALITY RULE.
There is nothing new here. So judiciary law, totality rule, basta
sums of money.
As can be gleaned from Sec. 6(a) and (c) of the Truth in Lending
Act, the violation of the said Act gives rise to both criminal and
civil liabilities. Rule 2, Section 5 of the Rules of Court allows
these actions to be joined in one petition. (UCPB vs. Sps.
Samuel and Odette Beluso, GR No. 159912, Aug. 17, 2007).
Splitting a cause of action and joinder of causes of action
Splitting is prohibited because it causes multiplicity of suits
and double vexation on the part of the defendant while joinder is
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encouraged because it minimizes multiplicity of suits and
inceonvenience on the part of the parties.
SEC. 6. Misjoinder of causes of action. -
Misjoinder of causes of action is not a
ground for dismissal of an action. A
misjoined cause of action may, on motion
of a party or on the initiative of the court,
be severed and proceeded with separately.
(n)
There is misjoinder when two (2) or more causes of action were
joined in one complaint when they should no be joined.
EXAMPLE: A case joining an accion publiciana case and a
forcible entry case which is not proper because a special civil
action (forcible entry) cannot be joined. In this case there is
misjoinder of causes of action.
Example: If an action for forcible entry is joined in one
complaint with the causes of actions based on several
promissory notes, the complaint should not be dismissed based
on the misjoinder of the forcible entry case. Instead, the cause
of action predicated on forcible entry may be severed from the
complaint upon motion of a party or by the court motu proprio
and proceeded with separately in another action.
Under Section 6, if there is misjoinder, you do not dismiss the
case. The remedy is to ask the court that the misjoined case be
severed and tried separately. Now, the counterpart, which is still
present is misjoinder of parties under Rule 3, Section 11:
RULE 3, Sec. 11. Misjoinder and non-joinder
of parties. - Neither misjoinder nor non-
joinder of parties ground for dismissal of an
action. Parties may be dropped or added
by order of the court on motion of any
party or on its own initiative at any stage
of the action and on such terms as are just.
A claim against a misjoined party may be
severed and
proceeded with separately. (11a)
So misjoinder of parties and misjoinder of causes of action are
not grounds for dismissal of an action. Just remove the
misjoined cause of action or the misjoined party.

Rule 03
PARTIES TO CIVIL ACTIONS CLASSES OF
PARTIES:
I. Real Parties in Interest II.
Representative Parties
III. Permissive Parties
IV. Indispensable Parties
V. Necessary Parties
Sec. 1. Who may be parties; plaintiff and defendant. -
Only natural or juridical persons, or entities
authorized by law may be parties in a civil action.
The term "plaintiff" may refer to the original
claiming party, the counter-claimant, the cross-
claimant, or the third (fourth, etc.)-party plaintiff.
The term "defendant" may refer to the original
defending party, the defendant in a counterclaim,
the cross-defendant, or other third (fourth, etc.)-
party defendant. (1a)
Notes:
There are two main categories of parties in a civil action
namely, the plaintiff and the defendant.
The plaintiff is the claiming party or more appropriately, the
original claiming party and is the one who files the complaint.
The term however, does not exclusively apply to the original
plaintiff. It may also apply to a defendant who files a
counterclaim, a cross-claim or third party complaint. Hence
Section 1 defines “plaintiff” as the claiming party, the counter-
claimant, the cross-claimant or the third-party plaintiff, etc.
The defendant does not only refer to the original defending
party. If a counterclaim is filed against the original plaintiff, the
latter becomes a defendant and the former, a plaintiff in the
counterclaim. Hence, in Sec. 1, the term “defendant” refers also
to a defendant in a counterclaim, the cross-defendant or the
third-party defendant, etc.
Q: Who may be parties to a civil case?
A: Only the following may be parties to a civil action:
1) He nuts be either:
a. natural or
b. juridical persons or
c. entities authorized by law.
2) he must have the legal capacity to sue; and 3)
he must be a real party-in-interest.
So, you cannot sue or be sued unless you are either a person or
an entity authorized by law.
A dead man cannot sue and he cannot be sued because he has
no more personality.
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Situation: B sued “Rama Eatery.” So, it is “B vs. Rama Eatery.”
It is wrong. Rama Eatery is not a person nor an entity
authorized by law. The correct procedure is you sue the owner
because he is the real person. But the defect is not really
substantial. It is only a formal defect that can easily be
corrected.
Juridical person as parties
The juridical persons who may be parties are those enumerated
in Art. 44 of the Civil Code, namely:
1.) The State and its political subdivisions;
2.) Other corporations, institutions and entities for
public interest or purpose, created by law; and
3.) Corporations, partnerships, and associations for
private
interest or purpose to which the law grants a juridical
personality, separate and distinct from that of each
shareholder, partner or member.
“ENTITIES AUTHORIZED BY LAW”
The best example is Section 15 of this rule.
Section 15. Entity without juridical
personality as defendant.- When two or more
persons not organized as an entity with
juridical personality enter into a
transaction, they may be sued under the
name by which they are generally or
commonly known.
In the answer of such defendant the names
and addresses of the persons composing
said entity must all be revealed.
Thus, if A, B, C, D and E without incorporating themselves or
without registering as a partnership, enter into transactions
using the common name “Ocean Quest Corporation”, they may
be sued as such. When the defendant “corporation” answers,
the names of A, B, C, D and E and their addresses must be
revealed. Note however, that the authority to be a party under
this section is confined only to being a defendant and not as a
plaintiff. This is evident from the words, “they may be sued”.
Another example of an entity authorized by law which may not
be a natural or juridical person is a labor union or organization
under the Labor Code. It is an entity authorized by law to file a
case in behalf of its members. Although it may not have been
incorporated under the Corporation Law but registered under
the Labor Code. A legitimate labor organization may sue and be
sued in its registered name (Art. 242 [e], Labor Code of the
Philippines).
What are the others?
1) An estate of a deceased person may be a party to an
action. (Limjoco v. Intestate Estate of Fragante, 8 Phil.
776; Nazareno v. CA 343 SCRA 637)
2) The Roman Catholic Church may be a party and as to
its properties, the archbishop or diocese to which they
belong may be a party. (Barlin v. Ramirez 7 Phil 47;
Verzosa v. Fernandez 49 Phil. 627)
 3) A dissolved corporation may prosecute and defend
suits by or against it provided that the suits occur
within 3 years after its dissolution, and the suits are in
connection with the settlement and closure of its
affairs. (Sec. 122,
Corporation Code)
4) Under Sec. 21 of the Corporation Code of the
Philippines, a corporation by estoppel is precluded
from denying its existence and the members thereof
can be sued and be held liable as general partners.
5) A contract of partnership having a capital of three
thousand pesos or more but which fails to comply with
the registration requirements is nevertheless liable as
a partnership to third persons(Art. 1772 in relation to
Art.
1768 Civil Code).
6) A political party incorporated under Act 1459 (now BP
68, Corporation Code)
Remedy when a party impleaded is not authorized to be a
party- As to plaintiff:
Where the plaintiff is not a natural or a juridical person or an
entity authorized by law, a motion to dismiss may be filed on
the ground that “the plaintiff has no legal capacity to sue.” (Sec.
1[d] R 16) When plaintiff is not the real party in interest:
Also, if the plaintiff has capacity to sue but he is not the ‘real
party in interest’, the ground for dismissal is a ‘failure to state a
cause of action (Aguila vs. CA 319 SCRA 246; Balagtas vs. CA
317 SCRA 69) not lack of legal capacity to sue.’
As to defendant:
Where it is the defendant who is not any of the above, the
complaint may be dismissed on the ground that the “pleading
asserting the claim states no cause of action” or “failure to state
a cause of action” (Sec. 1[g], R 16) because there cannot be a
cause of action against one who cannot be a party to a civil
action.
I. REAL PARTIES IN INTEREST
Sec 2. Parties in interest. - A real party in
interest is the party who stands to be
benefited or injured by the judgment in
the suit, or the party entitled to the avails
of the suit. Unless otherwise authorized
by law or these Rules, every action must
be prosecuted or defended in the name of
the real party in interest. (2a)
Q: Who is a real party in interest?
A: A real party in interest is the party who stands to be
benefited or injured by the judgment in the suit or the party
entitled to the avails of the suit. (Section 2)
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That definition is taken from the leading case of SALONGA VS.
WARNER BARNES & CO. (88 Phil. 125). That is exactly how it is
defined and that definition has been repeated through the
years.
To be a real party- in- interest, the interest must be “real”,
which is present substantial interest as distinguished from a
mere expectancy or a future, contingent, subordinate or
consequential interest. (Rayo v. Metrobank, 539 SCRA 571;
Fortich v. Corona 289 SCRA 624; Figuracion v. Libi 539 SCRA
50. It is an interest that is material and direct, as distinguished
from a mere incidental interest in the question. (Samaniego v.
Aguila 334 SCRA 438; Mayor Rhustom Dagadag v. Tongnawa
450 SCRA 437).
The determination of who the real party-in-interest is requires
going back to the elements of a cause of action. Evidently the
owner of the right violated stands to be the real party-in-
interest as plaintiff and the person responsible for the
violation is the real party-in-interest as defendant.(Lee v.
Romillo 161 SCRA 589). Thus, in a suit for violation of a
contract, the parties-in-interest would be those covered by the
operation of the doctrine of relativity of contracts under Art.
1311 of the Civil Code, namely, the parties, their assignees and
heirs. Likewise in a suit for annulment of a contract, the real
parties in interest would be those who are principally or
subsidiarily bound by the contract. (Art. 1397 Civil
Code)
every action must be prosecuted or defended in the name
of the real party in interest
So a complaint is dismissible if it is not made in the name of the
real party in interest.
In an action to recover ownership over or title to a piece of land ,
you do not file a case against the tenant. He is not the real
party in interest. You must file the case against the owner of the
land.
Neither can your boyfriend file the case.
When you are riding in a common carrier which collided and
you were injured, do not file a case against the driver for
damages. Your contract is not with the driver. Your contract is
with the operator. So you file a case of culpa contractual against
the owner or operator.
GENERAL RULE: In a breach of contract, the real parties in
interest are the parties to the contract. So strangers, as a rule,
have no business suing in a contract because they are not real
parties in interest.
BALIWAG TRANSIT vs. CA - 169 SCRA 649 [1989 BAR]
FACTS: A student who was riding in one of the Baliwag
buses met an accident. So, an action was filed where the
parents and the injured boy were the co-plaintiffs against
Baliwag Transit. While the case was going on, the boy
entered into amicable settlement with the bus company.
Based on the settlement, Baliwag moved to dismiss the
case. The parents objected, “We are objecting because we
are also plaintiffs. We didn’t know about the settlement. We
were the ones who spent money, therefore it should not be
dismissed simply because our son is withdrawing the case.”
HELD: The parents are not the real party in interest. They
were not the passengers. The real parties in a contract of
carriage are the parties to the contract itself. “In the
absence of any contract of carriage between the
transportation company and the parents of the injured
party, the parents are not real parties in interest in an
action for breach of contract.”
Of course, if the child is a minor the parents can file as
representatives but not as principal party.
EXCEPTION: When there is a stipulation in the contract
favorable to a third person (stipulation pour autrui – Art. 1311,
NCC)
Example: Third-Party Liability (TPL) in insurance. A insured his
car with B for TPL. A bumped C. C can file a case against A and
B to recover from the insurance contract. In other words, while
only A and B are the parties to the insurance contract yet the
third party liability stipulation is intended to benefit a third
party who may be damaged by A while driving his car.
Also parties who have not taken part in a contract may show
that they have a real interest affected by its performance or
annulment. In other words, those who are not principally or
subsidiarily obligated in a contract, in which they had no
intervention, may show their detriment that could result from it.
Thus, Article 1313 of the Civil Code provides that “creditors are
protected in cases of contracts intended to defraud them.”
Further, Article 1381 of the Civil Code provides that contracts
entered into in fraud of creditors may be rescinded when the
creditors cannot in any manner collect the claims due them.
Thus, a creditor who is not a party to a contract can sue to
rescind the contract to redress the fraud committed upon him.
A mere agent, who is not an assignee of the principal cannot
bring suit under a deed of sale entered into in behalf of his
principal because it is the principal, not the agent who is the
real party in interest (Uy vs. CA 314 SCRA 69). In case the
action is brought against the agent, the action must be brought
against an agent acting in his own name and for the benefit of
an undisclosed principal without joining the principal, except
when the contract involves things belonging to the principal.
The real party-in-interest is the party who would be benefited or
injured by the judgment or is the party entitled to the avails of
the suit. An attorney-in-fact is not a real party-in-interest and
that there is no law permitting an action to be brought by and
against an attorney-in-fact (Carillo vs. CA 503 SCRA 66).
SALONGA vs. WARNER BARNES – 88 Phil. 125 [Bar Problem]
FACTS: A decided to go abroad but she has properties in
the Philippines. So she executed a special power of attorney
in favor of K giving the latter “full power to administer, to
collect all my money; to withdraw my money in the bank;
with full power to sue these people who owe me; with the
authority to hire a lawyer; and enter into a contract.
Practically, you are my alter ego.” And then A went abroad.
K started to manage the property. One of the tenants failed
to pay rentals. So in accordance with the authority, he hired
a lawyer. In preparation of the complaint, it was stated in
the caption, “K, plaintiff vs. L, defendant.”
ISSUE: Is the action properly filed?
64
HELD: NO. The real property in interest is the principal, the
owner of the property. K is only an attorney-in-fact. An
attorney-in-fact cannot use in his own name because he is
not the real party in interest. K is given the authority to sue,
to manage, hire a lawyer but not as the plaintiff because the
real party in interest is A. The complaint should be
captioned as “A, plaintiff vs. L, defendant.”
Q: Suppose the caption will read: “K, as attorney-in-fact of A,
plaintiff vs. L, defendant” is the complaint properly filed?
A: NO. This is even worse because K is admitting that he is only
an attorney-in-fact so it becomes more obvious that he is not
the real party in interest. If K wants to include his name, it
should read: “A, plaintiff, represented by K, his attorney-in-fact
vs. L, defendant.” Q: Does the law require A to come here to file
the case?
A: NO. Take note that the law does not require the principal (A)
to come back to file the case because the plaintiff can invoke the
jurisdiction of the court by filing the complaint and paying the
docket fee.
Should a lawful possessor be disturbed in his possession, it is
the possessor, not necessarily the owner of the property, who
can bring the action to recover the possession. The argument
that the complaint states no cause of action because the suit
was filed by a mere possessor and not by the owner is not
correct (Phil. Trust Company vs. CA 320 SCRA 719).
Suits for corporations:
When the corporate offices have been illegally searched, the
corporate officer is not the real party in interest to question the
search. The right to contest the transgression belongs to the
corporation alone which has a personality of its own separate
and distinct from that of an officer or a stockholder. The
objection to an unlawful search and seizure is purely personal
and cannot be availed of by third persons (Stonehill vs. Diokno
20 SCRA 383).
Derivative suit:
However, even if the cause of action belongs to the corporation,
if the board refuses to sue despite demand by the stockholders
to sue and protect or vindicate corporate rights, a stockholder is
allowed by law to file a derivative suit in the corporate name. In
such a suit, the real party-in-interest is actually the corporation
and the stockholder filing the action is a mere nominal party
(Asset Privatization Trust vs. CA 300 SCRA 579)
Partnerships:
Under Art. 1768 of the Civil Code a partnership has a juridical
personality separate and distinct from that of each of the
partners. Hence, if the contract was entered into by the
partnership in its name, it is the partnership, not its officers or
agents which should be impleaded in any litigation involving
property registered in its name. A violation of this rule will
result in dismissal of the complaint for failure to state a cause
of action (Aguila vs. CA 319 SCRA 345).
Failure to include the name of a party in the pleading
The mere failure to include the name of a party in the title of the
complaint is not fatal because the Rules of Court requires the
courts to pierce the form and go into the substance and not be
misled by a false or wrong name in the pleadings. The
averments are controlling and not the title. Hence, if the body
indicates the defendant as a party to the action, his omission in
the title is not fatal (Vlasons Enterprises vs. CA 310 SCRA 26).
Rule on ‘standing’ as distinguished from the concept or
‘real party-in-interest’
Locus standi is defined as a right of appearance in a court of
justice on a given question. IN private suits, standing is
governed by the ‘real party-in-interest’ rule found in
Section 2 Rule 3 of the Rules of Court which provides that
‘every action must be prosecuted or defended in the name
of the real party-in-interest’(Baltazar vs. Ombudsman GR
No. 136433 December 6, 2006)
However, the concept of ‘standing’ because of its
constitutional underpinnings is very different from
questions relating to whether or not a particular party is
a real party-in-interest. Although both are directed
towards ensuring that only certain parties can maintain
an action, the concept of standing requires an analysis of
broader policy concerns. The question as to who the real
partyin-interest is involves only a question on whether a
person would be benefitted or injured by the judgment or
whether or not he is entitled to the avails of the suit
(Kilosbayan Inc. vs. Morato 246 SCRA 540).
II. REPRESENTATIVE PARTY
Sec. 3. Representatives as parties. - Where
the action is allowed to be prosecuted or
defended by a representative or someone
acting in a fiduciary capacity, the
beneficiary shall be included in the title of
the case and shall be deemed to be the real
party in interest. A representative may be
a trustee of an express trust, a guardian, an
executor or administrator, or a party
authorized by law or these Rules. An agent
acting in his own name and for the benefit
of an undisclosed principal may sue or be
sued without joining the principal except
when the contract involves things
belonging to the principal.
(3a)
Section 3 is consistent with Section 2 because under Section 2,
you cannot sue and be sued if you are not the real party in
interest. Section 3 allows one who is not a real party in interest
to sue and be sued in behalf of somebody else but requires the
beneficiary to be named in the Complaint being the real party in
interest.
Example: GUARDIAN. Suppose J, a minor was injured, a case
for damages can be filed in behalf of the minor. A minor cannot
sue and be sued but she is the real party in interest. The law
allows the parents to come in and also be the plaintiff. The
parents are what we the representative party. The law still
requires for the minor to be included in the case. The law states
that “the beneficiary shall be included in the title of the case
and shall be deemed to be the real party in interest.”
In Oposa vs. Factoran GR No. 101083, 1993, minors
represented by their parents were held as real parties in interest
65
to file an action to annul timber license agreements issued by
the state under the following principles:
1. inter-generational responsibility;
2. inter-generational justice;
3. the right of the Filipinos to a balnced and healthful
ecology; and
4. minors repersent themselves and the generation to
come.
Example: TRUSTEE; EXECUTOR; ADMINISTRATOR. Another
example is a trustee of an express trust, or executor or
administrator of the estate of a deceased person. When a person
dies, what survives after him is his estate which represents
everything that is left behind. This later on will be given to his
heirs. But for the meantime under the law on succession, the
executor or administrator will take charge of his property.
Q: If the estate of the deceased has some collectibles, who will
file the case?
A: The administrator or executor as the representative party. If
you want to sue the estate, you should sue the estate through
the administrator or executor.
CHING vs. CA– 181 SCRA 9
FACTS: A wanted to sue D, who owes her a sum of money.
The problem is, she cannot locate D’s whereabouts. Also, A
is not certain whether D is dead or alive. So, to play it safe,
what A did was to file a case against the “defendant and/or
the estate of defendant.” A obtained a judgment against the
‘defendant and/or the estate of defendant.’
Later on when the judgment was enforced, it turned out
that D was already dead but he has properties left behind.
So, they started to take hold of his properties. Now, the
heirs of D challenged the decision.
ISSUE: Whether or not there was a valid judgment against the
‘defendant/or the estate of the defendant.”
HELD: The decision is void. “The decision of the lower court
insofar as the deceased is concerned, is void for lack of
jurisdiction over his person. He was not, and he could not
have been validly served with summons. He had no more
civil personality. His juridical personality, that is fitness to
be subject of legal relations, was lost through death (Arts.
37 and
42 Civil Code).”
“The same conclusion would still inevitably be reached
notwithstanding joinder of B’s estate as co-defendant. It is a
well-settled rule that an estate can sue or be sued through
an
executor or administrator in his representative capacity.”
So, the Court cited Section 3. In order to bind the estate,
you should sue the executor or the administrator of his
estate. So, either way, the case cannot prosper.
The last sentence of Section 3:
An agent acting in his own name and for
the benefit of an undisclosed principal
 may sue or be sued without joining the
principal except when the contract
involves things belonging to the principal.
The agent cannot sue because the principal is the real party in
interest. But when an agent acts in his own name and for the
benefit of an undisclosed principal, he may sue and be sued,
EXCEPT when the contract involves things belonging to the
principal. Under the exception, the principal has really to be
included. The agent cannot file a case where the principal will
lose his property without being named as part to the case.
Sec 4. Spouses as parties. - Husband and wife
shall sue or be sued jointly, except as
provided by law. (4a)
Normally, the husband and the wife should sue and be sued
together. Even if the wife borrowed money alone and you want
to sue the woman, still the husband should be included. Why?
In the property relationship between the husband and wife, they
are governed by absolute community or conjugal partnership.
Whether you like it or not, the implication of the wife is also the
implication of the husband because of the property relationship.
In the same manner, if the wife wants to collect, even if the
husband does not know anything about it, the husband should
still be named as party plaintiff, on the ground again that the
income that she can get redounds to the benefit of the conjugal
partnership.
And there were decided cases in the past where even if for
example, a wife sues without the husband, the defect is not
fatal but merely formal. The complaint should not be dismissed.
All that is to be done is to amend the complaint impleading the
husband. (Cuyugan vs. Dizon, 76 Phil. 80)
Q: Give an exception to that general rule that husband and wife
shall sue or be sued jointly.
A: The EXCEPTIONS are:
1) in case of Complete Separation of Property (Article 145,
Family Code), and 2) under Article 111, Family Code:
Art. 111. A spouse of age may mortgage,
alienate, encumber or otherwise dispose of
his or her exclusive property without the
consent of the other spouse and appear
alone in court to litigate with regard to the
same. (Family Code)
3) Another is when a spouse without just cause
abandons the other or fails to comply with his
or her obligations to the family with respect to
the marital, parental or property relations.
Sec 5. Minor or incompetent persons. - A
minor or a person alleged to be
incompetent, may sue or be sued, with the
assistance of his father, mother, guardian,
or if he has none, a guardian ad litem. (5a)
Section 5 is related to Section 3. The minor or incompetent
person must be assisted by the parents and considered as
representative party. Incompetent persons include insane
people or mentally retarded people. They are supposed to be
under the custody of other persons, the guardians. If no
66
guardian, the court has to appoint a guardian called the
guardian ad litem.
A person need not be judicially declared incompetent it being
sufficient that his incompetency be alleged in the corresponding
pleading.
III. PERMISSIVE PARTY
Sec 6. Permissive joinder of parties. - All
persons in whom or against whom any
right to relief in respect to or arising out
of the same transaction or series of
transactions is alleged to exist, whether
jointly, severally, or in the alternative,
may, except as otherwise provided in
these Rules, join as plaintiffs or be joined
as defendants in one complaint, where any
question of law or fact common to all such
plaintiffs or to all such defendants may
arise in the action; but the court may
make such orders as may be just to
prevent any plaintiff or defendant from
being embarrassed or put to expense in
connection with any proceedings in which
he may have no interest. (6)
Section 6 is known as permissive joinder of parties. This is
related to Section 5 [a] of Rule 2 on joinder of causes of action.
Q: May two or more persons join in one complaint as plaintiffs?
Or can two or more persons be joined together as defendants?
A: YES, under two conditions, to wit:
1.) There is a right to relief in favor of or against the
parties joined in respect to or arising out of the
same transaction or series of transactions; and
2.) There is a question of law or fact common to the
parties joined in the action.
An additional condition is that the such joinder is not otherwise
proscribed by the provision of the rules on jurisdiction and
venue.
Series of Transactions
This pertains to transactions connected with the same subject
matter of the suit.
PROBLEM: Suppose some passengers riding a particular
common carrier are injured because of an accident. All of them
want to sue the operator of the carrier for damages arising out
of the breach of contract of carriage. Under the Law on
Transportation, it is possible for each passenger to file his own
case because their causes of action are different from each
other. But can they be joined together in one complaint against
the common carrier?
A: YES because there is a common question of law or fact in the
causes of actions of the injured passengers: the evidence is
identical; the issues whether the carrier is at fault are the came;
the witnesses for both parties will be the same; the report will
be the same; the defense of the operator against one party will
be the same defense as against the other passenger. So, since
there is a common denominator on their causes of action, they
can be joined.
It would be different if the passengers were riding on different
buses belonging to the same company, and all of them met an
accident. What happened to Passenger No. 1 does not concern
Passenger No. 2. The evidence will not be the same. So, there is
no common denominator – no common question of fact.
Therefore, they cannot be joined.
PROBLEM: Suppose a story appeared in the Inquirer where 5
people were called as jueteng kings. They were allegedly
involved in jueteng. Now, the five of them want to sue the
Inquirer for damages arising from libel. Is it possible for the five
(5) people named in the article to file only one complaint against
the editor and publisher of the Inquirer?
A: YES because it is of the same story. Their names appeared in
the same story. It is not a different issue. So there is a common
question of fact and law in their cause of action.
PROBLEM: M, while driving a car, bumped another vehicle,
injuring the driver and causing injury to other passengers. So,
there are three offended parties : the owner of the vehicle, the
driver of the vehicle , and the passenger. There are three(3)
causes of action. Can they join in one complaint against Myra,
the owner of the car which bumped them?
A: YES because there is a common question of fact and law.
There is only one accident.
Q: But suppose the three of them will file 3 separate cases
against M, can it be done?
A: yes, because it is a permissive joinder of parties, not
mandatory.
Q: Why does the law encourage joinder of parties?
A: The following are the reasons:
1) to promote convenience in trial;
2) to prevent multiplicity of suits;
3) to expedite the termination of the litigation; and
4) to attain economy of procedure under which several
demands arising out of the same occurrence may be tried
together thus avoiding the repetition of evidence relating to
facts common to the general demands.
Now, take note that when there is joinder of parties, there is
automatically a joinder of causes of action. That is why one of
the conditions or limitations in joinder of causes of action is you
must observe the rule on joinder of parties. If joinder of parties
is improper under Rule 3, the joinder of causes of action is also
proper under Rule 2, Section 5
Principle: WHEN THERE IS JOINDER OF PARTIES, THERE
IS ALSO A JOINDER OF CAUSES OF ACTION. BUT THERE
CAN BE A JOINDER OF CAUSES OF ACTION WITHOUT A
JOINDER OF PARTIES.
EXAMPLE: When there is only one plaintiff and one defendant:
Suppose Melissa will secure three (3) loans from me.
Q: How many causes of action do I have if M will not pay me?
A: Three
Q: Now, can I join them in one complaint?
67
A: Yes.
Q: Is there joinder of causes of action?
A: Yes.
Q: Is there joinder of parties?
A: NONE, because there is only one plaintiff and one defendant.
So, there can be joinder of causes of action without joinder of
parties because there is only one plaintiff and one defendant.
But if you join parties in Rule 3, automatically, there is joinder
of causes of action. This is the relationship of these two
provisions.
Finally, the last two types of parties to the action are the so-
called indispensable parties and necessary parties. (Section 7
and Section 8, respectively)
INDISPENSABLE PARTY and NECESSARY
PARTIES
Sec. 7. Compulsory joinder of indispensable
parties. Parties in interest without whom
no final determination can be had of an
action shall be joined either as plaintiffs
or defendants. (7)
Sec. 8. Necessary party. A necessary party
is one who is not indispensable but who
ought to be joined as a party if complete
relief is to be accorded as to those already
parties, or for a complete determination or
settlement of the claim subject of the
action. (8a)
Notes:
An indispensable party is a real party in interest
without whom no final determination can be had of an
action. (Sec. 7) Without the presence of this party, the
judgment cannot attain real finality. (Servicewide
Specialists, Inc. v. CA 318 SCRA 493; De Castro v.
CA 384 SCRA 607)
(See also Lucman vs. Malawi GR No. 159794 December 19,
2006)
A person is not an indispensable party, however, if his interest
in the controversy or subject matter is separable from the
interest of the other parties, so that it will not necessarily be
directly or injuriously affected by a decree which does complete
justice between them. Also, a person is not an indispensable
party if his presence would merely permit complete relief
between him and those already parties to the action, or if he has
no interest in the subject matter of the action. It is not a
sufficient reason to declare a person to be an indispensable
party that his presence will avoid multiple litigation. In a joint
obligation for instance, the interest of one debtor is separate
and distinct from that of his co-debtor and a suit against one
debtor does not make the other an indispensable party to the
suit.
Compulsory joinder of indispensable parties
Although normally, a joinder of parties is permissive (Sec. 6
Rule 3), the joinder of a party becomes compulsory when the
one involved is an indispensable party. Clearly, the rule directs
a compulsory joinder of indispensable parties (Sec. 7, Rule 3).
The presence of all indispensable parties is a condition sine
qua non for the existence of judicial power. It is precisely
when an indispensable party is not before the court that the
action should be dismissed. Thus, the plaintiff is mandated to
implead all the indispensable parties considering that the
absence of one such party renders all subsequent actions of the
court null and void for want of authority to act, not only as to
their absent parties but even as to those present. One who is
not a party to a case is not bound by the decision of the court;
otherwise, he will be deprived of his right to due process
(Sepulveda, Sr. vs. Pelaez 450 SCRA 302). Dismissal for
failure to implead an indispensable party
It has been ruled on various occasions that since the joinder of
indispensable parties is compulsory, the action should be
dismissed when indispensable parties are not impleaded or are
not before the court. The absence of indispensable parties
renders all subsequent actions of the trial court null and
void for want of authority to act, not only as to the absent
parties but even as to those present (MWSS vs. CA 297
SCRA 287).
Need of an order to implead an indispensable party
It is noteworthy that the Court in its rulings did not hold that
the failure to join an indispensable party results in the outright
dismissal of the action. An outright dismissal is not the
immediate remedy authorized by the Rules because under
the Rules a nonjoinder (or misjoinder) of parties is not a
ground for dismissal of an action. Instead, parties may be
dropped or added by the court on motion of any party or on
its own initiative at any stage of the action and on such
terms as are just (Sec. 11 Rule 3). It is when the order of the
court to implead an indispensable party goes unheeded may
the case be dismissed. The court is fully clothed with the
authority to dismiss a complaint due to the fault of the
plaintiff as when, among others, he does not comply with
any order of the court (Sec. 3 Rule 17; Plasabas vs. CA GR
No. 166519, March 31, 2009). (See also Pamplona
Plantation Co. vs. Tinghil 450 SCRA 421).
Effect of absence of indispensable party
In a relatively recent case, the Court held that whenever it
appears to the court in the course of a proceeding that an
indispensable party has not been joined, it is the duty of the
court to stop the trial and to order the inclusion of such party.
The absence of an indispensable party renders all subsequent
actuations of the court null and void, for want of authority to
act not only as to the absent parties, but even as to those
present. Accordingly, the responsibility of impleading all the
indispensable parties rests on the plaintiff. The defendant does
not have the right to compel the plaintiff to prosecute the action
against a party if he does not wish to do so, but the plaintiff will
have to suffer the consequences of any error he might commit in
exercising his option (Uy vs. CA 494 SCRA 535).
Q: Distinguish indispensable from necessary party.
A: An INDISPENSABLE PARTY must be joined under any and
all conditions, his presence being a sine qua non of the
68
exercise of judicial power, for without him, no final
determination can be had of the action. (Borlasa vs. Polistico, 47
Phil. 345) Stated otherwise, an indispensable party must be
joined because the court cannot proceed without him. Hence,
his presence is mandatory.
A NECESSARY PARTY ought to be joined whenever possible
in order to adjudicate the whole controversy and avoid
multiplicity of suits, but if for some reason or another he
cannot be joined, the court may proceed without him and the
judgment shall not prejudice his rights. (Ibid.) His presence is
not mandatory because his interest is separable from that of the
indispensable party. He has to be joined whenever possible to
afford complete relief to those who are already parties.
Q: Give examples of indispensable party.
A: In an action for partition of land, all the co-owners thereof
are indispensable parties. (De Lara vs. De Lara, 2 Phil. 294) In
an action for annulment of partition, all of the heirs must be
made parties. (Caram vs. CA, 101 Phil. 315) In an action for
recovery of ownership of land, the person who claims to be the
owner of the land is the indispensable party defendant and not
the one in possession as tenant. (Sanidad vs. Cabotaje, 5 Phil.
204; Manza vs. Santiago, 96 Phil. 938)
Joint debtor
He is an indispensable party in a suit against him but a
necessary party in a suit against his co-debtor.
Solidary debtor
In a suit brought by a creditor against one solidary debtor, the
other solidary debtor is neither indispensable nor a necessary
party.
Q: Give examples of necessary party.
A: In an action for collection of debt instituted by the creditor
against the surety, the principal debtor is merely a necessary
party. (Vaño vs. Alo, 95 Phil. 495) In an action for recovery of
debt instituted by the creditor against the debtor, the guarantor
or surety is merely a necessary property. (Ibid.) In an action for
foreclosure of a real estate mortgage instituted by the first
mortgagee, the second mortgagee is merely a necessary party.
(Somes vs. Gov’t of Phil., 62 Phil. 432)
REVIEW: What is the difference between a surety and a
guarantor? The liability of guarantor to the creditor is only
secondary. Meaning, the guarantor is only liable to the creditor
if the principal debtor cannot pay like when the debtor is
insolvent. On the other hand, a surety is principally liable to
the creditor whether or not the debtor can pay.
PROBLEM: In credit transactions, there is a creditor, debtor
and surety. Debtor borrowed money from the creditor, then
another acted as the surety. Now, suppose the debtor will not
pay, the creditor files now a case against the surety without the
debtor. The debtor was not included in the case.
Q: Can the case proceed even without the debtor being sued?
A: YES, the case may proceed.
 Now, the surety may be ordered to pay who can sue the
principal debtor for reimbursement. Meaning, there is still a
future case. Thus, there could be no complete relief between
those who are parties. So, the debtor is a necessary party, and
not indispensable. But it is advisable to join the debtor in one
case, so that when the creditor claims from the surety, the latter
can automatically claim from the debtor. Multiplicity of suits is
then, avoided.
A and B are the signatories in a PN which reads: “We promise to
pay to the order of C P1M on February 27, 2009. On due date
the debtors failed to pay.
(a) May C sue A alone?
Yes. The cause of action against A is separate and distinct
from the cause of action against B. The tenor of the note
discloses merely a joint obligation. In a joint obligation the
credit or debt shall be divided into as many equal shares as
there are creditors and debtors, the credits or debts being
considered distinct from each other. (Art. 1208 CC). Being
debtors in a joint obligation, the debtors then are liable
separately for P500,000.00 each.
(b) Is A in a suit against him by C a necessary or an
indispensable party? He is an indispensable party.
Without him being impleaded as defendant, C cannot
collect the P500,000.00 share of A. Without A there
cannot be a final determination of the case against
him.
(c) In the suit by C against A is B a necessary or an
indispensable party? B is not an indispensable party.
C can collect from A P500,000.00 without impleading
B. He is only a necessary party. Without B being made
a party to the action, C cannot have a complete relief,
i.e., he cannot collect his entire credit of P1M. If he
desires a complete recovery, B must be impleaded.
(3) In the above example, assuming that the debtors bound
themselves to pay the P1M solidarily, would B an indispensable
or necessary party to a suit by C against A? He would not be a
necessary party. Complete relief could be had by C without
joining B because the obligation is solidary. A could be ordered
to pay the entire obligation of P1M. Neither is B an
indispensable party. There could be a complete and final
determination of the action for a sum of money without B being
joined.
Solidarity does not make a solidary debtor an indispensable
party in a suit filed by the creditor against another solidary
debtor. (Republic v. Sandiganbayan 173 SCRA 72; Operators
Inc. v. American Biscuit Company 154 SCRA 738)
(4) B Bought a car from S on an installment basis. A chattel
mortgage was executed on the car in favor of S to secure the
obligation. Before the payment was completed, B sold the car to
D. It was agreed between B and D that D would be responsible
for the monthly installments. D failed to pay three installments.
May S sue D alone in the foreclosure or replevin suit? He
cannot. B must be made defendant. B is an indispensable party
in relation to S. The foreclosure or replevin is premised on
the default of B, the debtor. S would have no right to
foreclose the mortgage or repossess the car without
establishing the default of B unless the obligation of B to S
69
was assigned to D with the consent of S thereby novating
the obligation.
PROBLEM: K borrowed money from D. A is the guarantor. D
filed a case against K. She did not include the guarantor.
Q: Can the case proceed even without the guarantor?
A: YES because the guarantor is merely a necessary party. And
if the debtor turns out to be insolvent, the creditor will now file
another case against the guarantor.
REVIEW: What is the difference between joint debtors and
solidary debtors? In solidary, the creditor can collect the whole
obligation from any of the debtors without prejudice to the right
of the latter for reimbursement of his share in the obligation
from his codebtors. On the other hand, in joint obligation, the
creditor can only get from a debtor the latter’s share in the
whole obligation. Meaning, the creditor cannot compel the
debtor to pay the share of his co-debtor. Kanya-kanya tayo.
PROBLEM: M and C are JOINT debtors of P100,000 (50-50
sharing). D is the creditor. Both did not pay D.
Q: If D files a case against M only, can the case proceed without
C?
A: YES but D can only collect from M up to P50,000 because of
their joint obligation. C is only necessary insofar as M’s share is
concern. But M is indispensable party insofar as his share is
concern.
Q: But if D wants to collect the entire P100,000, what should
she do?
A: She should file a case against both M and C.
PROBLEM: M and C are SOLIDARY debtors of P100,000 (50-50
sharing). D is the creditor. Both did not pay D.
Q: If D files a case against M only, can the case proceed without
C?
A: YES and M is required to pay D the whole amount of the debt
because of solidary obligation. Then M can proceed against C for
reimbursement. Be is merely necessary party.
Sec. 9. Non-joinder of necessary parties to be
pleaded. Whenever in any pleading in
which a claim is asserted a necessary party
is not joined, the pleader shall set forth his
name, if known, and shall state why he is
omitted. Should the court find the reason
for the omission unmeritorious, it may
order the inclusion of the omitted
necessary party if jurisdiction over his
person may be obtained.
The failure to comply with the order for his
inclusion, without justifiable cause, shall
be deemed a waiver of the claim against
such party.
The non-inclusion of a necessary party
does not prevent the court from
proceeding in the action, and the
judgment rendered therein shall be
 without prejudice to the rights of such
necessary party. (8a, 9a)
Duty of Pleader When a Necessary Party is not joined
While a necessary party is not indispensable to the final
determination of the action, said party ought to be joined
whenever possible. If a pleader has no intent to implead a
necessary party, the pleader is under obligation to: (a) set forth
the name of said necessary party, if known, and (b) state the
reason why the necessary party is omitted. A reason justifying
the nonjoinder of a necessary party is when said party is
outside the jurisdiction of the court.
Effect of justified failure to implead a necessary party
Assuming that a necessary party cannot be impleaded, his non-
inclusion does not prevent the court from proceeding with the
action. The judgment rendered shall be without prejudice to the
rights of such necessary party.
When court may order joinder of a necessary party and
effect of failure to comply
However, if the court finds no valid reason for not impleading a
party, the court may order the inclusion of the necessary party
under Section 9. And take note that under the new rules, the
failure to comply with the order of inclusion without justifiable
cause shall be deemed a waiver of the claim against such
(necessary) party.
Sec. 10. Unwilling co-plaintiff. If the consent
of any party who should be joined as
plaintiff cannot be obtained, he may be
made a defendant and the reason therefor
shall be stated in the complaint. (10)
This is particularly true with INDISPENSABLE parties because
the case cannot proceed without him/her.
EXAMPLE: There are 4 brothers and 1 sister. They have to file a
case against somebody to recover property which they believe
was owned by their parents. Then, brother 4 say to sister 1, “Let
us file a case.” But sabi ni sister 1, “Pilitin mo muna ako.” Then
she says, “Ayoko nga, hindi mo ako pinilit eh!” Meaning, all of
them will suffer because ayaw ni sister 1 mag-file ng kaso.
Q: Now, what is the remedy of the 4 brothers?
A: Under Section 10, include the one who refused as one of the
defendants. If there is unwilling plaintiff, name him as
defendant whether he likes it or not.
MISJOINDER AND NON-JOINDER OF PARTIES
Sec. 11. Misjoinder and non-joinder of parties.
Neither misjoinder nor non-joinder of
parties is ground for dismissal of an
action. Parties may be dropped or added
by order of the court on motion of any
party or on its own initiative at any stage
of the action and on such terms as are
just. Any claim against a misjoined party
may be severed and
proceeded with separately. (11a)
This is similar to Section 6 of Rule 2 – misjoinder of causes of
action is not a ground for dismissal of an action. Misjoinder or
70
non-joinder at parties is not a ground for a motion to dismiss
because at any stage of the case, the court can order a
misjoined party to be removed or a party not joined to be
included.
Q: Do you know what ‘MISJOINDER of parties’ mean?
A: It means that two or more parties should not be joined but
they are improperly joined. A good example is, if there is no
common question of fact or law. Meaning, you do not have any
business to be here but you are joined or misjoined. That is
what we call misjoinder of parties. It is also known as “spurious
class suit.”
Well, ‘NON-JOINDER’ is different. A party who should be joined
was not joined such as a necessary party.
Q: What happens if a party is misjoined or if there is a non-
joinder, should the case be dismissed?
A: No, that is not a ground for dismissal.
Q: So what is the remedy then?
A: The remedy is to order the removal of the party who is
misjoined, or to order the inclusion of the party who should be
joined. And that is not a defect which should cause the
dismissal of the case because the court can always issue an
order ordering the removal of a misjoined party or the inclusion
of joinder of a party who should be included.
Effect of failure to obey order of the court to add or drop a
party
Even if neither misjoinder nor non-joinder is a ground of
dismissal of the action, the failure to obey the order of the court
to drop or add a party is a ground for the dismissal of the
complaint under Sec. 3, R 17.
Q: Does it mean to say therefore, that the plaintiff has the
license to include anybody in an action? Like for example, I
have a case against somebody in the class, the trouble is in the
meantime, I cannot identify who among you who did the wrong
to me. So I will file a case against all of you. Anyway later on, I
can dump you. Now, is this allowed?
A: NO. That is not a license. What the law contemplates,
according to the SC, the party was joined in good faith believing
that he was a defendant but actually it turned out to be wrong.
So, you have no right to sue anybody just like that. That is not
an excuse for suing any party left and right. In the case of
REPUBLIC vs. SANDIGANBAYAN – 173 SCRA 72 [1989]
HELD: Section 11 of Rule 3 “does not comprehend
whimsical and irrational dropping or adding of parties in a
complaint. What it really contemplates is erroneous or
mistaken nonjoinder and misjoinder of parties. No one is
free to join anybody in a complaint in court only to drop him
unceremoniously later at the pleasure of the plaintiff. The
rule presupposes that the original inclusion had been made
in the honest conviction that it was proper and the
subsequent dropping is requested because it turned out
that such inclusion was a mistake. And this is the reason
why the rule ordains that the dropping is ‘on such terms as
are just’” (also Lim Tan Hu vs. Ramolete 66 SCRA 425).
Note: that objections to defects in parties should be made at the
earliest opportunity, i.e. the moment such defet becomes
apparent, by a Motion to Strike the Names of the Parties
impleaded. Objections to misjoinder cannot be raised for the
first time on appeal.
CLASS SUIT
SEC. 12. Class suit. When the subject
matter of the controversy is one of
common or general interest to many
persons so numerous that it is
impracticable to join all as parties, a
number of them which the court finds to
be sufficiently numerous and
representative as to fully protect the
interests of all concerned may sue or
defend for the benefit of all. Any party in
interest shall have the right to intervene
to protect his individual interest. (12a)
GENERAL RULE: if there are several real parties in interest,
they shall be included in the case whether indispensable or
necessary. Example: There are 30 of us. The general rule is
that all parties in interest, indispensable or necessary shall be
included because under Sec. 2 “every action must be
prosecuted or defended in the name of the real party-in-
interest.”
EXCEPTION: to the General Rule: Class Suit.
A class suit is an action where one or more may sue for the
benefit of all implying that the parties are so numerous and it is
impracticble to bring them all to court.
The requisites for said class action must also be complied with.
Meaning, some of you will sue to represent the rest. That is also
known as the “doctrine of virtual representation.” The
concept of a class suit was first enunciated in the old case of
BORLAZA vs. POLISTICO – 47 Phil. 345
FACTS: This case has something to do with raffle. A group
of people decided to form an association which they called
“Turnuhang Polistico.” You become a member of this
association by contributing a certain sum of money. And
then every Sunday after mass, half of the collection will go
to the treasurer of the association. The other half will be
raffled off. This has been going on for months and years.
The time came when the funds of the association became
very big. Some of the members, in behalf of all the
members, decided to file a case against the officers to
render an accounting of all the amounts. The real parties
in interest would be the members.
ISSUE: Is the suit filed by some members in behalf of some
members proper?
HELD: YES, because if We will require all the members to
appear, it will be quite impossible. Therefore, some
members must be made to sue but only in behalf of all the
members who are not around and it is impracticable to
bring them all to the court. A number of them may sue for
the benefit of all.
71
An action does not become a class suit merely because it is
designated as such in the pleadings. Whether the suit is or
is not a class suit depends upon the attendant facts.
(Mathay v. Consolidatred Bank & Trust Company, 58
SCRA 559; Borlasa v. Polistico 47 Phil. 345)
Q: What are the CONDITIONS FOR A VALID CLASS SUIT?
A: Under Section 12, the following are the conditions of a
valid class suit:
1) The subject matter of the controversy is one of
common or general interest to many persons
(such as the funds of the association in the case
of
POLISTICO); and
2) The parties are so numerous that it is
impracticable to bring them all before the court;
3) The parties actually before the court are
sufficiently numerous and representatives as to
fully protect the interests of all concerned; and
4) The representatives sue or defend for the benefit
of all. Berses v. Villanueva 25 Phil. 473; Sulo ng
Bayan, Inc. v. Araneta 72 SCRA 347)
A class suit does not require a commonality of interest in the
questions involved in the suit. What is required by the Rules
is a common or general interest in the subject matter of the
litigation. The ‘subject matter’ of the action is meant the
physical, the things real or personal, the money, lands,
chattels, and the like, in relation to the suit which is
prosecuted and not the delict or wrong committed by the
defendant. It is not also a common question of law that
sustains a class suit but a common interest in the subject
matter of the controversy. (Mathay v. Consolidated & Trust
Bank 58 SCRA 559)
There is no class suit in an action filed by 400 residents
initiated through a former mayor, to recover damages sustained
due to their exposure to toxic wastes and fumes emitted by the
cooking gas plant of a corporation located in the town. Each of
the plaintiffs has a separate and distinct injury not shared by
other members of the class. Each supposed plaintiff has to
prove his own injury. There is no common or general interest in
the injuries allegedly suffered by the members of the class.
There is no class suit in an action for damages filed by the
relatives of the fatalities in a plane crash. There is no common
or general interest in the injuries or death of all passengers in
the plane. Each has a distinct and separate interest which must
be proven individually.
Example is a taxpayer’s suit – filed in behalf of all the taxpayers
in the Philippines. And there is no specific number of persons
that is provided by law.
Another example is a stckholder's derivative suit, though both
are subject to the other requisites of the corresponding
governing law especially on the issue of locus standi. (Regalado,
p. 97)
Now, we will go to some interesting cases on class suit decided
by the Supreme Court:
SULO NG BAYAN vs. ARANETA, INC – 72 SCRA 347 [1976]
FACTS: This concerns the big property of the Araneta’s in
Quezon City. It has been the subject matter of litigation for
the past years – 3 or 4 decades. It is a big track of land in
Quezon City occupied by so many people who want to
acquire it. They are questioning the title of the Araneta’s
So, Sulo (torch) ng Bayan is the association of squatters.
Since the properties of the Araneta is very big, they
subdivided it. Then a case was filed by Sulo ng Bayan
Association against Araneta to annul the title of the latter.
ISSUE #1: Whether or not the action was filed in the name of
the real in interest.
HELD: Sulo ng Bayan is not the real party in interest. It
violates Section 2 – “the action must be prosecuted and
defended in the name of the real parties in interest.” The
members occupying the land are the plaintiffs. The
association is not the one occupying the lot. So, the first
question is, who should be the plaintiff? It should be the
members.
ISSUE #2: Whether or not the action was properly pleaded
as a class suit
HELD: NO. This is the more important reason why they
cannot qualify as a class suit: In a class suit, the subject
matter is of common interest to all.
To illustrate:
You are Occupant No. 1, and occupies a particular lot over
which he/she has interest in but he/she does not have
interest over the other lots which he/she does not occupy. If
that is so, then the subject matter is not of common
interest. The interest of one occupant is only on the lot he
occupies.
What should be done is for all of them to sue together to cover
the entire property, for each one has a lot. So, in that case,
Section 6 should be applied – permissive joinder of parties
because there is a common question of fact. This is more of
permissive joinder of Parties rather than a class suit. That’s why
you can confuse Section 6 with Section 12. But the permissive
joinder of parties requires that all should be impleaded. Unlike
in a class suit, the subject matter is of interest to everybody and
we cannot all be joined because we are so numerous.
BULIG-BULIG KITA KAMAGANAK ASSOCIATION, ET AL vs.
SULPICIO LINES – May 19, 1989
RE: Doña Paz Tragedy
FACTS: There we so many relatives who filed a case against
Sulpicio Lines and there was an attempt to file a class suit
in behalf of everyone who were drowned including those
who were not identified.
HELD: That cannot be. The survivors have no interest in
the death of other passengers. The interest in this case is
individual. What would have been proper is permissive
joinder of parties because of common question of tact or
law, but not class suit.
OPOSA vs. FACTORAN – 224 SCRA 12 [1993]
FACTS: Oposa et al were all minors. Some were small boys
duly represented by their parents. They filed a case against
72
then DENR Secretary Factoran. The prayer in the case is to
order the DENR to cancel all existing Timber License
Agreements (TLA’s), to cease and desist from proceeding,
accepting, processing, renewing all accruing new TLA’s. So,
in effect, it prays for a total log ban in the country to
preserve the remaining forest all over the Philippines.
These young boys sue with their parents. They are suing in
their behalf, in behalf of the other citizens who are of their
age because they stand to suffer if the environment will be
deteriorated. They say that they are entitled to the full
benefit, use and enjoyment of the natural resources of our
country’s rich tropical rainforests. They say, the case was
filed for themselves and others for the preservation of our
rainforest and we are so numerous that it is impracticable
to bring all plaintiffs to court. They say that they represent
their generations and generations yet unborn.
HELD: The civil case is indeed a class suit. The case
however has a special and novel element. The personality of
the minors to sue for the succeeding generations is based
on the concept of inter-generational responsibility insofar as
a balanced and healthful ecology is concerned. Every
generation has a responsibility to preserve the ecology. The
minors’ right to a healthful environment constitute at the
same time the performance of the obligation to ensure the
protection of the rights or the generations to come.
Q: In case of doubt, should a class suit be allowed?
A: NO. When the issue is not so clear, a class suit should not be
allowed because class suit is an exception to the general rule
that all parties should be included.
CADALIN vs. POEA ADMINISTRATOR – 238 SCRA 721 [1995]
HELD: While it is true that class suit is allowed, it should
be allowed with caution because the fact that you represent
others is only a fiction of law. For all you know, those others
may not want to be represented. That is why the court is
extra- cautious in allowing class suits because they are the
exceptions to the condition sine qua non requiring joinder of
all indispensable parties.
In an improperly instituted class suit, there would be no
problem it the decision secured is favorable to the plaintiffs.
The problem arises where the decision is adverse to them.
In which case, the parties who are impleaded through their
selfappointed representatives would surely plead denial of
due process.
Q: Distinguish a representative suit from a class suit.
A: In the case of
LIANA’S SUPERMARKET vs. NLRC – 257 SCRA 186 [May 31,
1996]
FACTS: A labor union filed a case against the employer in
behalf of hundreds of employees. Is this a representative
suit or a class suit?
HELD: “What makes the situation a proper case for a
class suit is the circumstance that there is only one
right or cause of action pertaining or belonging in
common to many persons, not separately or severally
to distinct individuals. The object of the suit is to obtain
relief for or against numerous persons as a group or as an
integral entity, and not as separate, distinct individuals
whose rights or liabilities are separate from and
independent of those affecting the others.”
In a representative suit, there are different causes of action
pertaining different persons.
“In the present case, there are multiple rights or causes of
action pertaining separately to several, distinct employees
who are members of respondent Union. Therefore, the
applicable rule is that provided in Rule 3 on Representative
Parties. Nonetheless, as provided for in the Labor Code, a
legitimate labor organization has the right to sue and be
sued in its registered name. This authorizes a union to file
a representative suit for the benefit of its members in the
interest of avoiding an otherwise cumbersome procedure of
joining all union members in the complaint, even if they
number by the hundreds.” For convenience, the Labor Code
allows a union to file a representative suit.
It is important to note the following:
1) CLASS SUIT
2) REPRESENTATIVE SUIT
3) DERIVATIVE SUIT – only peculiar to the corporation
law where the minority files a suit in behalf of the
entire corporation because an intra-corporate remedy
is useless or because of the failure of the board of
directors, deliberate or otherwise, to act in protection
of the corporation (Black’s 5 th Ed. 399; Lim vs. Lim-Yu
352 SCRA 216).
In a derivative, suit, the cause of action belongs to the
corporation and not to the stockholder who initiates the suit. In
a class suit, the cause of action belongs to the members of the
class.
Class suit and permissive joinder of parties
In a class suit there is one single cause of action pertaining to
numerous persons while in permissive joinder there are
multiple causes of action separately belonging to several
persons.
ALTERNATIVE DEFENDANTS
Sec. 13. Alternative defendants. Where the
plaintiff is uncertain against who of several
persons he is entitled to relief, he may join
any or all of them as defendants in the
alternative, although a right to relief
against one may be inconsistent with a
right of relief against the other. (13a)
Alternative defendants is also related to alternative causes of
action – even if your right against one is inconsistent with your
right to relief against the other party, you may file a suit against
the alternative defendant. (c.f. Rule 2, Section 5 – Joinder of
Causes of Action)
73
You filed a case against the operators of two vehicles. In effect,
your cause of action is either culpa aquiliana or culpa
contractual. Is that not inconsistent? The law says, “although a
right to relief against one may be inconsistent with a right
against the other.” In other words, even if the two causes of
action are inconsistent with each other, it is allowed.
As a matter of fact, this is the best policy because the plaintiff is
a sure winner. The only question is, who among the two will be
held liable.
Although the law is silent, if there is such a thing as “alternative
defendants,” there is no reason why the grounds for “alternative
plaintiffs” should not be allowed.
Q: May plaintiffs join in the alternative?
A: YES, plaintiffs may join in the alternative under the same
principle as alternative joinder of defendants. When several
persons are uncertain as to who among them is entitled to relief
from a certain defendant, they may join as plaintiffs in the
alternative. This is also sanctioned by the rule on permissive
joinder of parties (Pajota vs. Jante, L-6014, Feb. 8, 1955). Thus,
the principal and his agent may join as plaintiffs in the
alternative against a defendant. If the agency is proved, the
relief is awarded to the principal. If not, award is then made to
the agent.
Just as the rule allows a suit against defendants in the
alternative, the rule also allows alternative causes of action and
alternative defenses (Sec. 2 Rule 8; Sec.5[b] Rule 6; Sec. 20,
Rule 14)
Assume that X, a pedestrian, was injured in the collision of two
vehicles. He suffered injuries but does not know with certainty
which vehicle caused the mishap. What should X do if he wants
to sue?
He should sue the vehicle drivers/owners in the alternative.
P sent some goods to D pursuant to a contract. The goods were
delivered to E, the known agent of D. D did not pay P. D
contends that he has not received the goods. P claims otherwise
and insists that D had received the goods. Should P sue D or
should he sue E? P should sue both but in the alternative.
Plaintiff may sue the shipping company and the arrastre
operator alternatively for the recovery of damages to goods
shipped through a maritime vessel (Rizal Surety & Insurance
Company vs. Manila 70 SCRA 187).
Sec. 14. Unknown identity or name of
defendant. Whenever the identity or name
of a defendant is unknown, he may be
sued as the unknown owner, heir, devisee,
or by such other designation as the case
may require; when his identity or true
name is discovered, the pleading must be
amended accordingly.
(14)
Requisites:
1) there is a defendant;
2) his/her identity is unknown;

3) fictitious name may be used because of ignorance of
defendant's true name and said ignorance is alleged in
the complaint;
4) identifying description may be used; sued as unknown
owner, heir, deviseee or other designation;
5) amendment to the pleading when true name
discovered; and
6) defendant is the defendant being sued, not a mere
additional defendant.
Service of summons upon a defendant whose identity is
unknown may be made by publication in a newspaper of
general circulation in accordance with Sec. 14 of Rule 14.
Q: Can you sue somebody who is unknown?
A: YES, under Section 14.
BAR PROBLEM: While L was walking on the street. He was
bumped by a car, say a Toyota Altis, 2001 model, color blue.
Now, so far, he could not determine who is the owner. If you are
the lawyer of L, how would you sue the defendant?
A: Under Section, I will sue the owner of that car as an
unknown defendant. I can place in my complaint, “L’, plaintiff,
vs. the registered owner of Honda motor vehicle with plate
number so and so.” And later if you discover the true identity of
the owner, we can amend the complaint to place the name of
the defendant.
Section 14 is similar with Rule 110 in Criminal Procedure – a
case may be filed against an unknown accused.
RULE 110, SEC. 7. Name of the accused. – The
complaint or information must state the name and
surname of the accused or any appellation or
nickname by which he has been or is known. If his
name cannot be ascertained, he must be described
under a fictitious name with a statement that his
true name is unknown.
If the true name of the accused is
thereafter disclosed by him or appears in
some other manner to the court, such true
name shall be inserted in the complaint or
information and record. (7a)
ENTITY WITHOUT JURIDICAL PERSONALITY AS
DEFENDANT
Sec. 15. Entity without juridical personality as
defendant. When two or more persons not
organized as an entity with juridical
personality enter into a transaction, they
may be sued under the name by which
they are generally or commonly known.
In the answer of such defendant, the
names and addresses of the persons
composing said entity must all be revealed.
Requisites:
1) there are two or more persons not organized as a
juridical entity;
2) they enter into a transaction;
3) a wrong or delict is committed against a third person
in the course of such transactions.
Rule 1, Section 1 provides that only natural of juridical persons
may be sued.
is
Entity without juridical personality as defendant. Under the old
law, this was known as suing two or more persons involved in a
business under a common name. When two or more persons
transact in a business under a common name, they may be
sued under their common name.
Q: Who are really the defendants here?
A: The persons involved.
Now, it is worded in this manner: “When two or more persons
not organized as an entity with juridical personality,” instead of
a ‘common name.’ You cannot sue the entity because it has no
juridical personality. But you do not also know the members of
that entity, so the law allows you to file a case against the
entity.
Under the second paragraph of Section 15, when the defendants
file an answer, they must file under their names as they are
really the real parties in interest. When the lawyer answers the
complaint, he is duty-bound to provide the names of all the
defendants.
Q: How do you summon this kind of defendant?
A: Rule 14, Section 8:
RULE 14, Sec. 8. Service upon entity without
juridical personality. When persons
associated in an entity without juridical
personality are sued under the name by
which they are generally or commonly
known, service may be effected upon all
the defendants by serving upon any one of
them, or upon the person in charge of the
office or place of business maintained in
such name. But such service shall not bind
individually any person whose connection
with the entity has, upon due notice, been
severed before the action was brought. (9a)
Correlate this with Rule 36, Section 6:
Sec. 6. Judgment against entity without
juridical personality. When judgment is
rendered against two or more persons sued
as an entity without juridical personality,
the judgment shall set out their individual
or proper names, if known. (6a)
GENERAL RULE: actions must be filed against real parties in
interest.
EXCEPTIONS: (When may an action be filed without naming all
the parties in involved?)
1. Class suit (Section 12, Rule 3);
74
 2. Entity without juridical personality (Section 15,
Rule
3);
3. Any co--owner may bring an action for ejectment
(Article 487, New Civil Code)
Instances where substitution of parties is proper
EFFECT OF DEATH OF A PARTY
Sec. 16. Death of party; duty of counsel.
Whenever a party to a pending action dies,
and the claim is not thereby extinguished,
it shall be the duty of his counsel to
inform the court within thirty (30) days
after such death of the fact thereof, and to
give the name and address of his legal
representative or representatives. Failure
of counsel to comply with this duty shall
be a ground for disciplinary action.
The heirs of the deceased may be allowed
to be substituted for the deceased, without
requiring the appointment of an executor
or administrator and the court may
appoint a guardian ad litem for the minor
heirs.
The court shall forthwith order said legal
representative or representatives to appear
and be substituted within a period of thirty
(30) days from notice.
If no legal representative is named by the
counsel for the deceased party, or if the
one so named shall fail to appear within
the specified period, the court may order
the opposing party, within a specified
time, to procure the appointment of an
executor or administrator for the estate of
the deceased and the latter shall
immediately appear for and on behalf of
the deceased. The court charges in
procuring such appointment, if defrayed by
the opposing party, may be recovered as
costs. (16, 17a)
First of all, there are cases when a party to a pending action
dies and the claim is not thereby extinguished (this is what they
called an action which survives as we will explain later) and
there are certain actions where if a party dies, the claim is
automatically extinguished. Meaning, the death of a party
causes death of the action. But these are very few. In majority of
cases when the party dies, the case or the cause of action
continues.
Examples of actions which survive the death of a party:
• Actions and obligations arising from delicts survive
(Aguas
v. Llamas 5 SCRA 959)
• Actions based on the tortious conduct of the defendant
survive the death of the latter. (Melgar v. Benviaje 179
SCRA 196)
75
• Actions to recover real and personal property, actions to
enforce a lien thereon, and actions to recover damages
for an injury to person or property and suits based on
the alleged tortious acts of the defendant survive. (Board
of Liquidators v. Kalaw 20 SCRA 987). An action for
quieting of title with damages is an action involving real
property. It survives and the claim is not extinguished by
the death of a
party. (Saligumba v. Calanog GRT+ 143365 Dec. 4, 2008)
• An action of ejectment survives the death of a party. It
continues until judgment because the issue concerning
the illegality of the defendant’s possession is still alive,
and upon its resolution depends the corollary issue of
whether and how much damages may be recovered.
(Tanhueco v. Aguilar 33 SCRA 236; Vda de Salazar v. CA;
Florendo jr. v.Coloma 129 SCERA 304)
• Actions for the recovery of money, arising from a contract
express or implied are not extinguished by the death of
the defendant. (Sec. 20 R 3)
Duty of lawyer of the deceased
It is the duty of the lawyer of the deceased to inform the
court within 30 days after the death of the party thereof. He
must inform the court and give the name and address of his
legal representative/s (e.g. administrator or executor of the
estate)
In legal ethics, the lawyer- client relationship is automatically
terminated by the death of the client because the lawyer-client
relationship is personal. Neither does he become the counsel of
the heirs of the deceased unless his services are engaged by
said heirs (Lawas vs. CA 146 SCRA 173). But procedurally, he
must tell the court and give the name of the legal
representative. The latter may re-hire the lawyer but under a
new contract.
The purpose there is for substitution so that the legal
representative will be ordered substituted. And there is a
new provision under the new rules. That is, failure of the
counsel to comply with his duty shall be a ground for
disciplinary action. That is not found in the prior rule. So, the
lawyer can be subjected to disciplinary action.
Upon receipt of the notice of death, the court shall
determine whether or not the claim is extinguished by such
death. If the claim survives, the court shall order the legal
representative or representatives of the deceased to appear
and be substituted for the deceased within 30 days from
notice (Sec. 16 Rule 3). The substitution of the deceased
would not be ordered by the court in cases where the death of
the party would extinguish the action because substitution is
proper only when the action survives (Aguas vs. Llamas 5 SCRA
959)
So the provision continues, “the heirs of the deceased may be
allowed to be substituted for the deceased without requiring the
appointment of an executor or administrator. And the court may
appoint a guardian ad litem for the minor heirs.
So, other than the legal representative, which refers to the
executor or administrator, the alternative will be to
substitute the heirs, such as the surviving children, wife or
spouse.
Although there was a case decided by the SC way back in 1986
in the case of
LAWAS vs. CA – 146 SCRA 173
HELD: “The priority of substitution would be the executor
or administrator not the heirs. The heirs would only be
allowed to be substituted if there is:
1) An unreasonable delay in the appointment
administrator or executor, or
2) when the heirs resort to extrajudicial partition
But outside of those two reason, the law always gives priority
to the administrator or executor.”
Under the rule, priority is given to the legal representative of
the deceased. That is, the executor or the administrator of his
estate. Many courts do not enforce it strictly. Normally, patay
na, “O! Ito ang heirs o!” “OK! Substitute!” Actually, that is
wrong based on LAWAS case. The priority is given to the
administrator or executor. It is only when there is
unreasonable delay in the appointment, or when the heirs
resort to extrajudicial partition because there is no more
administrator or executor in extrajudicial settlement.
Lawas ruling is no longer applicable
Under the second paragraph of Sec. 16 of Rule 3 states: “ … The
heirs of the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or
administrator…”
The second paragraph of the rule is plain and explicit. The heirs
may be allowed to be substituted for the deceased without
requiring the appointment of an administrator or executor.
However, if within the specified period a legal representative
fails to appear, the court may order the opposing counsel,
within a specified period, to process the appointment of an
administrator or executor who shall immediately appear for the
estate of the deceased. The previous pronouncement of the
Court in Lawas v. CA xxxxx is no longer true. Thus, the heirs do
not need to first secure the appointment of an administrator of
the estate of the deceased because the very moment of death,
they stepped into the shoes of the deceased and acquired the
rights as devisee/legatee. Said heirs may designate one or some
of them as their representative before the trial court. (San Juan
v. Cruz GR No. 167321, July 31, 2006) Purpose and
Importance of substitution of the deceased
The purpose behind the rule on substitution of parties is
the protection of the right of every party to due process. It
is to ensure that the deceased would continue to be
properly represented in the suit through the duly appointed
legal representative of the estate. (Torres v. CA 278 SCRA
793; Vda de Salazar v. CA 250 SCRA 305)
Non-compliance with the rules on substitution of a deceased
party renders the proceedings of the trial court infirm because
the court acquired no jurisdiction over the person of the legal
representative of heirs of the deceased (Brioso v. Rili-Mariano
396 SCRA 549) because no man should be affected by a
proceeding to which he is a stranger. A party to be affected by a
personal judgment must have a day in court and an opportunity
to be heard. (Vda. De Haberer v. CA 104 SCRA 534; Fereira v.
Vda de Gonzales 104 Phil.
143; Torres v. CA 278 SCRA 793)
Note this portion in the case of:
VDA. DE SALAZAR vs. CA– 250 SCRA 303 [November 23,
of 1995]
FACTS: This is an ejectment case. The defendant died while
the case is going on. What is the procedure? There should
be substitution. But there was no substitution in the case
for ten years, until it was decided. The court was not
informed of the death of the defendant. Until finally, there
was a decision.
ISSUE: When there is failure to effectuate the substitution
of heirs before the rendition of judgment, is the judgment
jurisdictionally defective?
HELD: NO, “the judgment is valid where the heirs
themselves appeared before the trial court and participated
in the proceedings. Therein, they presented evidence in
defense of the deceased defendant. It is undeniably evident
that the heirs themselves sought their day in court and
exercised their right to due process.”
In other words, when there was a defect the heirs however
cannot use that because they themselves appeared and
continued the case. So, in effect, there was estoppel.
No requirement for service of summons
Service of summons is not required to effect a substitution.
Nothing in Sec. 16 of this Rule mandates service of summons.
Instead of service of summons the court shall, under the
authority of the same provision, order the legal
representative of the deceased to appear and be substituted
for the said deceased within 30 days from notice.
By virtue of the same rule, it is significant to know that it is
not the amendment of the pleading, but the order of
substitution and its service that effects the substitution of
the deceased by his representative or heir.
Note: If the action does not survive (like the purely personal
actions of support, annulment of marriage, and legal separation),
the court shall simply dismiss the case. It follows then that
substitution will not be required.
EFFECT OF DEATH OF A PARTY ON MONEY
CLAIMS
Now, one of the radical changes again introduced by the new
rules is the effect of the death of the defendant in a money claim
– action to collect a sum of money.
Sec. 20. Action on contractual money claims.
When the action is for recovery of money
arising from contract, express or implied,
and the defendant dies before entry of
final judgment in the court in which the
action was pending at the time of such
76
 death, it shall not be dismissed but shall A: I will distinguish Is that an ACTION WHICH DOES NOT
instead be allowed to continue until entry SURVIVE or an ACTION WHICH SURVIVES?
of final judgment. A favorable judgment
obtained by the plaintiff therein shall be
enforced in the manner especially
ACTION WHICH DOES NOT SURVIVE
provided in these Rules for prosecuting
claims against the estate of a deceased
person. (21a) An action which does not survive is an action which is abated
upon the death of a party. The case cannot go on once a party
dies. And normally, that refers to actions which are purely
personal in character like an action for annulment of marriages,
Requisites:
an action for declaration of the nullity of marriage or, an action
for legal separation, or an action for support. These are the
1) the action must primarily be for recovery of money, cases arising from the Family Code.
debt, or interest therein;
2) the claim, subject of the action, arose from contract,
Example: The husband files a case against the wife for
express of implied; and
annulment of marriage or legal separation. One of them dies.
3) defendant dies before the entry of final judgment of the
When one of the parties dies, the marriage is dissolved. There is
court in which the action was pending.
nothing to annul because the marriage is already dissolved. So,
these are the actions which are purely personal .
Under this section, the death of the defendant will not result in
the dismissal of the action. The deceased shall be substituted
Q: So, what is the effect of the death of the party in actions
by his legal representatives in the manner provided for in Sec.
which does not survived?
16 of this Rule 3 and the action continues until the entry of
final judgment.
A: The case is dismissed!
However, execution shall not issue in favor of the winning party.
The final judgment should be filed as a claim against the estate 1) ACTIONS WHICH SURVIVE –
of the decedent without need of proving the claim. 2a.) CONTRACTUAL MONEY CLAIMS:

The best example here is an action to collect an unpaid loan. 2a1.) If it is the plaintiff who dies, the case
And while the case is pending the defendant died. What will will continue. The heirs or legal
happen to the case? The law says: If the defendant dies before representatives will proceed. So, there is
the entry of the final judgment in the court at the time of death, substitution.
it shall not be dismissed but it shall instead be allowed to
continue until entry of final judgment. 2a2.) If it is the defendant who dies, the
question is when did he die? Before entry of
Under the OLD RULES, the case shall be dismissed. So, the civil final judgment or after entry? This is where
case is not suspended but it will be dismissed and the creditor Section 20 will come in.
can file a case against the estate of the deceased under the
Rules on Special Proceedings. But definitely the civil case dies 2a2a.) If the defendant died before entry
when the defendant dies. of final judgment, you apply Section
20 of Rule 3. Meaning, the case shall
Now, under the NEW RULE, the case will not be dismissed not be dismissed but shall be allowed to
but rather, the case will now continue until entry of final continue until entry of final judgment.
judgment. Meaning, until it becomes final and executory. And the favorable judgment obtained by
the plaintiff therein shall be enforced in
the manner especially provided in these
Q: But of course, if the judgment is favorable to you (the
Rules for prosecuting claims against the
plaintiff), can you move to execute? Can you move to execute
estate of a deceased person, and that is
the decision against the property of the defendant?
Section 5 of Rule 86.

A: NO, because the law provides, “xxx a favorable judgment

2a2b.) If the defendant died after the
obtained by the plaintiff therein shall be enforced in the manner
entry of the final judgment but before
specially provided in these Rules for prosecuting claims against
execution (after the judgment became
the estate of a deceased person.”
final but before there could be levy or
execution) you cannot move to
Q: And what is that procedure? execute. Again, you apply Section 5 of
Rule 86 which is the governing rule –
A: YOU FILE A CLAIM against the estate under Section 5, Rule you file your judgment as a claim against
86 of the Rules of Court, but there will be no execution. the estate of the deceased defendant.
[Section 5, Rule 86] The purpose there is,
[Note: SEE OUTLINE AT THE LAST PART OF THIS RULE.] so that the creditor will share with the
other creditors pro-rata in the
distribution of the estate.
Q: We are talking of death of a party in a pending civil action.
2a2c) If the defendant died after levy or
While there is a case and a party dies, what will happen to the
execution but before the auction sale,
case?
we will now apply Section 7[c] of Rule 39:

77
 Rule 39, Sec. 7. Execution in case of
death of party. In case of the death of
party, execution may issue or be
enforced in the following manner:
xxxxxx
(c) In case of the death of the
judgment obligor, after execution is
actually levied upon any of his
property, the same may be sold for the
satisfaction of the judgment
obligation, and the officer making the
sale shall account to the
corresponding executor or
administrator for any surplus in his
hands. (7a)
Meaning, if death occurs after the levy, auction sale proceeds as
scheduled. And if there is an excess, the excess shall be
delivered to the administrator or executor.
2b.) NON-CONTRACTUAL MONEY CLAIMS:
EXAMPLE: an action for recovery of property, real or
personal like replevin, forcible entry, unlawful
detainer, action publiciana, action reinvidicatoria, or
action for damages, (damages that is not the same for
transaction of money because damages arising from
culpa aquiliana is one not arising from contract.)
If a party dies in an action which survives which is a
noncontractual money claim, obviously, there is
substitution of parties. So, what are these non-
contractual money claims which survive? These are
those mentioned in Section 7 of Rule 86 and Section 1
of Rule 87. That is in the study of Special Proceedings
on settlement of the estate of a deceased person.
Note: What Section 20 says is that: before the case can be
decided and the defendant dies (in actions involving money
claims) the case shall not be dismissed but shall instead be
allowed to continue until entry of final judgment. BUT
CONTINUE AGAINST WHOM? Against the deceased? Now, to my
mind, you correlate this with Section 16 --- there should still be
substitution.
But assuming, there was no substitution and the heirs fought in
the case; there is waiver because the defect is procedural. Just
like what happened in the case of VDA. DE SALAZAR vs CA 250
SCRA 305). Actually, what Section 20 emphasized is that, the
action shall not be dismissed but shall continue – to emphasize
that it is now different compared with the prior RULE. But
obviously, there will always be a substitution
Sec. 17. Death or separation of a party who is
a public officer. When a public officer is a
party in an action in his official capacity
and during its pendency dies, resigns, or
otherwise ceases to hold office, the action
may be continued and maintained by or
against his successor if, within thirty (30)
days after the successor takes office or such
time as may be granted by the court, it is
satisfactorily shown to the court by any
party that there is a substantial need for
continuing or maintaining it and that the
successor adopts or continues or threatens
78
to adopt or continue the action of his
predecessor. Before a substitution is made,
the party or officer to be affected, unless
expressly assenting thereto, shall be given
reasonable notice of the application
therefor and accorded an opportunity to be
heard. (18a)
Requisites:
1) public officer is a party to an action in his official
capacity;
2) during the pendency of the action he either dies,
resigns, or other wise ceases to hold office;
3) it is satisfactorily shown to the court by any party,
within 30 days after the successor takes office, that
there is a substantial need for continuing or
maintaining the action;
4) that the successor adopts or continues or threatens to
adopt or continue the action of his predecessor; and
5) the party or officer affected has been given reasonable
notice of the application therefor and accorded an
opportunity to be heard.
Q: What will happen to the case?
A: The following:
1) If the successor intends to continue with the policy.
EXAMPLE: Mayor Pascua threatened to demolish the
building of Mr. Nuere as a hazard. If Mayor Pascua
dies, Vice-Mayor Angeles becomes the mayor. If Vice-
Mayor Angeles who is now the mayor says that he will
continue with the demolition, he will be substituted
and he is given 30 days to comment.
2) If the successor does not adopt the policy, the case will
be dismissed.
Sec. 18. Incompetency or incapacity. If a
party becomes incompetent or
incapacitated, the court, upon motion
with notice, may allow the action to be
continued by or against the incompetent
or incapacitated person assisted by his
legal guardian or guardian ad litem.
(19a)
EXAMPLE: F files a case against K. While the case is pending, K
becomes insane. The case will continue but K has to be assisted
by his guardian ad litem.
This is related to Rule 3, Section 3 on representative party but
in Section 3, K should be already insane before the case is filed.
Sec. 19. Transfer of interest. In case of any
transfer of interest, the action may be
continued by or against the original party,
unless the court upon motion directs the
person to whom the interest is transferred
 to be substituted in the action or joined
with the original party. (20)
General Rule: The rule does not consider the transferee an
indispensable party. Hence, the action may proceed without the
need to imp lead him.
Exception: When the substitution by or joinder of the
transferee is ordered by the court.
A transferee pendent lite:
1) stands in exactly the same position as its predecessor-
ininterest, th original defendant; and
2) bound by the proceedings had in the case before the
property was transferred to it, even if not formally
included as defendant. (Herrera, vol. 1 p. 405)
The case will be dismissed if the interest of plaintiff is
transferred to defendant unless there are several plaintiffs, in
which case, the remaining plaintiffs can proceed with their own
cause of action.
EXAMPLE: R files a case against L to recover a piece of land.
While the case is pending, L sold the land to E. E now assumes
the risk and takes the property subject to the outcome of the
case.
Q: Can the case continue against L?
A: YES.
1) If L loses and cannot pay, E is subsidiarily
liable; 2) L can be removed and E will be
substituted; or 3) L can stay and E will be
added.
In all 3 cases, E will be bound by the judgment.
Sec. 21. Indigent party. A party may be
authorized to litigate his action, claim or
defense as an indigent if the court, upon
an ex parte application and hearing, is
satisfied that the party is one who has no
money or property sufficient and available
for food, shelter and basic necessities for
himself and his family.
Such authority shall include an exemption
from payment of docket and other lawful
fees, and of transcripts of stenographic
notes which the court may order to be
furnished him. The amount of the docket
and other lawful fees which the indigent
was exempted from paying shall be a lien
on any judgment rendered in the case
favorable to the indigent, unless the court
otherwise provides.
Any adverse party may contest the grant
of such authority at any time before
judgment is rendered by the trial court. If
the court should determine after hearing
that the party declared as an indigent is in
fact a person with sufficient income or
79
property, the proper docket and other
lawful fees shall be assessed and collected
by the clerk of court. If payment is not
made within the time fixed by the court,
execution shall issue for the payment
thereof, without prejudice to such other
sanctions as the court may impose.
(22a)
In criminal cases, the court assigns a counsel de officio. Under
the Constitution on Bill of Rights, no person shall be denied
access to courts by reason of poverty.
In civil cases, a plaintiff need not pay docket fee if he is an
indigent if he files an application (ex-parte application) to allow
him to litigate as an indigent litigant. But if the indigent wins,
he has to pay the fees – file now, pay later) – the amount shall
be a lien on any favorable judgment.
The third paragraph is new. The other party may contest the
claim of the indigent if he is really an indigent or not.
Sec. 22. Notice to the Solicitor General. In any
action involving the validity of any treaty,
law, ordinance, executive order,
presidential decree, rules or regulations,
the court, in its discretion, may require
the appearance of the Solicitor General
who may be heard in person or through a
representative duly designated by him.
(23a)
The rule is that only the Solicitor General can bring and defend
actions on behalf of the Republic of the Philippines and that
actions filed in the name of the Republic of the Philippines or its
agencies and instrumentalities, if not initiated by the Solicitor
General will be summarily dismissed. The authority of the
Solicitor General is embodied in Sec. 35(1) Chapter 12, Title III
and Book IV of the Administrative Code of 1987 (Cooperative
Development Authority vs. Dolefil Agrarian Reform Beneficiaries
Cooperative 382 SCRA 552).
EXAMPLE: M files a case against K for declaration of nullity on
the ground of psychological incapacity. K alleges that Article 38
of the Family Code is unconstitutional. So the court will rule on
the validity of the law in which case, the Solicitor General has to
be involved in the case to defend the validity of the law.
REASON: The Solicitor General is the legal counsel of the
Republic of the Philippines whose duty is to defend all the
official acts of the Government.

Rule 4
VENUE OF ACTIONS
Q: Define venue.
A: VENUE is the place, or the geographical area where an action
is to be filed and tried. In civil cases, it relates only to the place of
the suit and not to the jurisdiction of the court. (Manila Railroad
Company vs. Attoryney General, 20 Phil. 523)
Venue not a matter of substantive law
Venue is procedural and not substantive. In civil cases, venue is
not a matter of jurisdiction. (Heirs of Pedro Lopez vs. de Castro,
324 SCRA 591 [2000]). Venue becomes jurisdictional only in a
criminal case. In the latter case, where the information is filed
in a place where the offense was not committed, the information
may be quashed for lack of jurisdiction over the offense charged.
(Sec. 3, R 117) This is not so in a civil case where improper
venue is not equivalent to lack of jurisdiction. Because it is
merely procedural, the parties can waive the venue of a case.
Means of waiving venue:
1. failure to object via motion to dismiss;
2. affirmative relief sought in the court where the case is
filed even if venue is improper;
80
3. affirmative defense in an answer;
4. voluntary submission to the court where the case is
filed;
5. laches
Dismissal based on improper venue
1) The trial court cannot motu proprio dismiss a case on
the ground of improper venue. The court may motu
proprio dismiss an action in case of lack of jurisdiction
over the subject matter, litis pendencia, res judicata
and prescription, but not for improper venue. (Rudolf
Lietz Holdings, Inc. v. Register of Deeds of Paranaque
City, 344 SCRA 68; Universal Robina Corp. v. Lim GR
154338, Oct.
5, 2007)
2) Unless and until the defendant objects to the venue in
a motion to dismiss, the venue cannot be truly said to
be improperly laid, because the venue although
technically wrong may be acceptable to the parties for
whose convenience the rules on venue have been
devised. The trial court cannot preempt the
defendant’s prerogative to object to the improper laying
of the venue by motu proprio dismissing the case.
(Dacuycoy v. IAC 195 SCRA
641)
When court may motu proprio dismiss based on improper
venue
The court may dismiss on improper venue, at its instance, in an
action covered by the rules on summary procedure. Under these
rules, the court may motu proprio dismiss a case from an
examination of the allegations of the complaint and such
evidence as may be attached thereto on any of the grounds
apparent therefrom. The dismissal may be made outright, which
means that the court may do so without need of waiting for the
filing of a motion to dismiss. (Sec. 4, Rules on Summary
Procedure)
How venue is determined
As said before, in order to know the venue of a particular action,
the initial step is to determine if the action is personal or real. If
it is personal, the venue is transitory hence, the venue is the
residence of the plaintiff or the defendant at the option of the
plaintiff. If the defendant is a non-resident, the venue is the
residence of the plaintiff or where the non-resident defendant
may be found, at the election of the plaintiff.(Sec. 3)
If the action is real, the venue is local hence, the venue is the
place where the real property involved, or any portion thereof, is
situated. (Sec. 1). However, when the defendant is a non-
resident and is not found in the Philippines, and the action
affects the personal status of the plaintiff, or any property of the
defendant located in the Philippines, the venue is the residence
of the plaintiff or where the property or any portion thereof is
situated. (Sec. 3)
VENUE OF REAL ACTIONS
Section 1. Venue of real actions. Actions
affecting title to or possession of real
property, or interest therein, shall be
commenced and tried in the proper court
which has jurisdiction over the area
 wherein the real property involved, or a
portion thereof, is situated.
Forcible entry and detainer actions shall be
commenced and tried in the municipal
trial court of the municipality or city
wherein the real property involved, or a
portion thereof, is situated. (1[a], 2[a]a)
Q: Why does the law say “tried in the proper court?”
A: It is because proper court will now be the MTC or the RTC,
depending on the assessed value of the property.
The venue is the placed where the real property or any portion
thereof is located.
If a property is located at the boundaries of two places: file the
case in either place at the option of the plaintiff.
When the case involves two properties located in two
different places:
1) if the properties are the object of the same transaction,
file it in any of the two places; and
2) if they are the subjects of two distinct transactions,
separate actions whould be filed in each place unless
properly joined.
VENUE OF PERSONAL ACTIONS
Sec. 2. Venue of personal actions. All other
actions may be commenced and tried
where the plaintiff or any of the principal
plaintiffs resides, or where the defendant
or any of the principal defendants resides,
or in the case of a non-resident defendant
where he may be found, at the election of
the plaintiff. (2[b]a)
Venue of personal actions:
1) Where the plaintiff or any of the principa plaintiffs
resides;
2) where the defendant or any of the principal defendants
resides; or
3) in case of a non-resident defendant but found in the
Philippines, in the place where he may be found.
Note: All at the election of the plaintiff.
Situation: suppose, there are four (4) plaintiffs and 4
defendants and the 4 plaintiffs reside in 4 different cities or
municipalities. So there are 8 choices for venue because the law
says, “where the plaintiff or any of the principal plaintiffs or
where the defendant or any of the principal defendants reside…”
NOTE: PRINCIPAL PLAINTIFF, PRINCIPAL DEFENDANT.
Because there is such a thing as nominal defendant and
nominal plaintiff..
EXAMPLE of a nominal party: When a party wants to file a
case to annul an execution sale or to annul a levy, normally it
impleads the sheriff as party. But the sheriff is not the principal
81
party but is only a NOMINAL PARTY. So, the residence of the
sheriff is not considered the sheriff being a nominal party only.
This is the original concept of forum shopping which is
legitimate but had later been abused. That is why there is a SC
case where Justice Panganiban cited the history of forum
shopping entitled
FIRST PHILIPPINE INTERNATIONAL BANK vs. CA (252 SCRA
259), January 24, 1996)
How to distinguish real from personal action
There are instances when it is easy to distinguish whether the
action is real or personal and there are also instances when it is
difficult.
EXAMPLE: An action for annulment of a contract of sale or
rescission of contract of sale of real property. Generally, an
action for annulment or rescission is a personal action. But
suppose, I will file a complaint to annul or rescind a contract or
a deed of sale over a parcel of land which we made one year ago
which land is situated in Mandaue City and the purpose of my
action is to recover the ownership of that land is this a real or
personal action?
It is a real action because the primary object of the suit is to
recover the ownership of real property. It seems to be personal
but in reality it is a real action. So the venue is governed by
Section 2.
But there are also actions which appear to be real but in reality,
are personal actions. Like what happened in the case of
LA TONDEÑA DISTILLERS INC vs. PONFERRADA - 264
SCRA 540
[1996]
FACTS: A entered into a contract where she committed
herself to sell her land to B. A even placed a lis pendens on
the property but later she backed out. So B will file a case
against A for specific performance to compel her to sign the
deed of sale.
ISSUE: Is this real or personal action?
HELD: It is a PERSONAL ACTION because you are not
questioning my ownership. Here, the plaintiff recognizes
that the defendant is still the owner, which is the reason
why he is still filing the case to compel him to sell.
Thus, it should be filed at the residence of the parties. “The
complaint is one for specific performance with damages.
Private respondents do not claim ownership of the lot but in
fact recognized title of defendants by annotating a notice of
lis pendens. In one case, a similar complaint for specific
performance with damages involving real property, was held
to be a personal action, which may be filed in the proper
court where the party resides. Not being an action involving
title to or ownership of real property, venue, in this case,
was not improperly laid before the RTC of Bacolod City.”
(Adamos vs. Tuazon 25 SCRA 30 [1968])
Q: Where several or alternative reliefs are sought in an action,
and the reliefs prayed for are real and personal, how is venue
determined?
A: Where several or alternative reliefs are prayed for in the
complaint, the nature of the action as real or personal is
determined by the primary object of the suit or by the nature of
the principal claim. Thus, where the purpose is to nullify the
title to real property, the venue of the action is in the province
where the property lies, notwithstanding the alternative relief
sought, recovery of damages, which is predicated upon a
declaration of nullity of the title. (Navarro vs. Lucero, 100 Phil.
146)
Where a lessee seeks to establish his right to the hacienda,
which was subsequently sold, for the purpose of gathering the
crops thereon, it is unnecessary to decide whether the crops are
real or personal property, because the principal claim is
recovery of possession of land so that he may gather the fruits
thereof. (LTC vs. Macadaeg, 57 O.G. 3317)
Now, going back to Section 2.
RESIDENCE OF THE PARTIES
Where is the residence of the parties? Because residence in law
could mean DOMICILE OR LEGAL RESIDENCE, it could be
ACTUAL OR PHYSICAL RESIDENCE.
With the exception of only one case, the word ‘residence’ and
‘venue’ has been uniformly interpreted by the SC to mean
ACTUAL or PHYSICAL RESIDENCE not legal domicile. Alright,
there are so many casesalready: CO vs. CA (70 SCRA 296);
FULE vs. CA (14 SCRA 189); HERNANDEZ vs. RURAL BANK OF
THE PHIL (81 SCRA 75); RAYMOND vs. CA (166 SCRA 50);
ESCUERTE vs. CA (193 3CRA 54).
EXCEPT for one case decided way back in 1956 – the case of
CORRE vs. CORRE – 100 Phil 221
FACTS: An American who resides in San Francisco who
came to the Philippines rented an apartment in Manila to
sue his wife who is a Filipina. The wife is from Mindanao.
And then the American husband filed the case in Manila
because he rented an apartment in Manila.
HELD: You are not a resident of Manila. Your residence is
in San Francisco – that is your domicile. So that is to
compel the American to file the case in the residence of the
wife rather than the wife going to Manila.
So the case of CORRE is the only exception where the SC said,
“residence means domicile.” All the rest, physical! In the case of
CORRE, maybe the SC there was just trying to help the Filipina.
If we will interpret the rule on venue as physical, it is the
Filipina who will be inconvenienced.
RESIDENCE OF A CORPORATION
Under Rule 1, a corporation can sue and be sued. But what is
the residence of a corporation? Under the corporation law, the
residence of a corporation is the place where its head or main
office is situated.
82
CLAVECILLA RADIO SYSTEM vs. ANTILLON – 19 SCRA 39
[1967]
FACTS: Clavecilla was sued in Cagayan de Oro City.
Clavecilla questioned the venue because its head office is in
Manila. The plaintiff argued that it can be sued because it
has a branch in Cagayan.
ISSUE: Is a corporation resident of any city or province wherein
it has an office or branch?
HELD: NO. Any person, whether natural or juridical, can
only have one residence. Therefore, a corporation cannot be
allowed to file personal actions in a place other than its
principal place of business unless such a place is also the
residence of a co-plaintiff or defendant.
The ruling in the case of ANTILLON was reiterated in the 1993
case of YOUNG AUTO SUPPLY CO. vs. COURT OF APPEALS
(223 SCRA 670)
Because the law said “where the plaintiff or any of the principal
plaintiffs..” So if the corporation is suing with someone from
Cebu
City, even if its head office is in Manila, the corporation can file
in Cebu City because of the residence of my co-plaintiff or the
residence of the defendant. But outside of that, a corporation
cannot sue outside of its head office because its residence is
there. That is the case of YOUNG AUTO SUPPLY.
“OR IN THE CASE OF A NON-RESIDENT DEFENDANT
WHERE HE
MAY BE FOUND”
Suppose the defendnt is not residing here in the Philippines but
is just on vacation and you want to sue him. What is now the
point of reference?
Did you notice the phrase “or in the case of a non-resident
defendants where he may be found.” Now what does that mean?
It means to say that the defendant is not actually residing in the
Philippines but he is temporarily around because he is found in
the Philippines. Example is a balikbayan who is still on
vacation.
PROBLEM: Suppose a Filipino who is already residing abroad
decided to come back this Christmas for a vacation. When he
landed at the Manila Domestic Airport, you met him as your
friend and the first thing he requested you is if he could borrow
some pesos because his money is in dollars. He borrowed from
you P15,000.00 promising to pay in a week’s time.. One week
later, still he has not paid you and obviously it seems he will not
pay you. So you decided to sue him while he is around to
collect, where is the venue of the action?
A: The law says, generally where the plaintiff resides or where
the defendant resides. The trouble is, the defendant has no
residence here because he is already residing abroad. But he is
temporarily here in the Philippines.
You can sue him where he may be found. If he decides to stay in
Cebu, that is where the proper venue rather his permanent
residence. So where he may be found is the alternative venue.
The phrase “where he may be found” means where he may be
found here in the Philippines for a non-resident defendant but
temporarily staying in the Philippines.
Q: Suppose a defendant is a non-resident and he is not even
here. Like for example, your neighbor borrowed money from you
and the nest thing you heard is that he left the country. He has
already migrated to the states. Of course you know his address
there. Can you sue him in the Philippine court, a defendant who
is no longer residing here and is not found in the Philippines?
A: NO, you cannot. Charge it to experience.
Q: Why can you not sue a person not residing here in the
Philippines and is not found here in the first place?
A: There is no way for Philippine courts to acquire jurisdiction
over his person. Otherwise, he will not be bound by the
decision.
But in our discussion on the element of jurisdiction: subject
matter, person, res and issues, I told you that the res or the
thing in dispute is important because sometimes it takes the
place of jurisdiction over the person of the defendant. So even if
the Philippine court cannot acquire jurisdiction over the person
of the defendant but the subject of the controversy (res) is in the
Philippines, then the non-resident defendant can also be sued
in the Philippines. The court can now acquire jurisdiction over
the res, subject and since the res is here, the judgment can be
enforced. It is not a useless judgement anymore.
EXAMPLE: He is there but he is the owner of a piece of land
here. I want to file a case to recover ownership over the land
here in the Philippines.
Q: Can I sue the non-resident defendant?
A: YES under Section 3. Even if the person is abroad, the res of
the property in dispute is here and if he loses the case the
judgment can be enforced – transfer the property to you. So it is
not a useless judgment. That is what Section 3 is all about.
Sec. 3. Venue of actions against nonresidents.
- If any of the defendants does not reside
and is not found in the Philippines, and
the action affects the personal status of
the plaintiff, or any property of said
defendant located in the Philippines, the
action may be commenced and tried in the
court of the place where the plaintiff
resides, or where the property or any
portion thereof is situated or found, (2[c]a)
Q: What is the difference between the non-resident defendant in
Section 2 and the non-resident defendant in Section 3?
A: In Section 2, the non-resident defendant may be found in the
Philippines. But in Section 3, he does not reside and is not
found in the Philippines. So, physically, he is not around.
Venue of ordinary civil actions against non-residents:
1) Non-resident but found in the Philippines;
a) for personal actions, where the plaintiff resides or
where he may be found at the election of the
plaintiff;
b) for real actions, where the property is located.
83
2) Non-resident not found in the Philippines
An action may be filed only when:
1.) The action affects the personal status of the
plaintiff and venue is the place where the
plaiantiff resides; or
2.) The action affects the property or any portion
thereof of
said defendants is located here in the Philippines, and
venue is the place where the property or any portion
thereof is located.
ACTION THAT AFFECTS THE PERSONAL STATUS OF THE
PLAINTIFF
EXAMPLE: A young child was abandoned by his illegitimate
father. The illegitimate father left the Philippines for good. The
son wants to file a case against the father for compulsory
recognition, at least to improve his status.
Q: Can the child file a case for compulsory acknowledgment
here in the Philippines against the father for compulsory
acknowledgment?
A: YES because the action involves the person status of the
plaintiff. The res is the status of the plaintiff who happens to be
in the Philippines.
THE ACTION AFFECTS THE PROPERTY OR ANY PORTION
THEREOF OF SAID DEFENDANTS LOCATED HERE IN
THE PHILIPPINES
Example: The defendant who is already abroad owns a piece of
land located here in the Philippines and I want to recover the
ownership of the piece of land.
Q: What is the res?
A: The res is the land which is situated here in the Philippines.
Therefore I can sue that defendant even if he is there because
the court can acquire jurisdiction over the res.
In order to validly sue in the Philippine court, a defendant who
is no longer residing here and is no longer found here, the
action must be:
1) action in rem; or 2)
at least quasi-in rem.
In the examples given, if the action is for compulsory
recognition, that is actually an action in rem. In the suit which
involves a property here in the Philippines, at least that is an
action quasi-in rem.
But if the action is purely in personam, then there is no way by
which you can sue him. Example is an action to collect an
unpaid loan.
Q: Where is now the proper venue of the action against the
nonresidents?
A: The law says where the plaintiff resides – action which affects
the personal status of defendants, where the property of the
defendant located here in the Philippines
Sec. 4. When rule not applicable. - This rule shall not
apply - a)In those cases where a specific rule or law
provides otherwise; or
b)Where the parties have validly agreed in
writing before the filing of the action on the
exclusive venue thereof. (3a, 5a)
A.) IN THOSE CASES WHERE A SPECIFIC RULE OR LAW
PROVIDES OTHERWISE;
Q: What cases provide for venue of the action which may be
different from what Rule 4 says?
A: The following:
1.) A civil action arising from LIBEL under Article 360
of the Revised Penal Code.
Libel could give rise to a civil action for
damages. It is considered under the RPC
as one of the independent civil actions.
The criminal action for libel shall be filed
simultaneously or separately in the RTC
of the:
a.) province or city where the libelous article
is printed and first published; or
b.) where any of the offended parties actually
resides at the time of the commission of
the offense.
If one of the offended party is a public officer,
whose office is in the City of Manila at the time of
the commission of the offense, the action shall be
filed (a) in the RTC of Manila, or (b) in the RTC of
the province where he held office at the time of the
commission of the offense.
2.) Section 5 (4), Article VIII, 1987 Constitution – The
SC may
order a change of venue or place of trial to avoid a
miscarriage of justice as what happened in the case of
Mayor Sanchez.
B.) WHERE THE PARTIES HAVE VALIDLY AGREED IN
WRITING
BEFORE THE FILING OF THE ACTION ON THE EXCLUSIVE
VENUE THEREOF.
The parties may agree on a specific venue which could be in a
place where neither of them resides. Take note that the
stipulation must be:
1) in writing;
2) made before the filing of the action and 3)
exclusive as to the venue.
84
While the first two rarely pose a problem, the third has been a
source of controversy in the past.
A stipulation that “any suit arising from this contract shall be
filed only in Quezon City” is exclusive in character and is clear
enough to preclude the filing of the case in any other place. In
this case, the residences of the parties are not to be considered
in determining the venue of the action.
How about a stipulation that the “parties agree to sue and be
sued in the courts of Manila?”
POLYTRADE CORP. vs. BLANCO – 30 SCRA 187
FACTS: C and J are both residing here in Cebu City. J
borrowed money from C, and executed a promissory note in
favor of the latter which says, “I promise to pay C the sum
of P200,000 one year from today. In case of a suit arising
from this promissory note, the parties agree to sue and be
sued in the City of Manila.”
When the note matured, J did not pay so C filed a case to
collect the unpaid loan here in Cebu City but J challenged
the venue on ground that the venue is agreed upon which is
Manila. According to C, the venue is correct because both of
us are residing here in Cebu City and under Rule 4, the
venue is where I reside or you reside, at my option.
ISSUE: Who is correct in this case?
HELD: Plaintiff is correct notwithstanding the stipulation.
Why? When. the parties stipulated on the venue of the civil
action, other than those found in the Rule of Court, the
stipulated venue is considered merely as an ADDITION to
where the parties reside. Unless the stipulation contains
RESTRICTIVE words which shows the intention of the
parties to limit the place stipulated as the exclusive venue.
So in the second exception where there is an agreement in
writing on the exclusive venue, the word exclusive is very
important as taken in the ruling in POLYTRADE vs. BLANCO. So
if the venue is not exclusive, Rule 4 still applies and the
stipulated venue is just an additional one.
Of course, there are stipulations where you can see clearly the
intention of the parties to limit the venue. But sometimes, there
are stipulations in which it is difficult to decipher the real
intention of the parties whether exclusive or not. Examples of
clear stipulations which calls for the application of the
POLYTRADE ruling: in the City of Manila only or the suit shall be
filed in the City of Manila and in no other place.
The Polytrade doctrine was further applied in the case of
Unimasters Conglomeration Inc. v. CA 267 SCRA 759. In this
case, it was ruled that a stipulation stating that “all suits
arising out of this Agreement shall be filed with/in the proper
courts of Quezon City,” is only permissive and does not limit the
venue to the Quezon City courts. As explained the said case:
“In other words, unless the parties made very clear, by
employing categorical and suitably limiting language, that they
wish the venue of the actions between them to be laid only and
exclusively at a definite place, and to disregard the prescriptions
of Rule 4, agreements on venue are not to be regarded as
mandatory or restrictive, but merely permissive, or
complementary of said rule.xxxThere must be, to repeat,
accompanying language clearly and categorically expressing their
purpose and design that actions between them be litigated only
at the place named by them, regardless of the general precepts of
Rule 4; and any doubt or uncertainty as to the parties’ intentions
must be resolved against giving their agreement a restrictive or
mandatory aspect. Any other rule would permit of individual,
subjective judicial interpretations without stable standards,
which could well result in precedents in hopeless inconsistency.”
However, there are cases in which you cannot find the word
exclusive or the word only, and yet the SC said it seems the
intention of the parties to limit the venue as exclusive as what
happened in the 1994 case of
GESMUNDO vs. JRB REALTY CORP – 234 SCRA 153
FACTS: This involves a lease contract which contain a
stipulation on venue. Here is the language of the lease
contract: “venue for all suits, whether for breach hereof or
damages or any cause between the LESSOR and the
LESSEE, and persons claiming under each, being the courts
of appropriate jurisdiction in Pasay City…”
In other words, if there is a case, they agreed to file it in the
court of Pasay City.
ISSUE: Is this intention of the parties to make Pasay City an
exclusive venue?
HELD: Pasay City is the exclusive venue. “It is true that in
Polytrade Corporation v. Blanco, a stipulation that ‘The
parties agree to sue and be sued in the City of Manila’ was
held to merely provide an additional forum in the absence
of any qualifying or restrictive words. But here, by laying in
Pasay City the venue for all suits, the parties made it plain
that in no other place may they bring suit against each
other for breach contract or damages or any other cause
between them and persons claiming under each of them.”
In other words, the intention of the parties is to make Pasay
City the exclusive venue.
The following stipulations were likewise treated as merely
permissive and did not limit the venue:
a. xxxThe agreed venue for such action is Makati, Metro
Manila, Philippines (Mangila v. CA 435 Phil. 870).
b. “In case of litigation hereunder, venue shall be in the
City Court or Court of First Instance of Manila as the
case may be for determination of any and all questions
arising thereunder.” (Phil. Bank of Communications v.
Trazo, GR
165500, Sug. 30, 2006)
c. “It is hereby agreed that in case of foreclosure of this
mortgage under ACT 3135, as amended, and
Presidential Decree No. 385, the auction sale shall be
held at the capital of the province, if the property is
within the territorial jurisdiction of the province
concerned, or shall be held in the city, if the property
is within the territorial jurisdiction of the city
concerned”(Langkaan Realty Development, Inc. v.
UCPB GR 139427, Dec. 8, 2000)
85
d. “All court litigation procedures shall be conducted in
the appropriate courts of Valenzuela City, Metro
Manila” (Auction in Malinta, inc. v. Luyaben GR
173979, Feb. 12,
2007)
Examples of words with restrictive meanings are: xxx “only”,
“solely”, “exclusively in this court”, “in no other court save –“,
“particularly”, “nowhere else but/except --, or words of equal
import xxx” (Pacific Consultants International Asia, Inc. v.
Schonfeld, GR 166920 Feb. 19, 2007)
Cases like Hoechst, Inc. v. Torres, 83 SCRA 297 and Bautista v.
de Borja 18 SCRA 474 and other rulings contrary to the
Polytrade doctrine are deemed superseded by current decisions
on venue.
In Supena v. de la Rosa 334 Phil. 671, it was ruled that Hoechst
had been rendered obsolete by recent jurisprudence applying
the doctrine enunciated in Polytrade (Auction in Malinta Inc. v.
Luyaben)
This conflict was resolved in the case of PHIL. BANKING vs.
TENSUAN (228 SCRA 385) where the SC ruled that the ruling in
BAUTISTA vs. DE BORJA and HOECHST PHILS. vs. TORRES has
been rendered obsolete by the POLYTRADE ruling and
subsequent cases reiterated it. So the ruling in POLYTRADE is
the correct ruling. Forget what the SC said in the
abovementioned two cases.
When stipulation would be contrary to public policy of making
courts accessible to all who may have need of their service
SWEET LINES vs. TEVES – 83 SCRA 361
FACTS: This is a Cagayan de Oro case which involves Sweet
Lines, a shipping company with the head office in Cebu.
The respondent Teves is the former City Fiscal of Davao
City, former Mayor and became judge of CFI of Cagayan de
Oro
City.
There was a group of passenger who rode on the Sweet
Lines bound for Cebu City. During the trip, they were given
a crude treatment by the officers of the vessel. When they
came back in Cagayan de Oro City, they filed a suit for
damages against Sweet Lines. They file the case in the
former CFI, now RTC, of Cagayan de Oro City because the
plaintiffs are residents of Cagayan de Oro City.
Sweet Lines filed a motion to dismiss questioning the venue
of the action because in the ticket issued by Sweet Lines, it
is stipulated that “…in case of a civil action arising from the
contract of carriage, the venue of the action shall be the City
of Cebu ONLY and in no other place.” So there is a restrictive
word. Obviously the lawyers of Sweet Lines knew about
Polytrade because they moved to dismiss the case citing
this case.
Judge Teves denied the motion to dismiss the case despite
the stipulation. According to him, it is unfair. If I will
dismiss the case based on this stipulation, the aggrieved
parties will be discouraged in going to Cebu. It is very
expensive and they will be inconvenienced. But, if the case
will go on in Cagayan de Oro, it will not inconvenienced HELD: The ruling in Sweet Lines vs. Teves does not apply.
Sweet Lines because they have their branch office, their You are bound by the stipulation. Why? You are a lawyer so
manager and their own lawyer. you klnow the implication of the stipulation signed.

ISSUE: Whether or not Cagayan de Oro is the proper venue. Q: Distinguish JURISDICTION from VENUE.

HELD: YES. Judge Teves was correct in not dismissing the A: The following are the distinctions:
case.
1) JURISDICTION refers to the authority of the court to
First of all, the stipulation is placed in the ticket. These hear the case, whereas
people never even bothered to read this. Nakalagay na iyan
diyan eh. So either you take it or you leave it. Therefore, the VENUE refers only to the place where the action is
passengers did not have a hand in preparing that to be heard or tried;
stipulation. So the contract is a contract of adhesion.
2) JURISDICTION over the subject matter cannot he
Second, again for the sake of equity, to be fair that these waived; whereas
poor people will be compelled to go to Cebu to file a case
there. They will be discouraged. It is very expensive to go
VENUE is waivable and can be subject of agreement;
back and forth to Cebu. Whereas, Sweet Lines has the
resources, the means, the lawyers here in Cagayan to
litigate. Therefore, it would be inequitable to compel them 3) JURISDICTION is governed by substantive law –
or to apply the stipulation there. Judiciary Law, BP 129; whereas

VENUE is governed by procedural law – Rule 4 of the

The ruling in SWEET LINES is an exception to POLYTRADE Rules of Court;
despite the exclusive stipulation. The SC said that the refusal of
the court to apply it is correct. There is no grave abuse of 4) JURISDICTION establishes a relation between the
discretion on the part of Judge Teves. court and the subject matter; whereas

ARQUERO vs. FLOJO – 168 SCRA 54 VENUE creates a relation between the plaintiff and
defendant, or petitioner and respondent; and

FACTS: Arquero here is lawyer and the municipal mayor of
the municipality of Sta. Teresita, Cagayan Valley. He sent a
telegram through the RCPI branch in Cagayan addressed to
a Congressman in stating: I will go there to Manila, I will
see you in your office on this particular date.
5) JURISDICTION or lack of it over the subject matter
is a ground for a motu proprio dismissal; whereas
VENUE is not except in cases subject to summary
procedure.

When he went to the office of the congressman after a few

days, who was mad at him telling him “So you are here to BAR QUESTION: State in what instance the jurisdiction and
ask for a favor for your own but your telegram was charged venue coincide.
collect! Arquero was stunned and embarrassed because he
paid for the telegram.
Upon his return to Cagayan, he filed an action for damages
A: In CRIMINAL CASES because in criminal cases, venue is
against RCPI. But in the RCPI telegraph form, there is a
territorial jurisdiction. But in civil cases, jurisdiction and venue
stipulation that “venue of any action shall be the court of
are two different things. They do not coincide.
Quezon City alone and in no other courts.” So the venue is
restrictive and RCPI filed a motion to dismiss citing as
ground improper venue.

The trial court granted the motion. Arquero went to the SC

citing the case of SWEET LINES where despite the fact of a
restrictive stipulation, SC refused to apply the POLYTRADE
ruling.

86
 Rule 5

UNIFORM PROCEDURE IN TRIAL COURTS

SECTION 1. Uniform Procedure – The procedure in Municipal Trial Courts shall be

the same as in the Regional Trial Courts,
except (a) where a particular provision

expressly or impliedly applies only to either of said courts, or (b) in civil cases governed by
the Rule on Summary Procedure. (n)

The Rules on Procedure starting with Rule 6, the title of the subject matter is procedure in Regional Trial Courts. However,
by express
provisions in Section 1, the procedure in the Regional Trial Court

and the procedure in the Municipal Trial Court is the same.

The Rules on Civil Procedure which applies to RTC are also applicable to the MTC except when a particular provision
expressly applies only to either of said courts.

There are provisions where it is very clear and intended only to apply to RTC or MTC. A good example of this is
paragraph (a) is Rule 40 which governs appeals from MTC to RTC. It is only applicable to

MTC. It does not apply to appeals from RTC to Court of Appeals.

The second example would be in civil cases governed by Rules on Summary Procedure. That would be the last law
that we will take up. Rules on Summary Procedure applied only to MTC. They do not apply to RTC.

Sec. 2 Meaning of Terms. – The term “Municipal Trial Courts” as used in these

Rules shall include Metropolitan Trial Courts,

Municipal Trial Courts in Cities, Municipal Trial Court, and Municipal Circuit Trial Courts.
(1a)

In our structure, we already illustrated the hierarchy of courts. Metropolitan Trial Courts are only in Manila. Municipal Trial
Courts
are in cities and municipalities. When the Rule says ‘Municipal Trial

Court’, it already includes Metropolitan Trial Courts, MTCC, MCTC.

So that we will not be repetitious.

PROCEDURE IN THE REGIONAL TRIAL parties submitted to the court for

COURTS Rule 6 appropriate judgment. (1a)

KINDS OF PLEADINGS Q: Define pleadings

SECTION 1. Pleadings Defined. Pleadings
are the written statements of the A: PLEADINGS are the written statements of the respective
respective claims and defenses of the claims and defenses of the parties submitted to the court for
appropriate judgment. (Section 1) Under the Rules, “pleadings”
cannot be oral because they are clearly described as “written”
statements.
This is the document where a party will state his claim against
the defendant; or where the defendant will state also his
defense. Pleadings merely tell a story. You tell your story there,
the other party will tell his story.
Necessity and purpose of pleadings
1) Pleadings are necessary to invoke the jurisdiction of
the court (71 C.J.S. Pleadings). It is necessary, in order
to confer jurisdiction on a court, that the subject
matter be presented for its consideration in a mode
sanctioned by law and this is done by the filing of the
complaint or other pleading. Unless a complaint or
other pleading is filed, the judgment of a court of
record is void and subject to collateral attack even
though it may be a court which has jurisdiction over
the subject matter referred to in the judgment.
2) Pleadings are intended to secure a method by which
the issues may be properly laid before the court.
(Santiago v.
de los Santos 61 SCRA 146).
3) Pleadings are designed to present, define and narrow
the issues, to limit the proof to be submitted in the
trial, to advise the court and the adverse party of the
issues and what are relied upon as the causes of
action or
defense. (71 CJS)
The counterpart of pleadings in criminal procedure is
information, or the criminal complaint where a prosecutor will
tell what crime you are being accused – what you did, time, the
victim, etc.
system is based on codified rules or written set of procedure as
distinguished from common laws procedure. (Marquez and
Gutierrez Lora v.
Varela, 92 Phil. 373)
Sec. 2 – Pleadings allowed – The claims of a
party are asserted in a complaint,
counterclaim, cross-claim, third (fourth,
etc.)
– party complaint, or
complaint-inintervention.
The defenses of a party are alleged in the
answer to the pleading asserting a claim
against him.
An answer may be responded to by a reply.
(n)
Section 2 tells us what pleadings are allowed by the Rules of
Court. In a civil case, there are actually two (2) contending
parties:
1) the person suing or filing a claim; and
2) the person being sued or defending.
Q: If you are the claimant or the plaintiff, in what pleading do
you assert your claim?
A: Complaint, counterclaim, cross-claim, third-party complaint
or fourth-party complaint, etc.
On the other hand, if you are the party sued, you also have to
file your pleading or your defense. It is known as the ANSWER.
The defenses of a party are alleged in the answer to the pleading
asserting a claim against him. If I file a complaint against you,
in response, you will file an answer.

In the last paragraph, an answer may be responded by a REPLY.

Construction of pleadings I file a complaint. You file an answer invoking your defenses. If I
want to respond to your defenses, I will file a REPLY.
In this jurisdiction, all pleadings shall be liberally construed so
as to do substantial justice (Concrete Aggregate Corp. v. CA 266 COMPLAINT ANSWER REPLY
SCRA 88). Pleadings should receive a fair and reasonable
construction in accordance with the natural intendment of the
words and language used and the subject matter involved. The That is the pattern.
intendment of the pleader is the controlling factor in construing Q: Summarizing all of them, what are the known pleadings
a pleading and should be read in accordance with its substance, recognized by the law on Civil Procedure?
not its form.
A: There are seven (7) types of pleadings:
While it is the rule that pleadings should be liberally construed,
it has also been ruled that a party is strictly bound by the 1) Complaint;
allegations, statements or admissions made in his pleading and 2) Answer;
cannot be permitted to take a contradictory position. (Santiago 3) Counterclaim;
v. de los Santos 61 SCRA 146) 4) Cross-claim;
5) Reply
Construction of ambiguous allegations in pleadings 6) Third (Fourth, Fifth, etc.) – Party Complaint; 7)
Complaint-in-Intervention.
In case there are ambiguities in the pleadings, the same must
be construed most strongly against the pleader and that no Pleadings allowed under the Rules on Summary Procedure
presumptions in his favor are to be indulged in. This rule
proceeds from the theory that it is the pleader who selects the
Note however, that when a case falls under the Rules on
language used and if his pleading is open to different
Summary Procedure, the only pleadings allowed to be filed are:
constructions, such ambiguities must be at the pleader’s peril.
(61 Am Jur, Pleading)
1) Complaint;
2) Compulsory Counterclaim;
System of pleading in the Philippines
3) Cross-claim pleaded in the Answer; and
4) Answers thereto (Sec. 3 [A]II, Rules on Summary
The system is the Code Pleading following the system observed
Procedure)
in some states of the US like California and New York. This

Permissive Counterclaims, third-party complaints, reply and
pleadings-in-intervention are prohibited. (Sec. 9, IV)
Pleading and motion
1.) the purpose of a pleading is to submit a claim or
defense for appropriate judgment while the
purpose of a motion is to apply for an order not
included in the judgment;
2.) a pleading may be initiatory like a complaint while
a motion can never be such as it is filed in a case
that is already pending in court;
3.) A pleading is always filed before judgment while a
motion may be filed after judgment;
4.) There are only 9 kinds of pleadings while any
application for a relief other a judgment can be
made in a motion' however, there are only three
motions which actually seek judgment namely:
a) a motion for judgment on the pleadings (R
34);
b) a motion for summary judgment (R 35);
c) Demurrer to Evidence
5.) a pleading must be written while a motion may be
oral
when made in open court or in the course of a hearing
or trial.
A.) COMPLAINT
Sec. 3. Complaint – The complaint is the
pleading alleging the plaintiff’s cause or
causes of action. The names and
residences of the plaintiff and defendant
must be stated in the complaint.
Q: Define complaint
A: COMPLAINT is the pleading where the plaintiff will allege his
cause or causes of action. A complaint is also called the
INITIATORY PLEADING because it is actually the first pleading
filed in court. It is the pleading that initiates the civil action.
Rule 8 requires that it should contain a concise statement of the
ultimate facts constituting the plaintiff's cause of action not
evidentiary facts or legal conclusions.
Ultimate facts refer to the essential facts constituting the
plaintiff's cause of action.
The fact is essential if it cannot be stricken out without leaving
the statement of the cause of action insufficient.
Test of sufficiency of the facts alleged in the complaint:
Determine whether upon the averment of facts, a valid judgment
may be properly rendered.
What are not ultimate facts:
1) evidentiary or immaterial facts;
2) legal conclusions, conclusions or inferences of facts
from facts not stated, or incorrect inferences or
conclusions from facts stated;
3) the details of probative matter or particulars of
evidence, statements of law, inferences and
arguments;
4) an allegation that a contract is valid or void is a mere
conclusion of law.
For EXAMPLE: Mr. P wants to sue Mr. R to collect an unpaid
loan. Mr. R borrowed money from Mr. P and refused to pay.
Normally, it starts with an introduction: “Plaintiff, through
counsel, respectfully alleges that…” Then it is followed by
paragraphs which are numbered. For instance:
Illustration:
1) Plaintiff Mr. P, of legal age, is a resident of 79 P. del
Rosario St., Cebu City; whereas defendant Mr. R also
of legal age, is a resident of 29 Pelaez St. Cebu City
where summons and other processes of this
court may be served;
2) On Nov. 7, 2008, defendant secured a loan from
plaintiff in the sum of P30,000.00 payable within
one (1) year form said date with legal interest;
3) The account is already due and despite repeated
demands, defendant failed and refused to pay;
PRAYER
WHEREFORE, it is respectfully prayed that judgment be
rendered against the defendant ordering him to pay the loan
of P30,000.00 and interest in favor of the plaintiff.
Plaintiff further prays for such other reliefs as may be just and
equitable under the premises.
Your allegations must contain the four (4) elements of a Cause
of Action – the Right, the Obligation, the Delict or Wrong or
Violation of Your Right, and the Damage.
B.) ANSWER
Sec. 4 – Answer – An answer is a pleading
in which a defending party sets forth his
defenses. (4a)
Q: What is the pleading where you respond?
A: It is called the ANSWER. That is where you will state your
defenses. That is why an ANSWER is called a Responsive
Pleading.
Q: Why is it called “Responsive Pleading”?
A: Because it is the pleading which is filed in response to the
complaint or a pleading containing a claim. It is where you
respond to the cause of action. That is where you state your
defenses.
So you can file an answer to the complaint; answer to the
counterclaim, answer to the cross-claim, etc.
It is something which is not found in Criminal Procedure.
Q: If you are charged with a crime, how do you answer?
A: By pleading guilty or not guilty. That is the answer. When
you plead guilty, and the offense is not punishable by reclusion
perpetua to death it is the end.
There is no writing of defenses, no written answer in criminal
cases. It (pleadings) only applies to civil cases where you allege
your defenses.
Q: What are the defenses under the Rules?
A: That is Section 5.
Sec. 5 – Defenses – Defenses may either be
negative or affirmative.
A NEGATIVE DEFENSE – is the specific
denial of the material fact or facts alleged
in the pleading of the claimant essential
to his cause or causes of action.
An AFFIRMATIVE DEFENSE – is an
allegation of a new matter which, while
hypothetically admitting the material
allegations in the pleading of the claimant,
would nevertheless prevent or bar
recovery by him.
Defenses may either be negative or affirmative.
b.) Answer; NEGATIVE DEFENSES;
Q: Define a NEGATIVE defense.
A: Paragraph [a]: Briefly, it is a defense of specific denial where
you deny the statement in the complaint and you state the facts
and the reason/s on which your denial is based. In a negative
defense, the defendant specifically denies a material fact or facts
alleged in the pleading of the claimant essential to his cause of
action.
EXAMPLE: The complaint says in paragraph 2, “On November
6, 2008, defendant secured a loan from plaintiff in the amount
of P30,000.00 payable one (1) year from November 6,2008.
The defendant will say in his answer:
“Defendant specifically denies the allegation in
Paragraph 2 of the complaint. The truth of the
matter being that he never secured any loan from
plaintiff because he does not even know the
plaintiff and he did not see his face before.”
That is a negative defense. You said I borrowed money from you.
“No, I don’t even know you. I have not seen you before.” He
denies the existence of the loan. That is known as the negative
defense. It is a denial of a material fact which constitutes the
plaintiff’s cause of action. That’s why it is briefly called a
“Defense of Specific Denial”.
Insufficient denial or denial amounting to admissions:
1. General denial; and
2. denial in the form of negative pregnant
Negative pregnant is a denial in such form as to imply or
express an admission of the substantial fact which apparently is
controverted. It is form of denial which really admits the
important facts contained in the allegations to which it relates.
While it is a denial in form, its substance actually has the effect
of an admission because of a too literal denial of the allegations
sought to be denied. This arises when the pleader merely
repeats the allegations in a negative form.
In the example above, when the answer states:
"The defendant did not secure a loan from the plaintiff on Nov.
6, 2008 in the amount of P30,000.00 payable within one year."
b.) Answer; AFFIRMATIVE DEFENSES
Q: Define an AFFIRMATIVE defense.
A: In paragraph (b), it is briefly called a defense of confession
and avoidance because, while the defendant may admit the
material allegation in the complaint, however, he will plead a
new matter which will prevent a recovery by the plaintiff. I
admit what you are saying in the complaint but still you are not
entitled to recover from me.
EXAMPLE: Defendant may say: Defendant admits the allegation
in par. 2 of the Complaint, but alleges that the action has
prescribed.
He confesses to having borrowed money but avoids liability by
asserting prescription.
Examples of affirmative defenses are: fraud, statute of
limitations, release, payment, illegality, statute of frauds,
estoppel, former recovery, discharge in bankruptcy, and any
other matter by way of confession and avoidance.
Suppose, you sue me for damages arising from
breach of contract. I admit I entered into a
contract but I have no obligation to comply
because the contract is null and void. Or, the
contract is illegal. Or, the stipulation is contrary
to public policy, therefore, I am not bound. I
admit what you say but I am not liable because of
the illegality of the subject matter of the
contract.
Or, you sue me because according to you, I entered into a
contract and I refused to comply. So, you file a case against me
for specific performance or for damages. Then I say: “It’s true
that I entered into a contract with you. It’s true I did not
comply. But there is nothing you can do because the contract
is oral and the contract is covered by the statute of frauds. In
order to be enforceable, we should have reduced it into writing.
Since we never reduced it into writing, I am not bound to
comply.”
c.) COUNTERCLAIMS
Sec. 6. Counterclaim. - A counterclaim is
any claim which a defending party may
have against an opposing party. (6a)
EXAMPLE: You file a case against me for damage to your car.
According to you in your complaint, while you were driving your
car along the highway carefully, I came along driving recklessly
and bumped your car causing damages amounting to
P50,000.00 for repair. Your allegation is based on negligence on
my part.
My answer is denial: “That is not true! I deny that! I was the
one driving carefully and you were driving carelessly and
negligently. Therefore, if you are the proximate cause of the
accident, I’m not liable for the damage of your car.” That’s my
answer – I’m not liable because you are negligent. Because you
were the one negligent, my car was also damaged. I am not
liable for the damage on your car. As a matter of fact, you are
the one that should be held liable to pay for the damage of my
car. I am now claiming for the damage of P50,000.00. That is
called COUNTERCLAIM.
Nature of a counterclaim
A counterclaim is in the nature of a cross-complaint. Although it
may be alleged in the answer, it is not part of the answer. Upon
its filing, the same proceedings are had as in the original
complaint. For this this reason it is to be answered within ten
(10) days from service.
According to a lawyer who is fluent in Cebuano, he called it
balos. He was explaining to his client that they have
counterclaim.
Therefore, there is one civil case but there are two (2) causes
involved – the main cause of action in the complaint and that in
the counterclaim. There are two (2) issues to be resolved by the
court.
Q: If your complaint against me is to recover a sum of money,
should my counterclaim also involve recovery of sum of money?
A: NO. There is no such rule that these two (2) cases should be
similar in nature. (De Borja vs. De Borja, 101 Phil. 911) It is
possible for you to file case for recovery of a piece of land and
my counterclaim is recovery of damages arising from a vehicular
accident.
Q: Suppose your claim against me is One (1) Million, is it
possible that my counterclaim against you is Two (2) Million?
A: YES. There is no rule which limits my counterclaim to the
same amount you are claiming. A counterclaim need not
diminish or defeat the recovery sought by the opposing party,
but may claim relief exceeding in amount or different in kind
from that sought by the opposing party. (De Borja vs. De Borja,
101 Phil. 911)
Q: You file a case against me for recovery of unpaid loan. My
counterclaim is, rescission of partnership contract. Is the
counterclaim proper?
A: Yes although there is no connection between what you are
asking and what my answer is. But what is important is that
we are the same parties. If you will not allow me to file my
counterclaim against you, that will be another case in the
future. So to avoid multiplying suits, clogging the dockets of the
court and making the proceedings more expensive, violating the
purpose of the rules, the parties are allowed to include all their
claims against each other in one case.
Same capacity rule
DE BORJA vs. DE BORJA - 101 Phil 911
FACTS: A died, of course, what survives after that is the
estate. X was appointed as administrator or legal
representative. W owes a sum of money to the estate of A
and X filed a case against W to collect the unpaid loan. X is
called the REPRESENTATIVE PARTY under Rule 3, Section
3. W filed an answer and stated that W has a claim against
X. W filed a counterclaim against X in the case.
HELD: The counterclaim is improper. When X sued W, X is
not suing in his own personal capacity. He is acting as
administrator of the estate of A. The real plaintiff is the
estate of A. X is just the legal representative. Therefore, you
cannot file a counterclaim against X in the latter’s personal
capacity when X is suing W in a representative capacity.
The SC said that the plaintiff should be sued in a counterclaim
in the SAME CAPACITY that he is suing the defendant. That’s a
principle to remember.
PERMISSIVE & COMPULSORY
COUNTERCLAIMS
Sec. 7 – Compulsory counterclaim – A
compulsory counterclaim is one which,
being cognizable by the regular courts of
justice, arises out of or is connected with
the transaction or occurrence constituting
the subject matter of the opposing party’s
claim and does not require for its
adjudication the presence of third parties
of whom the court cannot acquire
jurisdiction. Such a counterclaim must be
within the jurisdiction of the court both as
to the amount and the nature thereof,
except that in the original action before
the Regional Trial Court, the counterclaim
may be considered compulsory.
Under the Rules, there are two types of counterclaim:
1) COMPULSORY COUNTERCLAIM and,
2) PERMISSIVE COUNTERCLAIM.
Q: How do you distinguish one from the other? When is a
counterclaim compulsory and when is it permissive?
A: The ELEMENTS of a COMPULSORY COUNTERCLAIM are
found in Section 7. If we will outline Section 7, we will see that a
counterclaim is compulsory if the following requisites are
present:
1) It is cognizable by the regular courts of justice;
2) It arises out of or it is connected with a transaction or
occurrence constituting a subject matter of the
opposing
party’s claim;
3) It does not require for its adjudication the presence of
third parties of whom the court cannot acquire
jurisdiction;
4) It must be within the jurisdiction of the court, both as
to the amount and the nature thereof, except that in
an original action before the RTC, the counterclaim
may be
considered compulsory regardless of the amount; and
5) The defending party has a counterclaim at the time he
files his answer.
The fifth requisite is not found in Section 7 but in Rule 11,
Section 8:
Rule 11, Sec. 8. Existing counterclaim or
crossclaim. - A compulsory counterclaim or
a crossclaim that a defending party has at
the time he files his answer shall be
contained therein.
(8a, R6)
Another way of saying it is, the counterclaim has already
matured at the time he files his answer. That is the fifth
requisite.
Q: What happens if one of these requisites is missing?
A: If one of the five requisites is missing, the counterclaim is
permissive in nature.
Discussion of the elements
First Element: A COUNTERCLAIM TO BE COMPULSORY
MUST BE COGNIZABLE BY THE REGULAR
COURTS.
In other words, if you file a complaint against me and I have a
counterclaim against you in the Labor Code, then it cannot be
classified as a compulsory claim because how can I invoke
against you a claim which is cognizable by the NLRC before the
RTC?
Second Element: IT ARISES OUT OF OR IT IS CONNECTED
WITH A
TRANSACTION OR OCCURRENCE CONSTITUTING A
SUBJECT MATTER OF THE OPPOSING PARTY’S CLAIM
The second requisite is the most important. A counterclaim, to
be compulsory, must arise out of or connected with the
transaction or occurrence constituting a subject matter of the
opposing party concerned. It must arise out of or is connected
with a transaction or occurrence constituting a subject matter
of the opposing party’s claim. It must be logically related to the
subject matter of the main action.
So the rule is, if the counterclaim did not arise out of or is not
connected with the transaction or occurrence constituting the
subject matter of the opposing party’s concern, the
counterclaim must be permissive in nature.
PROBLEM: Emily filed a case against Regina for damages
arising from a vehicle collision. According to Emily, the case of
the accident is the negligence of the defendant in driving her
car. Her car bumped the car of Emily and was damaged. So,
Emily is holding Regina liable for the damage on her car. Regina
denied that she was negligent. According to Regina, “No, I am
not negligent. As a matter of fact, you (Emily) were the one
negligent, and because of that negligence, my car was also
damaged. So you should be the one to pay damages.”
Q: Is the counterclaim of Regina arising out of or is connected
with the transaction or occurrence constituting the subject
matter of the opposing party?
A: YES because we are talking of the same bumping. You
bumped my car, you say I bumped your car. So we are talking
of the same event or transaction.
PROBLEM: T files a case against me for recovery of a piece of
land. According to her, she is the owner of the land which I’m
occupying. Now, I file my answer, and then I said, “T, I spent a
lot of money for necessary expenses to preserve the land. You
are also liable to reimburse me for the expenses for the
necessary improvements I introduced on the land.” Under the
law on Property, a defendant or possessor is entitled to
reimbursement for necessary improvements and expenses. So
she is trying to recover the piece of land, I am now asking her to
reimburse me for all necessary expenses that I spent on the
land.
Q: Is my counterclaim arising out of or connected with the
subject matter of your claim or not?
A: YES. We are talking of the same subject matter. Thus, the
counterclaim is compulsory.
PROBLEM: T files a case against me for recovery of a piece of
land. My counterclaim against her is damages arising from a
vehicular collision.
Q: Is my counterclaim arising out of a subject matter of your
action?
A: NO. It is completely different. Thus, that is a permissive
counterclaim.
MELITON vs. CA – 216 SCRA 485
HELD: “It has been postulated that while a number of
criteria have been advanced for the determination of
whether the counterclaim is compulsory or permissive, the
one compelling test of compulsoriness is the logical
relationship between the claim alleged in the complaint and
that in the counterclaim, that is, where conducting
separate trials of the respective claims of the parties would
entail a substantial duplication of effort and time, as where
they involve many of the same factual and/or legal issues.”
Logical Relationship Test
The logical relationship test between the claim and the
counterclaim has been called: The one compelling test of
“compulsoriness.” Under this test, any claim a party has against
an opposing party that is logically related to the claim being
asserted by the opposing party, and that it is not within the
exception to the rule is a compulsory counterclaim. Its
outstanding quality is flexibility. (Tan v. Kaakbay Finance
Corporation 404 SCRA 518)
Q: What is the importance of determining whether the claim is
compulsory or permissive?
A: A compulsory counterclaim must be invoked in the same
action. It cannot be the subject matter of a separate action.
Unlike in permissive counterclaim where you have the choice of
invoking it in the same case, or in a separate action,
compulsory counterclaim must be invoked in the same action
otherwise it will be barred. That is found in Rule 9, Section 2:
Rule 9, Sec. 2. Compulsory counterclaim, or
cross-claim, not set up barred. - A
compulsory counter-claim or a cross-
claim, not set up shall be barred. (4a)
Let us try to apply that principle to the case cited.
PROBLEM: V files a case against me for damages arising from
vehicular collision. Her car is damaged, my car is damaged. In
my answer, I denied negligence but I did not claim from her the
damage to my vehicle. After the trial, court found the plaintiff at
fault. So, the complaint of V. This time I will file a case against
her to recover damages for the damage to my car since I was
able to prove that she was negligent and not me.
Q: What will happen to my case now?
A: My case will be dismissed because I did not raise that cause
of action as a counterclaim as it is compulsory.
PROBLEM: A files a case against me for recovery of a piece of
land. After trial, the decision is against me. The court said that I
should return the land to her. I will file a case against her. She
moved to dismiss – barred, because I should have raised that as
a counterclaim. I cannot file another case involving that cause
of action. That is the effect of failure to raise the compulsory
counterclaim in the case filed against you.
PROBLEM: Now, suppose the counterclaim is PERMISSIVE. My
cause of action against her is damages arising against a
vehicular collision.
Q: Is the counterclaim allowed?
A: Yes, allowed.
Q: My decision is not to file a counterclaim but to file another
case against her. Is that allowed?
A: Yes, that is allowed. Meaning, I may or may not raise it as a
counterclaim because it is permissive. I am permitted to raise it
as a counterclaim but I am not obliged. I may decide to file
another action against you. That is the importance between a
compulsory counterclaim and a permissive counterclaim.
Third Requisite: IT DOES NOT REQUIRE FOR ITS
ADJUDICATION PRESENCE OF THIRD PARTIES OF WHOM
THE COURT CANNOT ACQUIRE JURISDICTION.
Meaning, if my counterclaim against you will involve the
presence of an indispensable party who is, let’s say, abroad, and
therefore, the court cannot acquire jurisdiction over him, if I
don’t allege it as counterclaim in my answer, I will not be barred
from filing a separate action.
Fourth Element: THAT THE COUNTERCLAIM MUST BE
WITHIN THE
JURISDICTION OF THE COURT BOTH AS TO THE AMOUNT
AND NATURE THEREOF
Rules:
1) A counterclaim before the MTC must be within the
jurisdiction of the said court, both as to the amount
and nature thereof.
2) In an original action before the RTC, the counterclaim
may be considered compulsory regardless of the
amount.
3) However, the nature of the action is always material
such that unlawful detainer cannot be set up in the
RTC.
4) If a counterclaim is filed in the MTC in excess of its
jurisdictional amount, the excess is considered waived
(Agustin v. Bacalan GR No. 46000, March 18, 1985)
In Calo v. Ajax In'tl GR No. 22485, March 16, 1968, the remedy
where a counterclaim is beyond the jurisdiction of the MTC is to
set off the claims and file a separate action to collect the
balance.
Q: I will file a case against you for forcible entry. I want to
recover a piece of land. Where is the jurisdiction of that case?
A: MTC.
Review: In the Law on Property, even if you are a possessor in
bad faith, you are entitled to reimbursement for necessary
expenses. The theory there is, even if he is a possessor in bad
faith, the expenses redounded to the benefit of the land owner.
Anyway, you will spend them just the same as the land owner
will have to spend for them. So it will not be fair if he is not
reimbursed. That’s our premise.
PROBLEM: Now, the defendant would like to claim for
reimbursement for the necessary expenses that he spent in my
lot. The case I filed against you is forcible entry in the MTC.
Your necessary expenses amount to P350,000.
Q: Should you raise it as a compulsory counterclaim in the
forcible entry case?
A: NO.
Q: Does it arise out of or connected with the transaction which
is the subject matter of the main action? Why not compulsory?
A: Because the MTC has no jurisdiction over the P350,000
amount for the necessary expenses. This time, that is the
missing element.
Q: How will the defendant claim reimbursement?
A: He has to file with the RTC a case for reimbursement. He
cannot use that as a counterclaim for the forcible entry case
because the MTC has no jurisdiction on a counterclaim where
the amount is over P300,000.00.
I will reverse the problem:
PROBLEM: The plaintiff filed against the defendant an action
for accion publiciana – recovery for a piece of land where the
value of the property is P1 million. So the case should be filed in
the RTC. Now, the defendant is claiming for the reimbursement
of the improvements thereon (necessary expenses) amounting to
P50,000.
Q: Should the defendant raise that as a counterclaim in the
accion publiciana case?
A: YES.
In the first example, the counterclaim is above the jurisdiction
of the MTC. This time, the amount for the counterclaim is below
the jurisdiction of the RTC. So the RTC can claim jurisdiction.
Q: How can the RTC try a counterclaim when the claim is only
P50,000?
A: It is in accordance with the exception under Section 7:
“except that in an original action before the RTC, the counterclaim
may be considered compulsory regardless of the amount.” This
means that the main action is accion publiciana—RTC. The
counterclaim is reimbursement for necessary expenses with
arose out of the same land. Normally, the RTC cannot try that
but the answer to this question is YES.
The RTC can award a claim for damages even though the claim
is below its jurisdiction. The principle is: Since the counterclaim
is compulsory, jurisdiction over the main action automatically
carries with it jurisdiction over the compulsory counterclaim.
The compulsory counterclaim is merely incidental to the main
action. Jurisdiction of the RTC over the main action necessarily
carries with it jurisdiction over the compulsory counterclaim
which is merely ancillary.
If the main action is with the MTC, it cannot try the
counterclaim with the RTC. It is beyond its jurisdiction. It is not
covered by the exception. But if it is the main action which is
within the jurisdiction of the RTC, it can try a counterclaim
which is below its jurisdiction provided it arose out or is
connected with the transaction.
That exception is not written in the prior rules but it is a
recognized exception laid down by the SC which is now written
down in the law. In the case of
MACEDA vs. CA – 176 SCRA 440
HELD: “The jurisdiction of the MTC in a civil action for sum
of money is limited to a demand that does not exceed
P100,000 (now P300,000) exclusive of interest and costs. A
counterclaim beyond its jurisdiction and limit may be
pleaded only by way of defense to weaken the plaintiff’s
claim, but not to obtain affirmative relief.”
Fifth Requisite: THE DEFENDING PARTY HAS A
COUNTERCLAIM AT THE TIME HE FILES HIS
ANSWER
How can I make a claim against you which is not yet existing?
Even if all the other requisites are present, the counterclaim
would still not be compulsory because how can one invoke
something now which he can acquire in the future?
So, those are the five essential elements. You remove one, the
counterclaim becomes permissive.
Q: Again. What is the importance of distinguishing whether the
counterclaim is compulsory or permissive?
A: If the counterclaim is compulsory, the defendant is obliged
under the law to raise it as a counterclaim in the action where
he is being sued. If he fails to invoke it, it is barred forever (Rule
9 Section 2).
If the counterclaim is permissive, the defendant has a choice of
raising it as a counterclaim in the case filed against him or he
may decide to file another action against the plaintiff, raising it
as his cause of action. It is permitted but not obliged.
Compulsory and Permissive Counterclaim compared:
1) A compulsory counterclaim arises out of or is
necessarily connected with the transaction or
occurrence that is the subject matter of the other
party's claim, while a
permissive counterclaim is not;
2) A compulsory counterclaim does not require for its
adjudication the presence of third parties of whom the
court cannot acquire jurisdiction while a permissive
counterclaim may require such;
3) A compulsory counterclaim is barred it not set up in
the action, while a permissive counterclaim is not;
4) A compulsory counterclaim need not be answered, no
default, while a permissive counterclaim must be
answered otherwise the defendant can be declared in
default.
A plaintiff who fails or chooses not to answer a compulsory
counterclaim may not be declared in default, principally
because the issues raised in the counterclaim are deemed
automatically joined by the allegations of the complaint (Gojo v.
Goyala, GR No. 26768, Oct. 30, 1970)
General Rule: A compulsory counterclaim not set up in the
answer is deemed barred.
Exceptions:
1. if it is a counterclaim which either matured or was
acquired by a party after serving his answer. In this
case it may be pleaded by filing a supplemental answer
or pleading before judgment (Sec. 9 R 11);
2. When a pleader fails to set-up a counterclaim through
oversight, inadvertence, excusable negligence, or when
justice requires, he may, by leave of court, set up the
counterclaim by amendment of the pleading before
judgment (Sec. 10, R 11).
The filing of a motion to dismiss and the setting up of a
compulsory counterclaim are incompatible remedies. In the
event that a defending party has a ground for dismissal and a
compulsory counterclaim, he must choose only one remedy. If
he decides to file a motion to dismiss, he cannot set up his
counterclaim. But if he opts to set up his counterclaim, he may
still plead his ground for dismissal as an affirmative defense in
his answer.
COUNTERCLAIMS IN CRIMINAL CASES
JAVIER vs. IAC – 171 SCRA 605
FACTS: The Javier spouses filed a criminal case against
Leon Gutierrez Jr, under BP 22 or the Bouncing Check Law,
for issuing a bad check. The criminal case was filed before
the RTC of Makati. The complainants did not reserve the
civil action. The implication is that the claim for civil
liability is deemed instituted with the criminal case.
Gutierrez in turn filed a civil action for damages against the
Javier spouses in the RTC of Catarman, Northern Samar,
where he accused the spouses of having tricked him into
signing the check.
What happened now is that he was being criminally sued in
Makati but defending himself in Catarman, Northern
Samar. He is explaining in the Samar court what he should
be doing in the Makati court.
HELD: The civil case in Samar should be dismissed. It must
be in the Makati court that Gutierrez, as accused in the
criminal charge of violation of BP 22, should explain why he
issued the bouncing check. He should explain that story in
Makati and not in Samar.
This should have been done in the form of a counterclaim
for damages for the alleged deception by the Javier spouses.
In fact, the counterclaim was compulsory and should have
been filed by Gutierrez upon the implied institution of the
civil action for damages in the criminal case.
What the SC is saying is, since the civil action for damages is
impliedly instituted in the criminal case, and he wants to hold
you liable for filing this case, he should file a counterclaim
against you in the criminal case. What is unique was that for
the first time in the Philippine Procedural Law, SC laid down the
rule that there is such thing as a counterclaim in a criminal
case, because, normally, counterclaims are only recognized in
civil cases. But since the civil action is deemed instituted in the
criminal case, the accused can file a counterclaim against the
offended party in the criminal action.
The trouble in this ruling is that, it has been subjected to a lot
of criticisms by academicians – professors of Remedial Law,
authors – they criticized the ruling. It provokes more problems
than answers. A justice of the SC remarked, “I think we made a
mistake (privately ba) in the Javier ruling. Kaya it was never
repeated.
The SC, in 1997, had another chance to comment on Javier in
the case of—
CABAERO vs. CANTOS - 271 SCRA 392
NOTE: Here, the Javier ruling was set aside.
HELD: “The logic and cogency of Javier notwithstanding,
some reservations and concerns were voiced out by
members of the Court during the deliberations on the
present case. These were engendered by the obvious lacuna
in the Rules of Court, which contains no express provision
for the adjudication of a counterclaim in a civil action
impliedly instituted in a criminal case.”
“By the foregoing discussion, we do not imply any fault in
Javier. The real problem lies in the absence of clear-cut
rules governing the prosecution of impliedly instituted civil
actions and the necessary consequences and implications
thereof. For this reason, the counter-claim of the accused
cannot be tried together with the criminal case because, as
already discussed, it will unnecessarily complicate and
confuse the criminal proceedings. Thus, the trial court
should confine itself to the criminal aspect and the possible
civil liability of the accused arising out of the crime. The
counter-claim (and cross-claim or third party complaint, if
any) should be set aside or refused cognizance without
prejudice to their filing in separate proceedings at the
proper time.”
“At balance, until there are definitive rules of
procedure to govern the institution, prosecution and
resolution of the civil aspect and the consequences
and implications thereof impliedly instituted in a
criminal case, trial courts should limit their
jurisdiction to the civil liability of the accused arising
from the criminal case.”
This means SC admitted that the Javier doctrine put more
problems and confusions in the absence of specific rules. The
counterclaim should not be tried together in a criminal case.
The trial court should confine itself in the criminal action and
that the counterclaim should be set aside without prejudice to
its right in setting up actions in the civil action.
NOTE: The ruling in the case of CABAERO is now incorporated
in the last paragraph of Section 1, paragraph [a], Rule 111 of
the 2000 Revised Criminal Procedure:
“No counterclaim, cross-claim or third-
party complaint may be filed by the
accused in the criminal case, but any
cause of action which could have been the
subject thereof may be litigated in a
separate civil action.”
D.) CROSS-CLAIMS
Sec. 8. Cross-claim. A cross-claim is any
claim by one party against a co-party
arising out of the transaction or
occurrence that is the subject matter
either of the original action or of a
counterclaim therein. Such cross-claim
may include a claim that the party against
whom it is asserted is or may be liable to
the cross-claimant for all or part of a claim
asserted in the action against the
crossclaimant.(7)
A cross claim is a claim by one party against a co-party. It may
be a claim by defendant against his co-defendant arising out of
the subject matter of the main action.
Examples:
• In an action for damages against the judgment creditor
and the Sheriff for having sold real property of the
plaintiff, the Sheriff may file a cross-claim against the
judgment creditor for whatever amount he may be
adjudged to pay the plaintiff.
• In an action against a co-signer of a promissory note
one of whom is merely an accommodation party, the
latter may file a cross-claim against the party
accommodated for whatever amount he may be
adjudged to pay the plaintiff.
• J and P are solidary debtors for the sum of
P100,000.00 because they signed a promissory note in
favor of D to collect the sum of P100,000.00. However,
although J signed the promissory note, he did not get
a single centavo. Everything went to P. Both of them
are now sued. According to J, “Actually there is a
possibility that I will pay the P100,000 to Dean when
actually I did not even get a single centavo out of it.
Everything went to P!” Therefore, J will now file a case
against P where he will allege that if J will be held
liable to D, P will reimburse him (J). So, J will also file
a claim in the same action against P.
Now, the claim filed by J against his co-defendant P is
called a CROSS-CLAIM where J is called defendant in
the case filed by D and a cross-claimant against P. P is
also the defendant in the case filed by D and a
crossdefendant with respect to the cross-claim filed by
J. So that is another case which a defendant is filing
against another defendant.
Limitations on Cross-Claim
1. Must arise out of the subject matter of the complaint
or counterclaim;
2. Can be filed only against a co-party; and
3. Is proper only when the cross claimant stands to be
prejudiced by the filing of the action against him.
Purpose: To settle in a single proceeding all the claims of the
different parties in the case against each other in order to avoid
multiplicity of suits (Republic vs. Paredes, GR No. L-12548, May
20, 1960).
Take note that the cross-claim of J against P is merely an off-
shoot of the case filed by D against J and P. Meaning, it arises
out of the same transaction or occurrence that is the subject
matter of the case filed by D against them.
PROBLEM: Suppose D files a case against J and P to collect a
promissory note signed by J and P and J alleges in his cross
claim, “Well, since we are already here, I also have a claim
against P for damages arising from a vehicular collision.”
Q: Is the cross-claim allowed in the problem?
A: NO. The cross-claim is improper. It has no connection with
the complaint of D against J and P. A counter-claim must
always arise out of a transaction or occurrence that is the
subject matter of the main action.
BAR QUESTION: Distinguish a COUNTERCLAIM from a
CROSSCLAIM.
A: The following are the distinctions:
1) A COUNTERCLAIM is a complaint by the
defendant against the plaintiff, whereas,
A CROSS-CLAIM is a claim by a defendant against a
co-defendant;
2) The life of the CROSS-CLAIM depends on the life
of the main action. A cross-claim is merely a
consequence of the case filed by the plaintiff
against the defendants. No main action, no
crossclaim (RUIZ, JR. vs. CA, infra). Whereas,
In a COUNTERCLAIM, you can kill the main
action, still the counterclaim survives.
3) A COUNTERCLAIM may be asserted whether or
not it arises out of the same transaction or
occurrence
that is the subject matter of the action, whereas,
A CROSS-CLAIM must always arise out of the same
transaction or occurrence that is the subject
matter of the action.
Example: P case filed against J to collect a loan. J
files a COUNTERCLAIM against P to recover a
piece of land. That is allowed and that is a
permissive counterclaim. But suppose D files a
case to collect a loan against J and P. J files a
CROSS-CLAIM against P to recover a piece of
land.
Q: Will it be allowed?
A: Not allowed! It has no connection with the
subject matter of the main action.
Take note that a cross-claim is any claim by one party against a
coparty arising out of the transaction of occurrence that is the
subject matter of the original action or of a counterclaim
therein. So, a cross-claim may arise either out of the original
action or counterclaim therein.
EXAMPLE: J and P file a case against D. D files his answer with
a counterclaim against the plaintiffs J and P. So J and P will
now become defendants with respect to the counterclaim filed
by D. So J now can file a cross-claim against P arising out of the
counterclaim.
HYPOTHETICAL EXAMPLE:
1.) Mortz and Charles, plaintiffs, filed a case against
Jet and Pao, defendants. There are two plaintiffs
suing two different defendants on a promissory
note. Both Jet and Pao signed the promissory note
in favor of Mortz and Charles:
COMPLAINT (Collection case – Main
Action) MORTZ and CHARLES,
plaintiffs
-versus-
JET and PAO, defendants
2.) Now, according to Jet, every centavo of the loan
went to Pao. So Jet files a cross-claim against Pao:
CROSS-CLAIM ON THE MAIN ACTION
Defendant JET, now cross-claimant
-versus-
Defendant PAO, now cross-defendant
3.) Jet also says, “Actually I have a case against Mortz
and Charles because they entered my land and
gathered some of its product”. So, he filed a
counterclaim against both Mortz and Charles. In
the counter-claim of Jet, the defendants are Mortz
and Charles for the accounting of the
improvements on the land:
COUNTERCLAIM OF JET
Defendant JET, now plaintiff
-versus-
Plaintiffs MORTZ and CHARLES, now co-
defendants
4.) Mortz now will answer the counterclaim of Jet,
“Actually,
the damages on land was not caused by me but
Charles. So Mortz files a cross-claim against co-
plaintiff Charles arising out to the counterclaim of Jet:
CROSS-CLAIM ARISING FROM THE COUNTERCLAIM
OF JET
Plaintiff MORTZ, now cross-claimant
-versus-
Plaintiff CHARLES, now cross-defendant
5.) Now, according to Pao, “Actually last month, a car
owned by both of you (Mortz and Charles) bumped
my car and that my car was damaged.” So, P filed
a counterclaim against Mortz and Charles for the
damage of the car.
COUNTERCLAIM OF PAO
Defendant PAO, now plaintiff
-versus-
Plaintiffs MORTZ and CHARLES, now defendants
6.) But Charles says, “I’m not the owner of the car but
 Mortz. So he files a cross-claim against Mortz:
CROSS-CLAIM ARISING FROM THE COUNTERCLAIM OF
PAO
Plaintiff CHARLES, now cross-claimant
-versus-
Plaintiff MORTZ, now cross-defendant
There are six (6) cases which are to be decided in the same
action. This rarely happens, but it is possible under the rules.
The obvious PURPOSE of these is to avoid multiplicity of suits
and toward these ends. According to the SC, the rules allow in a
certain case and even compel a petitioner to combine in one
litigation these conflicting claims most particularly when they
arise out of the same transaction. The rule does not only allow a
permissive counterclaim but the parties are even compelled to
raise them in a compulsory counter-claim.
RUIZ, JR. vs. CA – 212 SCRA 660
FACTS: Dean files a case against Jet and Pao. Jet files a
crossclaim against Pao. After a while, the case against Jet
and Pao was dismissed.
ISSUE: What happens to the cross-claim of Jet against Pao?
HELD: When the main action was dismissed, the cross-
action must also be dismissed. The life of a cross-claim
depends on the life of the main action. If the main action is
dismissed, the cross-claim will have to be automatically
dismissed.
“A cross-claim could not be the subject of independent
adjudication once it lost the nexus upon which its life
depended. The cross-claimants cannot claim more rights
than the plaintiffs themselves, on whose cause of action the
crossclaim depended. The dismissal of the complaint
divested the cross-claimants of whatever appealable
interest they might have had before and also made the
cross-claim itself no longer viable”
Whereas, the counterclaim can exist alone without the
complaint.
EXAMPLE: Pao filed a case against Jet for the recovery of a
piece of land. Jet’s counterclaim is damages arising from a
vehicular accident. If the complaint is dismissed the
counterclaim of Jet can still remain alive even if the main action
is dead.
But in a cross-claim, once the main action is dead, the cross-
claim is also automatically dead too. What is there to reimburse
when the complaint has been dismissed?
There is an opinion to the effect that the dismissal of the
complaint carries with it the dismissal of a cross-claim which is
purely defensive but not a cross claim seeking an affirmative
relief.
If a cross-claim is not set up, it is barred: except
1) when it is outside the jurisdiction of the court;
2) if the court cannot acquire jurisdiction over third
parties whose presence is necessary for the
adjudication of said cross-claim. In which case, the
cross-claim is considered permissive;
3) cross-claim that may mature or may be acquired after
service of the answer (Riano 2007, p. 285)
COUNTER COUNTERCLAIM and COUNTER CROSS-
CLAIM
Sec. 9. Counter-counterclaims and
countercross-claims. A counterclaim may be
asserted against an original counter-
claimant.
A cross-claim may also be filed against an
original cross-claimant.(n)
Section 9 is a new provision. There is such a thing as
countercounterclaim and counter-cross-claim. The concept of
countercounter-claim is not new. As a matter of fact, that was
asked in the bar years ago.
EXAMPLE: C filed against you an action to collect a loan. You
filed a counterclaim against her to recover a piece of land. Of
course, she has to answer your counterclaim. But she will say,
“Actually you have been molesting me with your claim when
actually you have no right over my land.” So, she files an
injunction to stop you from molesting her. In other words,
based on your counter-claim against her to recover my land,
she will file a counterclaim to stop you from molesting her. In
effect, there is counterclaim to a counterclaim.
COUNTER-CROSS-CLAIM
E.) REPLY
Sec. 10. Reply. A reply is a pleading, the
office or function of which is to deny, or
allege facts in denial or avoidance of new
matters alleged by way of defense in the
answer and thereby join or make issue as
to such new matters. If a party does not
file such reply, all the new matters alleged
in the answer are deemed controverted.
If the plaintiff wishes to interpose any claims
arising out of the new matters so alleged, such
claims shall be set forth in an amended or
supplemental complaint.(11)
ILLUSTRATION: Plaintiff files a complaint against a defendant
to collect an unpaid loan. D files his answer and raises a new
matter, affirmative defense. According to the defendant, the
obligation is already paid. Plaintiff said that you have paid the
other loan. In other words, the plaintiff would like to deny or
dispute the defendant’s affirmative defense of payment.
Q: Can I file a pleading to dispute your defense?
A: Yes, that pleading is called a REPLY.
Q: How do you classify a reply?
A: It is a responsive pleading because it is the response of the
plaintiff to the affirmative defense raised in the defendant’s
answer.
An answer is a response to the complaint and the reply is a
response to the answer.

1.
Q: Assuming that you would like to answer my reply,
what pleading would you file? 2.
A: None. That is the last pleading. So, reply is 3.
considered as the last pleading.
4.
Effect of failure to file a reply
Q: Suppose I filed a complaint, you filed an answer
invoking payment. I failed to reply. What is the effect if the
plaintiff fails to reply? Is he admitting the correctness of the
defense?
A: No. As a general rule, the failure to file a reply has no effect.
Section 10 says that if a party does not file such reply, all the
new matters alleged in the answer are deemed controverted.
Meaning, all the affirmative defenses raised in the answers are
automatically denied.
So, whether you file a reply or not, the defenses are deemed
automatically disputed. The filing of a reply is OPTIONAL.
Exceptions:
1) Where the answer is based on an actionable document
(Sec. 8 R 8); and
2) To set up affirmative defenses in the counterclaim
((Rosario vs. Martinez, GR No. L-4473, Sept. 30, 1952)
Note: Only allegations of usury in a Complaint to recover
usurious interest are deemed admitted if not denied under oath.
Hence, if the allegation of usury is contained in an answer it is
not necessary for the plaintiff to file a reply thereto in order to
deny that allegation under oath. (Regalado, p. 146)
A reply should not be confused with the answer to a
counterclaim which is also filed by the plaintiff.
Q: Give the distinctions between ANSWER TO COUNTER-CLAIM
and REPLY.
A: The following:
1) A REPLY is a response to the defenses interposed
by the defendant in his answer, whereas
An ANSWER TO A COUNTERCLAIM is a response to a
cause of action by the defendant against the plaintiff;
2) The filing of a REPLY is generally optional,
whereas
The filing of an ANSWER TO A COUNTERCLAIM is
generally mandatory under Rule 11 because if the
plaintiff fails to file an answer to the counterclaim, he
will be declared in default on the counterclaim.
OUTLINE OF FLOW OF PLEADINGS
F. THIRD (FOURTH, ETC.) – PARTY COMPLAINT
Sec. 11. Third, (fourth, etc.) - party complaint.
A third (fourth, etc.) party complaint is a
claim that a defending party may, with
leave of court, file against a person not a
party to the action, called the third
(fourth, etc.) party defendant, for
contribution, indemnity, subrogation or
PLAINTIFF DEFENDANT
Complaint
a.) Answer
b.) Counterclaim
a.) Reply to answer
b.) Answer to counterclaim
Reply to answer to counterclaim
any other relief, in respect of his
opponent's claim. (12a)
THIRD PARTY COMPLAINT is the procedure for bringing into a
case a third person who is not a party to the case.
It is a procedural device whereby a “third party” who is neither a
party nor privy to the act or deed complained of by the plaintiff,
may be brought into the case with leave of court, by the
defendant, who acts as third-party plaintiff to enforce against
such third-party defendant a right for contribution, indemnity,
subrogation or any other relief, in respect of the plaintiff’s claim.
The third-party complaint is actually independent of and
separate and distinct from the plaintiff’s complaint. Were it not
for this provision of the Rules, it would have to be filed
independently and separately from the original complaint by the
defendant against the third party.
The purpose of a third-party complaint is to enable a defending
party to obtain contribution, indemnity, subrogation or other
relief from a person not a party to the action.
EXAMPLE: A plaintiff files a case against a defendant to collect
a loan when there are two solidary debtors and one of them is
compelled to pay everything so that defendant will drag into the
picture the co-debtor for contribution or indemnity. If the two of
them were sued as defendants, all one has to do is to file a
crossclaim against his co-defendant. BUT since only one is
sued, the remedy is to avail of Section 11.
Take note that filing a third-party complaint is not a matter of
right.
THERE MUST BE LEAVE OF COURT, unlike counterclaim or
cross-claim, where you do not need any motion or leave of
court.
There is a close relationship between a cross-claim and a
thirdparty complaint because a cross-claim must arise out of
the subject matter of the main action. A third-party complaint
must be also related to the main action. It cannot be a cause of
action which has no relation to the main action.
EXAMPLE: The plaintiff files a case against the surety and the
principal debtor, so both of them are defendants, and the surety
seeks reimbursement for whatever amount he may be compelled
to pay the plaintiff. What kind of pleading would he file against
his co-defendant (the principal debtor)? CROSS-CLAIM.
BUT if the plaintiff files a case ONLY against the surety, because
anyway the principal debtor is not an indispensable party and
the surety would like to seek reimbursement from the person
who benefited from the loan, he cannot file a cross-claim
against anybody because he is the lone defendant. It is possible
for him to just file an answer. If he loses and pays the plaintiff,
then he will file another case against the principal debtor for
reimbursement.
But if he wants everything to be resolved in the same case, what
kind of pleading will he file? He must resort a THIRD-PARTY
COMPLAINT and implead the principal debtor.
The PURPOSE of a third-party complaint is for the third party
plaintiff to ask the third party defendant for:
1.) Contribution;
2.) Indemnity;
3.) Subrogation; or
4.) any other relief in respect to the opponent’s claim.
CONTRIBUTION
Example #1: Two debtors borrowed P100,000 from Janis
(creditor) and they shared the money 50-50. When the debt fell
due, the creditor filed a case against one of them. So, one of
them is being made to pay the P100,000. Not only his share
but also his cosolidary debtor. So if I am the one liable when
actually my real liability is only 50,000. What will I do? I will
file a third party complaint against my co-debtor for
contribution.
Example #2: If Andrew and Carlo are guilty of a quasi-delict
and the injured party files an action for damages against
Andrew only, Andrew may file a third-party complaint against
Carlo for contribution, their liability being solidary (Article 2194,
New Civil
Code)
INDEMNIFICATION
Example #1: Two people signed a promissory note in favor of
the creditor. But actually the entire amount went to you and
none for me. When the note fell due, I was the one sued. So I
will file a third-party complaint against you for indemnity. You
have to return to me every centavo that I will pay the creditor.
Example #2: A surety sued for recovery of debt by the creditor
may file a third-party complaint against the principal debtor for
indemnity. (Article 2047, New Civil Code)
SUBROGATION
Subrogation - You step into the shoes of someone else. Your
obligation is transferred to me.
EXAMPLE: Where a house is leased by a lessee and he
subleased the property to a third person who is now occupying
the property. In effect, the sub-lessee stepped into the shoes of
the original lessee. If the property is damaged and the lessor
sues the lessee for damages to his leased property, the lessee or
sub-lessor can file a third-party complaint and have the sub-
lessee for subrogation because actually, you stepped into the
shoes when you occupied the leased property. (Articles 1651
and 1654, New Civil Code)
For ANY OTHER RELIEF IN RESPECT TO THE
OPPONENTS CLAIM
EXAMPLE: When I buy the property of Mr. Cruz and after a
while, here comes Mr. Dee filing a case against me to claim
ownership of the land. But I bought it from Mr. Cruz who
warranted that he is the real owner. So I will now file third-party
complaint against Mr. Cruz to enforce his warranty – warranty
against eviction. (Article 1548, New Civil Code)
Take note that there is always a connection between the main
complaint and the third-party complaint because the condition
is “contribution, indemnification, subrogation and any other
relief in respect to your opponents claim.” There is always a
relation between the third party-complaint and the main
complaint against you. Here is a bar question...
BAR QUESTION: Janis files a case against Nudj to recover an
unpaid loan. Now the reason is that Carlo also owes Nudj.
Nudj says, “I cannot pay you because there is a person who has
also utang to me. What I will pay you depends on his payment
to me.” File agad si Nudj ng third-party complaint against
Carlo. Is the third-party complaint proper?
A: NO. There is no connection between the main action and the
3rd-party complaint – the loan of Nudj to Janis and the loan of
Andrew to Nudj. Walang connection. Anong pakialam ni Janis
sa utang ni Andrew kay Nudj? Not in respect to his opponent’s
claim.
BAR QUESTION: How do you determine whether a 3rd-party
complaint is proper or improper? What are the tests to
determine its propriety?
A: Case of
CAPAYAS vs. CFI – 77 PHIL. 181
HELD: There are four (4) possible tests to determine the
propriety of a third-party complaint. In order for it to be
allowed, it must pass one of them. That is the reason when
you file it, you need the permission of the court to
determine whether it is proper or not and the original
plaintiff may object to the propriety of the third-party
complaint.
There are the FOUR TESTS (any one will do):
1. A third-party complaint is proper if it arises out of
the same transaction on which plaintiff is based,
or although arising out of another or different
transaction, is connected with the plaintiff's claim.
EXAMPLE: A creditor sued only one solidary
debtor. So you can file a third-party
complaint for contribution. Anyway, there is
only one loan and our liability arises out of
the same promissory note.
(A third-party complaint is proper if the
thirdparty’s complaint, although arising out
of another transaction, is connected with the
plaintiff’s claim.)
EXAMPLE: The car owner is sued for culpa
aquiliana for damages arising from vehicular
collision and he files a third-party complaint
against the insurance company for indemnity
based on the contract of insurance. So it is
connected with plaintiff’s claim, and that is
precisely the purpose of my insurance
coverage.
2. Whether the third party defendant would be liable
to the original plaintiff or to the defendant for all
or part of the plaintiff's claim against the original
defendant. Although the third party defendant's
liability arises out of another transaction.
EXAMPLE: Sublease. Roy leased his property
to Eric. Eric subleased it to Rudolph. If Roy’s
property is damaged, Roy will sue Eric. But
Eric will also sue Rudolph. The sub-lessor
has the right to file a third-party complaint
against the sub-lessee for the damaged leased
property which is now occupied by the sub-
lessee. The third-party defendant Rudolph
 would be liable to plaintiff’s (Roy’s) claim.
Rudolph will be liable to Roy for Roy’s claim
against Eric although the liability of Rudolph
arises out of another transaction (Sub-lease
contract)
3. Whether the third party defendant may assert any
defense which the third party plaintiff has or may
have against plaintiff’s claim.
EXAMPLE: Tato is a registered owner of a car
and then sold it to Philip. Philip is the actual
owner. However, Philip did not register the
sale to the LTO. The registered owner is si
Tato lang gihapon although he is no longer
the real owner. While Philip was driving that
car it bumped the car of Lewee Tanduay.
Lewee researched the owner of the car at LTO
and ang lumabas ay si Tato. So ang ginawa
ni Lewee, ang kinasuhan nya ay si Tato na
walang malay...under the law, the registered
owner is liable. Of course, when Tato got the
complaint, “Wala akong alam sa sinasabi nyo,
that car is no longer mine. I sold that two
years ago, I have no idea what happened.”
So obviously, Tato arrived at the conclusion
that si Philip and nakabangga. Tato filed a
third-party complaint against Philip because
he is the real owner. When Philip got the
third-party complaint, and because he knows
the story, in fact he was the one driving, ang
ginawa niya, nilabanan niya ng diretso si
Lewee. Meaning, instead of Tato fighting
Lewee, Philip fought Lewee directly. Frontal
na ba. Sabi ni Philip, “I was not at fault, you
(Lewee) are at fault.” So here is a situation
where Lewee sues Tato, Tato sues Philip but
Philip fights Lewee, as if he is the real
defendant, then the third party complaint
must be proper. It must be related.
Take note that there is a close similarity between a third-party
complaint and a cross-claim because as we have learned, a
crossclaim must also be related to the same action.
SAMALA vs. VICTOR – 170 SCRA 453
FACTS: This case involves a vehicular accident. Philip,
while riding on a passenger jeep owned by Tato, the jeep
was bumped by the truck of Lewee, injuring Philip. Philip
filed a case for damages arising from breach of contract
against Tato. Tato filed a third-party complaint against
Lewee. After trial, the court found that Tato has not at fault.
The fault is entirely against Lewee . So the action against
Tato was dismissed, but the court held that Lewee be
directly liable to Philip.
It was questioned by Lewee. Lewee claims that is should be
Tato who is liable to Philip because Philip did not sue me
(Lewee), “Bakit ako ang ma-liable hindi naman ako ang
dinemanda ni Philip? So procedurally, I am liable to Tato,
Tato is liable to Philip.”
ISSUE #1: Can Lewee, a third-party defendant, be held liable
directly to Philip, the original plaintiff?
HELD: YES, that is possible. In a third-party complaint,
normally Lewee is liable to Tato. But Lewee can be made
liable to Philip, or Lewee can be made liable to both Philip
and Tato because that is covered by the phrase “OR ANY
OTHER RELIEF” – so broad that it cover a direct liability of
a third party defendant to the original plaintiff.
ISSUE #2: How can the court award damages to Philip
based on the theory of culpa aquiliana when his complaint
is based on culpa contractual? Can Lewee be held liable for
culpacontractual?
HELD: YES. That is also possible because “the primary
purpose of this rule is to avoid circuitry of action and to
dispose of in one litigation, the entire subject matter arising
from a particular set of fact it is immaterial that the third-
party plaintiff asserts a cause of action against the third
party defendant on a theory different from that asserted by
the plaintiff against the defendant. It has likewise been
held that a defendant in a contract action may join as
third-party defendants those liable to him in tort for the
plaintiff’s claim against him or directly to the plaintiff.”
Another interesting case which is to be compared with the
abovementioned case is the 1989 case of
SHEAFER vs. JUDGE OF RTC OF OLONGAPO – 167 SCRA
386
NOTE: This case although it refers to third-party complaint
is related to criminal procedure. This is similar to the case
of JAVIER where the issue is, is there such a thing as a
counterclaim in a criminal case where the offended party
did not make a reservation. In SHAFER, is there such a
thing as a third-party complaint in a criminal case?
FACTS: Shafer while driving his car covered by TPL,
bumped another car driven by T. T filed a criminal case
against S for physical injuries arising from reckless
imprudence. T did not make any reservation to file a
separate civil action. So obviously, the claim for civil
liability is deemed instituted.
Shafer was covered by the insurance, so he filed a third-
party complaint against the insurance company insofar as
the civil liability is concerned. The insurance company
questioned the propriety of d third-party complaint in a
criminal case, because according to the insurance
company, the third-party complaint is entirely different
from the criminal liability.
ISSUE: Whether or not the filing of a third-party complaint in a
criminal case is procedurally correct.
HELD: Yes, it is proper. There could be a third party
complaint in a criminal case because an offense causes two
classes of injuries – the SOCIAL and the PERSONAL injury.
In this case, the civil aspect of the criminal case is deemed
impliedly instituted in the criminal case. Shafer may raise
all defenses available to him in so far as the criminal and
civil aspects are concerned. Shafer’s claim of indemnity
against the insurance company are also the claim by the
victim in the criminal claim. Therefore Shafer’s claim
against the insurance company is related to the criminal
case. So similar to Javier that an accused may also file a
compulsory counterclaim in a criminal case when there is
no reservation.
BUT in the light of the ruling in the case of
CABAERO vs. CANTOS, supra
The SHAFER ruling has to be set aside for the meantime
because there is no such thing as third-party complaint in
criminal cases now. In other words, forget it in the
meantime. Also, forget counterclaims in criminal cases even
if they arose out of the main action.
This case refers to JAVIER on whether or not there is such a
thing as a compulsory counterclaim in criminal cases. SC
said, “Huwag muna samok!” If we will allow it in criminal
cases it will only complicate and confuse the case. The
attention might be divested to counterclaims or cross-claims
or thirdparty complaints, etc.
HELD: “The trial court should confine itself to the criminal
aspect and the possible civil liability of the accused arising
out of the crime. The counter-claim (and cross-claim or
third party complaint, if any) should be set aside or refused
cognizance without prejudice to their filing in separate
proceedings at the proper time.”
We will go to the old case of
REPUBLIC vs. CENTRAL SURETY CO – 25 SCRA 641 [1968]
FACTS: Hannah filed a case against Rina for a liability
amounting to P350,000. So it was filed in RTC. Rina filed a
third-party complaint against ConCon Insurance Company
for indemnity insurance but the maximum insurance is only
P50,000. The insurance company moved to dismiss on the
ground that the court has no jurisdiction because third-
party complaint is only for P50,000 which is supposed to be
within the competence of the MTC.
ISSUE: Is the insurance company correct?
HELD: NO. The insurance company is wrong. The third-
party complaint is only incidental. The third-party
complaint need not be within the jurisdiction of the RTC
where the principal action is pending because the third-
party complaint is really a continuation and an ancillary to
the principal action. If the court acquires jurisdiction over
the main action, automatically, it acquires jurisdiction over
the third-party complain which is mainly a continuation of
the principal action.
Now, the same situation happened in another case. The case of
EASTERN ASSURANCE vs. CUI – 105 SCRA 642
FACTS: Carol is a resident of Davao City. Cathy is a
resident of Cebu City. Carol filed a case before the RTC of
Davao City against Cathy. Cathy files a third-party
complaint against Joy, a resident of Manila. Is the venue
proper?
HELD: The venue is proper because the venue of the main
action is proper. So automatically third-party complaint is
also proper. The third-party has to yield to the jurisdiction
and venue of the main action.
Now of course, if there’s such a thing as 3rd party complaint,
there is also a 4th, 5th, 6th or 7th complaint. That is possible
but everything is with respect to his opponent’s claim.
EXAMPLE:
A B C D
E FACTS: Mobil Philippines filed a case against Sapugay, its
A files a B files a 3rd C files a 4th D files a
complaint party party 5th party
against B complaint complaint complaint
against C against D against E
A’s car was bumped by B. But B contented that the reason that
he bumped A’s car was because he was bumped by C and the
same goes to C, D, E. B then files a 3rd party complaint against
C. C files a 4th party complaint against D. D files a 5th party
complaint against E. Meaning, pasahan, ba. They will throw
the liability to the one who did it. That is a good hypothetical
example of how a fourth, fifth, sixth party complaint can come
into play.
Rule on Venue and Jurisdiction Inapplicable
Jurisdiction over the third-party complaint is but a continuation
of the main action and is a procedural device to avoid
multiplicity of suits. Because of its nature, the proscription on
jurisdiction and venue applicable to ordinary suits may not
apply. (Eastern Assurance vs. Cui, 105 SCRA 622 [1981])
Grounds for Denial of Third-Party Complaint
a. When allowance would delay resolution of the original
case or when the third-party defendant could not be
located; and
b. When extraneous matters to issue of possession would
unnecessarily clutter a case of forcible entry.(del
Rosario v. Jimenez 8 SCRA 549)
Summons on third, fourth, etc. party defendant must be served
for the court to acquire jurisdiction over his person, since he is
not an original party.
A third-party complaint is not proper in an ction for declaratory
relief (Comm. of Customs vs. Cloribel, GR No. L - 21036, June
30, 1977)
Where the trial court has jurisdiction over the main case, it also
has jurisdiction over the third-party complaint, regardless of the
amount involved as a third-party complaint is merely auxiliary
to an is a continuation of the main action (Rep. vs. Central
Surety and Insurance Co. GR No. L 27802, Oct. 26, 1968)
Sec. 12. Bringing new parties. - When the
presence of parties other than those to the
original action is required for the granting
of complete relief in the determination of a
counterclaim or cross-claim, the court
shall order them to be brought in as
defendants, if jurisdiction over them can
be obtained.
Distinguished from a Third-Party Complaint
A third party complaint is proper when not one of the third-
party defendants therein is a party to the main action. If one or
more of the defendants in a counterclaim or cross-claim is
already a party to the action, then the other necessary parties
may be brought in under this section.
The best example of Section 12 is the case of:
SAPUGAY vs. CA – 183 SCRA 464
gasoline dealer. Sapugay filed an answer and interposed a
counterclaim for damages against Mobil and included
Cardenas (the manager of Mobil) who is not a plaintiff.
ISSUE: Whether or not the inclusion of Cardenas in the
counterclaim is proper where he is not a plaintiff in the
Mobil case. C

HELD: The inclusion of Cardenas is proper. The general rule
that the defendant cannot by a counterclaim bring into the
action any claim against persons other than the plaintiff,
admits of an exception under this provision (Section 12) –
meaning, if it is necessary to include a 3rd person in a
counterclaim or cross-claim, the court can order him to be
brought in as defendants. In effect, the bringing of Cardenas
in the case is sanctioned by the Rules.
The case of SAPUGAY should not be confused with the case of:
CHAVEZ vs. SANDIGANBAYAN – 198 SCRA 282
FACTS: Petitioner Francisco Chavez (former solicitor
general) represented the government for PCGG. The case
arose out of PCGG cases wherein Enrile was sued for
accumulation of his ill-gotten wealth. Enrile filed an answer
to the complaint. Enrile contends that the case is
harassment suit whose mastermind was the Solicitor
General himself. Enrile files a counterclaim against Chavez.
(Enrile’s lawyer maybe well aware of the Sapugay case the
one sued is the lawyer.) Chavez questioned such
counterclaim contending that he was not a plaintiff.
Sandiganbayan denied such contention.
HELD: The inclusion of plaintiff’s lawyer is improper.
“To allow a counterclaim against a lawyer who files a
complaint for his clients, who is merely their representative
in court and not a plaintiff or complainant in the case
would lead to mischievous consequences. A lawyer owes his
client entire devotion to his genuine interest, warm zeal in
the maintenance and defense of his rights and the exertion
of his utmost learning and ability. A lawyer cannot properly
attend to his duties towards his client if, in the same case,
he is kept busy defending himself.”
Q: Is the SC suggesting that a lawyer who sued in a harassment
case can get away with it? Does that mean to say that the
lawyer is immune from suit?
A: NO, the SC does not say a lawyer enjoys a special immunity
from damage suits. However, when he acts in the name of the
client, he should not be sued in a counterclaim in the very same
case where he has filed only as a counsel and not as party. Only
claims for alleged damages or other causes of action should be
filed in a separate case. Thus, if you feel that the lawyer is
acting maliciously, you file a complaint but in a separate case.
That’s why the case of Sapugay should not be confused with
Chavez.
Sec. 13. Answer to third (fourth, etc.) party
complaint. - A third (fourth, etc.)-party
defendant may allege in his answer his
defenses, counterclaims or cross-claims,
including such defenses that the third
(fourth, etc.)-party plaintiff may have
against the original plaintiff in respect of
the latter's claim against the third-party
plaintiff. (n)
A vs. B; B vs. C. Normally, B will defend himself against the
complaint of A and C will defend himself in the complaint of B.
That is supposed to be the pattern. Normally, C does not file a
direct claim against A. But the law allows C in defending
himself, to answer the claim of A. The law allows him to file a
direct counterclaim against A.
If C has the right to frontally meet the action filed by A –
meaning, C will fight A directly – if C has the right to assert any
defense which B has against A and even for C to litigate against
A, then it must be a proper third party complaint. That has
happened several times.
EXAMPLE: B owns a car which was already sold to C. The
trouble is that B never registered the transaction. On the
record, B is still the registered owner. Then C, while driving the
car, meets an accident and injures A. When A looked at the
record, the owner is B. So A files a case against B. So B will file
a third party complaint against the real owner (C). Now, C can
frontally meet the complaint filed by A. That is the best example
where you have the right against the original plaintiff or even
assert a counterclaim against him. As a matter of fact, that last
test is now incorporated as a new provision (Section 13).
In the case of:
SINGAPORE AIRLINES vs. CA – 243 SCRA 143 [1995]
FACTS: Aying filed a case against Bugoy. Bugoy filed a third
party complaint against and Cyle who wants to frontally
meet the main complaint filed by Aying
HELD: If that is your purpose, you have to file two (2)
answers – you file an answer to the third party complaint
and you file a second answer to the main complaint filed by
Aying.
“A third-party complaint involves an action separate and
distinct from, although related to, the main complaint. A
third-party defendant who feels aggrieved by some
allegations in the main complaint should, aside from
answering the third-party complaint, also answer the main
complaint.”
Normally, Cyle answers the 3rd party complaint of Bugoy and
does not answer to the complaint of Aying. But according to
SINGAPORE case, if Cyle feels aggrieved by the allegations of
Aying, he should also answer the main complaint of Aying.
Practically, he shall answer the 3rd party complaint and the
main complaint.

ILLUSTRATIONS: A files a case against B

B files a 3rd party complaint against

 BUT in subsequent pleadings like the answer, reply, it is not
necessary to write the name of everybody. What the law requires
is to write the name of the first plaintiff followed by the term ‘ET
AL”. Example: Ms. Quitain, et al, plaintiffs vs. Ms. Pastor, et al,
defendants.
Rule 7

So the rule is, it is only in the complaint where the name of all
PARTS OF A PLEADING the parties are required to be stated, but in subsequent
pleadings, no need. But there is an EXCEPTION to this rule.
There are instances where the law does not require the name of
the parties to be stated even in the complaint.
Sec. 1 – Caption. The caption sets forth the
name of the court. The title of the action,
and docket number if assigned. Q: What are the instances where the law does not require the
name of the parties to be stated even in the complaint or
pleading?
The title of the action indicates the names
of the parties. They shall all be named in
the original complaint or petition; but in
subsequent pleadings it shall be sufficient
if the name of the first party on each side
be started with an appropriate indication
when there are other parties.
A: These are the following:
Their respective participation in the case
shall be indicated. 1.) Subsequent Pleading (e.g. answer, reply, etc.)
(Section 1);
ILLUSTRATION:
2.) Class suit (Rule 3, Section 12);

CAPTION contains the following: 3.) When the identity or name of the defendant is
Republic of the Philippines unknown (Rule 3, Section 14);
1) the name of the court;
11th Judicial Region
2) the title of the action and 4.) When you sue an entity without judicial
3) the docket number if assigned. Regional Trial Court of Davao personality
Branch 12
Juan dela Cruz,
Plaintiff Civil Case #12345
TITLE
-versus- For: Annulment of Contract
Osama bin Laden
Defendant

COMPLAINT

BODY sets forth: Plaintiff, through counsel respectfully alleges that:

1. x x x x x x;
1) its designation;
2) the allegation of the party's claims and defenses;
3) the relief prayed for; and 2. x x x x x x;
4) the date of the pleading 3. x x x x x x

So, there must be a caption, title. Take note, the title of the (Rule 3, Section 15);
action indicates the names of the parties. They shall all be
named in the original complaint or petition; but in the 5.) If a party is sued in his official capacity. Official
subsequent pleadings, it shall be sufficient if the name of the designation is sufficient. [e.g. Mr. Acelar vs. City
Mayor of Davao.] (Unabia vs. City Mayor, 99 Phil.
first party of each side be stated without the others. You only
253)
write the first name of plaintiff and defendant and followed by
the word ‘ET AL”.
Variance between caption and allegations in the pleading

Q: Suppose there are 20 plaintiffs and 20 defendants in the
concept of permissive joinder of parties. Now is it necessary that
they shall be named?
A: In the complaint, YES. They shall all be named. It is possible
that the title alone will reach 3 or more pages.
It is not the caption of the pleading but the allegations therein
which determine the nature of the action and the court shall
grant relief warranted by the allegations and proof even if no
such relief is prayed for (Solid Homes Inc. vs. CA, 271 SCRA
157; Banco Filipino vs. CA, 332 SCRA 241; Lorbes vs. CA 351
SCRA 716). Thus, a complaint captioned as unlawful detainer is
actually an action for forcible entry where the allegations show
that the possessor of the land was deprived of the same by
force, intimidation, strategy, threat or stealth. Likewise, a
complaint for unlawful detainer is actually an action for
collection of a sum of money where the allegations of the
complaint do not disclose that the plaintiff demanded upon the
defendant to vacate the property but merely demanded to pay
the rentals in arrears.
In one case, while the complaint was denominated as one for
specific performance, the allegations of the complaint and the
relief prayed for actually and ultimately sought for the execution
of a deed of conveyance to effect a transfer of ownership of the
property in question. The action therefore, is a real action
(Gochan vs. Gochan, 372 SCRA 256). Also although the
complaint was denominated as one for reformation of the
instrument, the allegations of the complaint did not preclude
the court from passing upon the real issue of whether or not the
transfer between the parties was a sale or an equitable mortgage
as the said issue has been squarely raised in the complaint and
had been the subject of arguments and evidence of the parties.
(Lorbes vs. CA 351 SCRA 716).
If the petitioner filed before the SC a petition captioned “Petition
for Certiorari” based on Rule 65 but the allegations show that
the issues raised are pure questions of law, the cause of action
is not one based on Rule 65 which raises issues of jurisdiction,
but on Rule 45 which raises pure questions of law. The
allegations of the pleading determine the cause of action and
not the title of the pleading (De Castro vs. Fernandez, Jr. GR
No. 155041, Feb. 14, 2007)
Sec. 2. The body. - The body of the
pleading sets forth its designation, the
allegations of the party's claims or
defenses, the relief prayed for, and the
date of the pleading. (n)
a) Paragraphs - the allegations in the body
of a pleading shall be divided into
paragraphs so numbered as to be readily
identified, each of which shall contain a
statement of a single set of circumstances
so far as that can be done with
convenience. A paragraph may be referred
to by its number in all succeeding
pleadings. (3a)
(b) Headings - When two or more causes of
action are joined, the statement of the
first shall be prefaced by the words
"First cause of action", of the second by
"second cause of action," and so on for
the others.
(c) Relief - The pleading shall specify the
relief sought, but it may add a general
prayer for such further or other relief as
may be deemed just or equitable. (3a,
R6)
(d) Date - Every pleading shall be dated. (n)
In the body, you state your allegations or defenses. Then at the
end, you state the relief which we call PRAYER – what you are
asking the court: “Wherefore, it is respectfully prayed that
judgment be rendered ordering defendant to pay plaintiff his loan
of P1 million with interest of 10% p.a. from this date until fully
paid.” Then, you end up with the date of the pleading: “Davao
City, Philippines, December 10, 1997.”
A pleading is divided into paragraphs so numbered as to be
readily identified. Normally, a complaint starts: “Plaintiff, thru
counsel, respectfully alleges that x x x.” Then first paragraph,
second paragraph and so on. The first paragraph is normally
the statement of the parties and their addresses which is
required under Rule 6 where a complaint must state the names:
1. Plaintiff Juan dela Cruz is of legal age, a resident of
Davao City whereas defendant Pedro Bautista, is also
of legal age and a resident of Davao City.
2. On such and such a date, defendant secured a loan
from plaintiff in the amount of so much payable on this
date.
3. The loan is now overdue but defendant still refused to
pay.
So every paragraph is numbered so that it can easily be
identified in the subsequent pleadings. So in his Answer, the
defendant will just refer to the #, “I admit the allegations in
paragraph #5)
Paragraph [b] is related to Rule 2 on joinder of causes of action.
Can you file one complaint embodying two or more causes of
action? YES.
EXAMPLE: Angelo wants to file a case against Ina to collect
three unpaid promissory notes. So, there are three causes of
action. The lawyer of Angelo decided to file only one complaint
collecting the three promissory notes. Now, how should he
prepare the complaint containing the three promissory notes?
Plaintiff respectfully alleges: 1. that he is of legal
age x x x.
FIRST CAUSE OF ACTION: In 1995, there was
a loan secured amounting to so much and
it is not paid until now;
SECOND CAUSE OF ACTION: In 1995, there
was a second loan…became payable and
is not paid.
THIRD CAUSE OF ACTION: x x x x.
So, you indicate your different causes of action. That is how
you prepare your complaint. On the other hand, the defendant
will answer:
ANSWER:
ANSWER TO THE FIRST CAUSE OF ACTION x x x,
ANSWER TO THE SECOND CAUSE OF ACTION x x
x, ANSWER TO THE THIRD CAUSE OF ACTION x x
x.
Do not combine them together in one paragraph. Even in trial
when you present your exhibits, you might get confused
because you combined all the three causes of action in one
paragraph. But with this one, the presentation is clearer, the
outline is clearer and it is more scientifically arranged than
joining them in one story.
Under paragraph [c], the pleading must state the relief sought.
But it may add a general prayer for such further other relief as
may be just and equitable like yung mga pahabol na “Plaintiff
prays for such further or other relief which the court may deem
just or equitable.”
The relief or prayer, although part of the complaint, does not
constitute a part of the statement of the cause of action. It does
not also serve to limit or narrow the issues presented (UBS vs.
CA 332 SCRA 534)
It is the material allegations of the complaint, not the legal
consequences made therein or the prayer that determines the
relief to which the plaintiff is entitled. (Banco Filipino vs. CA
332 SCRA 241).
It is important to remember that the court may grant a relief not
prayed for as long as the relief is warranted by the allegations of
the complaint and the proof. (Lorbes vs. CA).
Q: Is the prayer or relief part of the main action?
A: NO, it is part of the complaint or answer but it may indicate
what is the nature of the cause of action. Cause of actions are
mere allegations. Prayer is not part of the action but it is
important because it might enlighten us on the nature of the
cause of action. That is the purpose of relief or prayer.
EXAMPLE: Angelo filed a case against Ina for annulment of a
contract of sale. If you look at the caption, it is a personal action
which should be instituted in the place where the parties reside.
But if you look at the prayer: “Wherefore, it is respectfully
prayed that after trial, the deed of sale shall be annulled on the
ground of intimidation, and the ownership of the land sold to the
defendant in Digos be ordered returned.” Actually, you are trying
to recover the ownership of the land. So in other words, it is not
a personal action but a real action.
Sec. 3. Signature and Address.- Every
pleading must be signed by the party or
counsel representing him, stating in either
case his address which should not be a
post office box.
xxxxx
Signature and address – every pleading must be signed by the
party or the counsel representing him.
A signed pleading is one that is signed either by the party
himself or his counsel. Section 3, Rule 7 is clear on this matter.
It requires that a pleading must be signed by the party or
counsel representing him. Therefore, only the signature of either
the party himself or his counsel operates to validly convert a
pleading from one that is unsigned to one that is signed.
(Republic vs. Kenrick Development Corp. 351 SCRA 716)
“It has been held that counsel’s authority and duty to sign a
pleading are personal to him.” He may not delegate it to just any
person because the signature of counsel constitutes an
assurance by him that:
1. he has read the pleading;
2. that to the best of his knowledge, information and
belief, there is a good ground to support it; and
3. that it is not interposed for delay.
Under the Rules of Court, it is counsel alone, by affixing his
signature, who can certify to these matters.
“The preparation and signing of a pleading constitute legal work
involving practice of law which is reserved exclusively for the
members of the legal profession. Accordingly however, counsel
may delegate the signing of a pleading to another lawyer but
cannot do so in favor of one who is not. In so ruling the Court
cites The Code of Professional Responsibility, the pertinent
provision on which provides:
Rule 9.01 – A lawyer shall not delegate to any unqualified
person the performance of any task which by law may only be
performed by a member of the Bar in good standing.
“A signature by agents of a lawyer amounts to signing by
unqualified persons, something the law strongly proscribes.
Therefore, the blanket authority entrusted to just anyone is
void. Any act taken pursuant to that authority is likewise void.
Hence, there is no way it could be cured or ratified by counsel.”
(Republic vs. Kenrick Development Corp.)
Not Post Office Address, why?
Take note of the prohibition now: You must state your address
which should not be a post office box because one difficulty is
that the exact date when you claim your mail cannot be
determined if it is a P.O. box. But if it is served to his office, the
exact date can easily be determined.
IMPLIED CERTIFICATION IN A PLEADING
Section 3, second paragraph:
“The signature of counsel constitutes a
certification by him that he has read the
pleading; that to the best to his
knowledge, information, and belief there is
good ground to support it; and that it is
not interposed for delay.”
Q: When a lawyer signs a pleading, what is he certifying?
A: Second paragraph says, he is certifying that he has read the
pleading, that to the best of his knowledge, information and
belief, there is a good ground to support it, and it is not
interposed for delay. That is called as an IMPLIED
CERTIFICATION IN A PLEADING (Arambulo vs. Perez, 78 Phil.
387). That was already asked in the bar once.
BAR QUESTION: What is the meaning of the phrase “Implied
Certification in a Pleading”?
A: “Implied Certification in a Pleading” means that when a
lawyer signs a pleading he is certifying that he has read it, to
the best of his knowledge, information and belief there is a good
ground to support it, and it is not interposed for delay.
Section 3, last paragraph:
An unsigned pleading produces no legal
effect. However, the court may, in its
discretion, allow such deficiency to be
remedied if it shall appear that the same
was due to mere inadvertence and not
intended for delay. Counsel who
deliberately files an unsigned pleading, or
signs a pleading in violation of this Rule,
or alleges scandalous or indecent matter
therein, or fails to promptly report to the
court a change of his address, shall be
subject to appropriate disciplinary action.
(5a)
So, when a pleading is not signed it produces no legal effect. It
is as if no pleading has been filed.
Q: Now, suppose it was just an inadvertent omission, it was not
intentional maybe because he was hurrying to file the pleading,
the lawyer had it filed when actually he has not signed it yet.
A: Well, actually if that is in good faith, the court may forgive
the counsel because the law says, “however, the court, may in
its discretion, allow such deficiency to be remedied if it shall
appear that the same was due to mere inadvertence and not
intended for delay.” Maybe, alright, you sign it now in order that
it will produce a legal effect.
However, if the lawyer files a pleading which is UNSIGNED
DELIBERATELY, then, according to the rules, he shall be
subject to appropriate disciplinary action. That is practically
unethical ‘no? Not only that, he is also subject to disciplinary
action if he signs a pleading in violation of this Rule or alleges
scandalous or indecent matter therein, or fails to promptly
report to the court a change of his address..
Now, this ground – fails to promptly report to the court a change
of his address has been inserted in 1997 Rules, this was not
found in the prior Rules perhaps to prevent delays.
Sec. 4. Verification - Except when otherwise
specifically required by law or rule,
pleadings need not be under oath, verified
or
accompanied by affidavit. (5)
A pleading is verified by an affidavit that
the affiant has read the pleading and that
the allegations therein are true and
correct of his knowledge and belief.
A pleading required to be verified which
contains a verification based on
"information and belief," or upon
"knowledge, information and belief," or
lacks a proper verification, shall be treated
as an unsigned pleading. (6a)
Q: What do you understand by verification in a pleading?
A: It means that there is an affidavit accompanying the pleading
that the pleader will certify that he prepared the pleading, that
all allegations therein are true and correct. For example: In the
pleading the plaintiff will say:

Q: What do you mean by this? I, Juan de la Cruz of legal age, after being
sworn in accordance with law, hereby say
A: A lawyer will file a pleading in court, he will say this is his
that:
address, and then he moves his office without telling the court
or the opposing counsel of his new address. So, the court will be
I am the plaintiff in the above entitled case.
sending notices and orders to his old address and it is returned
to sender because the lawyer already moved to another place. I caused the preparation of this complaint;
So, it causes delay.
I read the allegations therein;
So, in order to penalize the lawyer, subject to disciplinary And they are true and correct of my own
action, it is his obligation to inform the court and even the
knowledge.
opposing counsel about his new address so that all court
orders, decisions and all pleadings will be served on his
address. I think what prompted the SC to insert this is the fact Signed
that it has been the cause of delays in many cases. Affiant
Subscribed and sworn to before me on this
Disciplinary action on counsel in the following cases:
2nd day of October 2001, in the City of
Cebu, Philippines.
1. deliberately filing an unsigned pleading;
2. deliberately signing a pleading in violation of the Panfilo Corpuz
Rules;
3. alleging scandalous or indecent matter in the pleading; Notary Public
or
That is what you call verification of a pleading. That the pleader,
4. failing to promptly report a change of his/her address.
whether plaintiff or defendant, will attest that the allegations in
his complaint or in his answer are true and correct of his own
Signature of a disjoined party knowledge. And then, he will sign it, and then below that, there
will be the so-called “JURAT” - Subscribed and sworn to before
me on this ___ day of December 1997, in the City of Cebu,
The Court rules that the absence of the signature of the person Philippines. Then, signed by the notary public. Meaning,
misjoined as a party-plaintiff in either the verifification page or statements, in the pleading are confirmed to be correct, under
certification against forum shopping is not a ground for the oath, by the defendant. That is called, the verification of a
dismissal of the action. There is no judicial precedent affirming pleading.
or rejecting such a view, but we are comfortable with making
such a pronouncement. A disjoined party plaintiff has no How is a Pleading Verified
business participating in the case as a plaintiff in the first place,
and it would make little sense to require the disjoined party in A pleading is verified by an affidavit. This affidavit declares that:
complying with all the requirements expected of plaintiffs (Chua a) the affiant has read the pleading, and
v. Torres GR No. 151900, Aug 30, 2005).
b) that the allegations therein are true and correct of his
personal knowledge or based on authentic records
(Sec.
VERIFICATION 4 as amended by A.M. No. 00-2-10, May 1, 2000)

Significance of Verification
The purpose of verification is to insure good faith in the
averments of a pleading or are true and correct, not merely
speculative. (Sarmiento vs. Zaratan GR No. 167471, February 5,
2007).
Effect of lack of Verification
Lack of verification in a pleading is a formal defect, not
jurisdictional defect, and can be cured by amendment. (Phil.
Bank of Commerce vs. Macadaeg, L-14174, Oct. 31, 1960)
The absence of a verification may be corrected by requiring an
oath. The rule is in keeping with the principle that rules of
procedure are established to secure substantial justice and that
technical requirements may be dispensed with in meritorious
cases. (Pampanga Sugar Development Company, Inc. vs. NLRC
272 SCRA 737) The court may order the correction of the
pleading or act on an unverified pleading if the attending
circumstances are such that strict compliance would not fully
serve substantial justice, which after all, is the basic aim for the
rules of procedure. (Robert Development Corp. vs. Quitain 315
SCRA 150; Joson vs. Torres 290 SCRA 279)
Q: What do you think will happen if a pleading is verified by a
party and it turns out that the allegations are false? And that he
deliberately made those allegations false and under oath.
A: Well, you know your Criminal Law. That will be a ground for
the prosecution for the crime of perjury, because that is a false
affidavit. But if the pleading is not verified, even if they are false,
there is no perjury, because perjury requires a sworn statement
by the accused.
Q: Does the law require every pleading to be verified?
A: NO. The GENERAL RULE is, pleadings need not be under
oath, EXCEPT when otherwise specifically required by law or
this rule. When the law or rules require a pleading to be verified,
then it must be verified, otherwise it is formally detective. If the
law is silent, verification is not necessary and the pleading is
filed properly.
Litigants not required to read the very same document to
be filed in court
Generally, a pleading is not required to be verified unless
required by law or by the Rules of Court. Verification, when
required, is intended to secure an assurance that the
allegations of a pleading are true and correct; are not
speculative or merely imagined; and have been made in good
faith. To achieve this purpose, the verification of a pleading is
made through an affidavit or sworn statement confirming that
the affiant has read the pleading whose allegations are true and
correct of the affiant's personal knowledge or based on
authentic records.
However, the Rules do not require the litigants to read the very
same document that is to be filed before the courts; what the
Rules require is for a party to read the contents of a pleading
without any specific requirement on the form or manner in
which the reading is to be done. That a client may read the
contents of a pleading without seeing the same pleading to be
actually filed with the court is, in these days of e-mails and
other technological advances in communication not an
explanation that is hard to believe. The variance between the
dates of the Petition and the Verification does not necessarily
lead to the conclusion that no verification was made, or that the
verification was false. (Sps. Valmonte v. Alcala, GR No. 168667,
July 23, 2008)
BAR QUESTION: Name as many pleadings as you can which
must be verified.
A: The following:
1) Rule 8 – when you deny the due execution of an
actionable document;
2) Summary Rules – all pleadings under summary rules
should be verified;
3) Special Civil Actions – petitions for certiorari,
prohibition and mandamus.
4) Statement of Claim for Small Claims cases as well as
the response thereto (Secs. 5 & 11, Procedure for
Small
Claims Cases)
5) Complaint for Injunction (Sec. 4 R 58)
6) Application for Appointment of Receiver (Sec. 1 R 59)
7) Application for Support Pendente Lite (Sec. 1 R 69)
8) Petition for Forcible Entry or Unlawful Detainer, the
answers thereto, and the answers to any compulsory
counterclaim and cross-claim pleaded in the answer
(Sec.
4 R 70)
9) Petition for Indirect Contempt (Sec. 4 R 71)
10) Petition for Relief from Judgment or Order (Sec. 3 R
38)
11) Petition for Review from the RTC to the SC (Sec. 2(c) R
41)
12) Petition for Review from RTC to SC (Sec. 1 R 42)
13) Petition for Review from CTA and other quasi-judicial
agencies to the CA (Sec. 5 R 43)
14) Appeal by Certiorari Under R 45 from CA to SC (Sec. 1
R
45)
15) Petition for Appointment of a Guardian (Sec. 2 R 93)
16) Petition for Leave filed by Guardian to Sell or
Encumber Property of an Estate (Sec. 1 R 95)
17) Petition for Declaration of Competency of a Ward (Sec.
1 R 97)
18) Petition for Habeas Corpus (Sec. 3 R 102)
19) Petition for Change of Name (Sec. 2 R 103)
20) Petition for Voluntary Judicial Dissolution of a
Corporation (Sec. 1 R 105)
21) Petition for Cancellation or Correction of Entries in the
Civil Registrar (Sec. 1 R 108)
Q: Now, on the other hand, suppose a pleading does not require
verification but the lawyer had it verified. What is the effect?
A: There is no effect, just surplusage! A pleading in general is
not required to be verified. But I will verify it. Is there something
wrong with it? Technically, none. But if it is required to be
verified and you omit the verification, it is formally defective.
CERTIFICATION OF NON-FORUM SHOPPING
Sec. 5. Certification against forum shopping.--
The plaintiff or the principal party shall
certify under oath in the complaint or
other initiatory pleading asserting a claim
for relief, or in a sworn certification
annexed thereto and simultaneously filed
therewith:
a) that he has not theretofore commenced
any action or filed any claim involving the
same issues in any court, tribunal or
quasijudicial agency and, to the best of his
knowledge, no such other action or claim
is pending therein;
 b) if there is such other pending action or
claim, a complete statement of the status
thereof; and
c) if he should thereafter learn that the same
or similar action or claim has been filed or
pending, he shall report that fact within (5)
days therefrom the court wherein his
aforesaid complaint or initiatory pleading
has been filed.
Failure to comply with the foregoing
requirements shall not be curable by mere
amendment of the complaint or other
initiatory pleading but shall be cause for
the dismissal of the case without
prejudice, unless otherwise provided, upon
motion and after hearing. The submission
of a false certification or non-compliance
with any of the undertakings therein, shall
constitute indirect contempt of court,
without the prejudice to the corresponding
administrative and criminal actions. If the
acts of the party or his counsel clearly
constitute willful and deliberate forum
shopping, the same shall be ground for
summary dismissal with prejudice and
shall constitute direct contempt, as well as
a cause for administrative sanctions. (n)
The certification is mandatory under Sec. 5 of Rule 7 but not
jurisdictional. (Robert Development Corp. vs. Quitain)
This rule applies as well to special civil actions since a special
civil action is governed by the rules for ordinary civil actions,
subject to the specific rules prescribed for a special civil action.
Such specific rule appears under Rule 46, Sec. 3 which requires
that every petition for certiorari to be accompanied by a sworn
certification of non-forum shopping. (Wacnang vs. Comelec, GR
No. 178024 Oct. 17, 2008)
Meaning of Forum Shopping
There is forum shopping when, as a result of an adverse opinion
in one forum, a party seeks a favorable opinion, other than by
appeal or certiorari, in another. There can also be forum
shopping when a party institutes two or more suits in different
courts, either simultaneously or successively, in order to ask
the courts to rule on the same or related causes and/or to grant
the same or substantially the same reliefs on the same
supposition that one or the other court would make a favorable
disposition or increase a party’s chances of obtaining a
favorable decision or action. (Huibonhoa vs. Concepcion GR
153785, August 3, 2006; Heirs of Cesar Marasigan vs.
Marasigan, GR 156078 March 14, 2008)
It is an act of a party against whom an adverse judgment has
been rendered in one forum of seeking and possibly getting a
favorable opinion in another forum, other than by appeal or the
special civil action of certiorari, or the institution of two or more
actions or proceedings grounded on the same cause on the
supposition that one or the other court would make a favorable
disposition. (Sps. Carpio vs. Rural Bank of Sto. Tomas Batangas
GR 153171 May 4,
2006)
Rationale against forum shopping
The rationale against forum shopping is that a party should not
be allowed to pursue simultaneous remedies in two different
fora. Filing multiple petitions or complaints constitutes abuse of
court processes, which tends to degrade the administration of
justice, wreaks havoc upon orderly judicial procedure, and adds
to the congestion of the heavily burdened dockets of the court.
Thus, the rule proscribing forum shopping seeks to promote
candor and transparency before the courts to promote the
orderly administration of justice, prevent undue inconvenience
upon the other party, and save the precious time of the courts.
It also aims to prevent the embarrassing situation of two or
more courts or agencies rendering conflicting resolutions or
decisions upon the same issue (Huibonhoa vs. Concepcion,
supra).
How to determine existence of forum shopping
To determine whether a party violated the rule against forum
shopping, the most important question to ask is whether the
elements of litis pendentia are present or whether a final
judgment in one case will result to res judicata in another.
Otherwise stated, to determine forum shopping, the test is to
see whether in the two or more cases pending, there is (a)
identity of parties, (b) identity of rights or causes of action, and
(c) identity of reliefs sought (Huibonhoa vs. Concepcion)
What is pivotal in determining whether forum shopping exists or
not is the vexation caused the courts and parties-litigants by a
party who asks different courts and/or administrative agencies
to rule on the same or related causes and/or grant the same or
substantially the same reliefs, in the process creating possibility
of conflicting decisions being rendered by the different courts
and/or administrative agencies upon the same issues (Lim vs.
Vianzon GR 137187, August 3, 2006).
Who executes the certification?
It is the plaintiff or principal party who executes the certification
under oath. (Sec. 5). The certification must be executed by the
party, not the attorney (Damasco vs. NLRC 346 SCRA 714).
It is the petitioner and not the counsel who is in the best
position to know whether he or it actually filed or caused the
filing of a petition. A Certification signed by counsel is a
defective certification and is a valid cause for dismissal (Far
Eastern Shipping Company vs. CA 297 SCRA 30). This is the
general and prevailing rule.
Liberal interpretation of the rule
It has also been held that the rules on forum shopping, which
were precisely designed to promote and facilitate the orderly
administration of justice, should not be interpreted with such
absolute literalness as to subvert its own ultimate and
legitimate objective which is the goal of all rules of procedure –
that is, to achieve substantial justice as expeditiously as
possible (Great Southern Maritime Services Corp. vs. Acuna 452
SCRA 422). Hence, the rule is subject to the power of the SC to
suspend procedural rules and to lay down exceptions to the
same.
Examples:
• While a petition for certiorari is flawed where the
certification of non-forum shopping was signed only by
counsel and not by the party, this procedural lapse was
overlooked by the Court in the interest of justice (Sy Chin
vs. CA 345 SCRA 673). In another case, the fact that the
parties were abroad at a time when the petition was filed,
was considered a reasonable cause to exempt the parties
from compliance with the requirement that they personally
execute the certification against forum shopping (Hamilton
vs. Levy 344 SCRA 821). In De Guia vs. De Guia 356 SCRA
287, the SC went to the extent of invoking its power to
suspend the Rules by disregarding the absence of the
 certification against forum shopping in the interest of
justice.
• In Dar vs. Alonzo-Legato (339 SCRA 306) the Court ruled
that where the petitioners were sued jointly as “Mr. and
Mrs.” over a property in which they were alleged to have
common interest, the signing of the certification by one of
the petitioners was held to be a substantial compliance of
the rule. In a subsequent ruling in the case of Docena vs.
Lapesura (355 SCRA 658), where only the husband signed
the certificate against forum shopping in a petition
involving the conjugal residence of the spouses, the SC
considered the certification as having substantially
complied with the requirements.
• In Cavile vs. Heirs of Clarita Cavile (400 SCRA 255), a
similar ruling was made where the Court held that there
was substantial compliance with the Rules where only one
petitioner signed the certification against forum shopping
in behalf of all the other petitioners being all relatives and
coowners of the properties in dispute, and who shared a
common interest in them, had a common defense in the
complaint for partition, filed the petition collectively, and
raised only one argument to defend their rights over the
properties in question.
• In Bases Conversion Development Authority GR No.
144062, November 2, 2006, while only one petitioner
signed the verification and certification, it was held that
such fact is not fatal to the petition. The Court ruled that
the signature of a principal party satisfies the requirement
because under the Rules it is clear that the certification
may be signed by a principal party.
• In HLC Construction and Development Corp. vs. Emily
Homes Subdivision Homeowners Association 411 SCRA
504, the Court ruled that the signature of only one
petitioner substantially complied with the rules because all
the petitioners shared a common interest and invoked a
common cause of action or defense.
Lack of certification not cured by subsequent submission
In appeal by certiorari to the Supreme Court, the lack of
certification is generally not curable by the submission thereof
after the filing of the petition. Sec. 5, Rule 45 of the 1997 Rules
provides that failure of the petitioner to submit the required
documents that should accompany the petition, including the
certification, required in Sec. 4, Rule 45, shall be sufficient
ground for the dismissal thereof.
Exceptions
In certain exceptional circumstances, however, the Court has
allowed the belated filing of the certification. In all these cases,
there were special circumstances or compelling reasons that
justified the relaxation of the rule.
Lack of authority to sign certification
The same liberal construction applies to certifications against
forum shopping signed by the person on behalf of a corporation
which are unaccompanied by proof that said signatory is
authorized to file a petition on behalf of the corporation. A
liberal interpretation is given to the rule more so where the
petitioner did submit a certification against forum shopping, but
he failed only to show proof that the signatory was authorized to
do so. In several cases, (Shipside Incorporated vs. CA 404 SCRA
981; Ateneo de Naga University vs. Manalo 458 SCRA 325, etc)
the Court permitted the subsequent submission of proof of
authority to sign the certification against forum shopping.
Signing the Certification when the plaintiff is a juridical
person
A juridical entity, unlike a natural person, can only perform
physical acts through properly delegated individuals. The
certification against forum shopping where the plaintiff or a
principal party is a juridical entity, like a corporation, may be
executed by properly authorized persons. This person may be
the lawyer of the corporation. As long as he is duly authorized
by the corporation and has personal knowledge of the facts
required to be disclosed in the certification against forum
shopping, the certification may be signed by the authorized
lawyer (National Steel Corporation vs. CA 388 SCRA 85).
Authority to sign Certification of Non Forum Shopping
A board resolution purporting to authorize a person to sign
documents on behalf of the corporation must explicitly vest
such authority. The signing of verifications and certifications
against forum shopping is not integral to the act of filing; this
may not be deemed as necessarily included in an authorization
merely to file cases. (MCWD vs. Margarita A. Adala, GR No.
168914, July 4, 2007)
Pleadings requiring a certification
The certification against forum shopping is mandatory in filing a
complaint and other initiatory pleadings asserting a claim
(Sec.5) This initiatory pleadings include not only the 1. original
complaint but also 2.permissive counterclaim, 3. cross-claim, 4.
third (fourth)party complaint, 5. complaint in intervention, 6.
petition or any application in which a party asserts a claim for
relief. The rule does not require a certification against forum
shopping for a compulsory counterclaim because it cannot be
the subject of a separate and independent adjudication. It is
therefore, not an initiatory pleading (UST vs. Surla, 294 SCRA
382)
It bears stressing that the Rule distinctly provides that the
required certification against forum shopping is intended to
cover an initiatory pleading, meaning an incipient application of
a party asserting a claim for relief. The answer with a
counterclaim is a responsive pleading, filed merely to counter
petitioner’s complaint that initiates the civil action and is a
claim for relief that is derived only from, or is necessarily
connected with, the main action or complaint. It is not an
initiatory pleading (Sps. Carpio vs. Rural Bank of Sto. Tomas
Batangas, supra)
UST HOSPITAL vs. SURLA - 294 SCRA 382 [Aug. 17, 1998]
HELD: The certification of non-forum shopping applies only
to permissive counterclaims because there is no possibility
of forum shopping in compulsory counterclaims.
“The proviso in the second paragraph of Section 5, Rule 7, of
the 1997 Rules of Civil Procedure, i.e., that the violation of
the anti-forum shopping rule ‘shall not be curable by mere
amendment . . . but shall be cause for the dismissal of the
case without prejudice,’ being predicated on the
applicability of the need for a certification against forum
shopping, obviously does not include a claim which cannot
be independently set up.”
Effect of non-compliance
The failure to comply with the required certification is “not
curable by a mere amendment” and shall be a cause for the
dismissal of the action (Sec. 5).
The dismissal is not to be done by the court motu proprio
as the rule requires that it shall be done upon motion and
after hearing (Sec. 5)
The dismissal is, as a rule, “without prejudice” unless the order
provides otherwise (Sec. 5)
Q: What is the effect if a complaint or a third-party complaint is
filed in court without the certification on non-forum shopping?
A: That is a ground by itself for an automatic dismissal of the
complaint.
Now let’s go to the second paragraph.
Again, what is the possibility if the complaint is filed without the
certification against forum shopping? That is a ground by itself
for the dismissal of the complaint.
Q: Now, suppose I will amend the complaint because at first
there was no certification of non-forum shopping, therefore,
automatically the defect is cured. Now, is it automatic?
A: Look at the 2nd paragraph, it says, “failure to comply with
the foregoing requirements shall not be curable by mere
amendment of the complaint or other initiatory pleading, but
shall be cause for the dismissal of the case without prejudice.”
In other words, the complaint will be dismissed but you can still
re-file the case with the inclusion of the certification against
forum shopping.
“Unless otherwise provided, upon the motion after hearing” –
meaning, it is now discretionary on the court to determine
whether to dismiss or not to dismiss. Of course, it is a ground
for dismissal, but the court may say, “Okay, we will just amend
it. We will not dismiss.” But definitely, you cannot insist that
because I already amended, everything is cured. That is for the
court to determine whether to dismiss or not to dismiss. So,
mere amendment does not cure automatically the missing
certification. (I don’t agree because the unless otherwise
provided appears to qualify the dismissal without prejudice. In
other words, the court can order the dismissal with prejudice.)
I think this provision that mere amendment does not cure
automatically the missing certification for non-forum shopping
was taken by the SC from its ruling in the 1995 case of
KAVINTA vs. CASTILLO, JR. – 249 SCRA 604
HELD: “The mere submission of a certification under
Administrative Circular No. 04-94 after the filing of a
motion to dismiss on the ground of non-compliance thereof
does not ipso facto operate as a substantial compliance;
otherwise the Circular would lose its value or efficacy.”
As a matter of fact, if the certification is deliberately false there requirement within 5 days from notice. Failure to comply
are many other sanctions – contempt, possible administrative
actions against the lawyer or criminal case for perjury.
Failure to submit certification against forum shopping
and forum shopping are two separate grounds for
dismissal--
sanction and for contempt of court (Circular No. 10, July 24, 1985; Bar Matter No. 287,
September 26, 2000.
On November 12, 2002, the SC granted the request of the
Board of Governors of the IBP and the Sangguniang
Panlalawigan of Ilocos Norte to require all lawyers to indicate
their Roll of Attorneys Number in all papers and pleadings
filed in judicial and quasi-judicial bodies in addition to the
The failure to submit a certification against forum
shopping is a ground for dismissal, separate and
distinct from forum shopping as a ground for
dismissal. A complaint may be dismissed for forum
shopping even if there is a certification attached
and conversely, a complaint may be dismissed for
lack of the required certification even if the party
has not committed forum shopping. Compliance
with the certification against forum shopping is
separate from, and independent of, the avoidance
of forum shopping itself. (Juaban vs. Espina 548
SCRA 588, March 14, 2008).
No appeal from an order of dismissal
If a complaint is dismissed for failure to comply with
required certification, the plaintiff cannot appeal from such
order. This is because an order dismissing an action
without prejudice is not appealable. The remedy provided
for under Sec. 1 of Rule 41 is to avail of the appropriate
special civil action under Rule 65 (Sec. 1[g], Rule 41 as
amended, Rules of Court. Effect of willful and deliberate
forum shopping –
Pursuant to Sec. 5, it will result to a summary dismissal,
that is, without need of a motion to dismiss and hearing
and the dismissal is with prejudice. Effect of submission
of a false certification
It shall constitute:
1) indirect contempt
2) without prejudice to the corresponding administrative and
criminal sanctions (Sec.5)
Effect of non-compliance with the undertakings
It has the same effect as the submission of a false
certification (Sec.5), hence shall constitute indirect
contempt without prejudice to the corresponding
administrative and criminal sanctions (Sec. 5).
OTHER REQUIREMENTS
All pleadings, motions and papers filed in court by counsel
shall bear in addition to counsel’s current Professional Tax
Receipt Number (PTR), counsel’s current IBP official receipt
number indicating its date of issue. Pleadings motions and
papers which do not comply with this requirement may not
be acted upon by the court, without prejudice to whatever
disciplinary action the court may take against the erring
counsel who shall likewise be required to comply with the
with such requirement shall be a ground for further
disciplinary
previously required current PTR and IBP OR. The requirement is meant to protect the
public by making it easier to detect impostors who represent themselves as members
of the Bar.
Non-compliance has the same effect as failure to indicate counsel’s IBP Receipt
Number. This requirement is directed only to lawyers and is not to be construed as
precluding a
party who is not a lawyer from signing a pleading himself (Bar
Matter No. 1132, April 1, 2003)

All practicing lawyers are required to indicate in all pleadings filed before the courts or
quasi-judicial bodies, the number
and date of issue of their MCLE Certificate of Compliance or
Certificate of Exemption. Failure to disclose the information

would cause the dismissal of the case and the expunction of

the pleading from the records (Bar Matter No. 1922 En Banc

Resolution, June 3, 2008). Per En Banc Resolution of the Supre

Court dated September 2, 2008, the effectivity date of the implementation was moved from August
25, 2008 to January
1, 2009.

Rule 8 may be, omitting the statement of mere

MANNER OF MAKING ALLEGATIONS IN PLEADINGS
Sec. 1 In general – Every pleading shall
contain in a methodical and logical form, a
plain, concise and direct statement of the
ultimate facts on which the party pleading
relies for his claim or defense, as the case
evidentiary facts.
If a defense relied on is based on law, the
pertinent provisions thereof and their
applicability to him shall be clearly and
concisely stated.
Pleadings must only state the ultimate facts where one relies on
his defense or complaint. You must omit the statement of mere
evidentiary facts.
The ultimate facts refer to the essential facts of the claim. A fact
is essential if it cannot be stricken out without leaving the
statement of the cause of action insufficient (Ceroferr Realty
Corporation vs. CA 376 SCRA 144). The ultimate facts are the
important and substantial facts which form the basis of the
primary right of the plaintiff and which make up the wrongful
act or omission of the defendant. The ultimate facts do not refer
to the details of probative matter or to the particulars of
evidence by which the material elements are to be established.
They are the principal, determinate, constitutive facts, upon the
existence of which, the entire cause of action rests. (Tantuico,
Jr. vs. Republic, 204 SCRA 428)
Distinguish ultimate facts from evidentiary facts
ULTIMATE FACTS vs. EVIDENTIARY FACTS
Q: What are ultimate facts?
A: Ultimate facts are those which are essential to one’s cause of
action or defense.
Ultimate facts refer to those which directly form the basis of the
right sought to be enforced or the defense relied upon. If the
ultimate facts are not alleged, the cause of action will be
insufficient.
Q: How do you determine whether a fact is essential to your
cause of action or defense?
A: The test to determine whether the fact is essential to your
cause of action is: if the statement in the pleading cannot be
deleted because if you delete it, the statement of your cause of
action or defense become incomplete, a certain element of cause
of action disappears then it must be a statement of ultimate
fact.
Q: What are the essential elements of a cause of action?
A: The following:
1.) Statement of the right;
2.) Statement of the obligation; 3.)
Statement of the violation; and
4.) Statement of damage.
You analyze a complaint from the first to the last paragraph,
you find out whether the four are present.
So if the statement can be deleted and the cause of action is still
complete, then it is not a statement of ultimate fact. It is only a
statement of evidentiary fact.
Evidentiary Facts
Q: What are evidentiary facts?
A: Evidentiary facts are the facts which will prove the ultimate
facts. They should not be stated in the pleading. They should be
brought out during the trial. They are proper during the trial
but they have no place in your pleading.
Evidentiary facts refer to those which are necessary to prove the
ultimate fact or which furnish evidence of the existence of some
other facts.
In the law on Evidence, ultimate facts are called factum
probandum as distinguished from factum probans (evidentiary
facts).
EXAMPLE: In a land dispute, the question is: Who has been in
possession of the land for a long time? I claim I’m the one. So, I
will say, “plaintiff has been in possession of this land
continuously for the past 30 years.” That is a statement of
ultimate fact because that shows your right – your right over the
property – that you cannot be driven out.
Suppose the lawyer wants to impress the court that the
statement is true, the pleading describing continuous
possession for the past 30 years from 1967 to 1997. And
therefore, the lawyer will now prepare the complaint in this
manner:
Plaintiff has been in possession of the said
property continuously, openly for the past 30
years from 1967 to 1997 as may be borne out
by the following:
He entered the property in 1967. He cleared
the property by cutting the grass. In 1968, he
planted 20 coconut trees. In 1969, he planted
50 coconut trees. In 1970, he planted mango
trees. In 1971, he planted guava. He will recite
everything from 1967 to 1997.
The form is wrong because you are stating evidentiary facts.
So, what should be the correct pattern?
Plaintiff has been in continuous possession of the
property for 30 years from 1967 up to the present.
That is the ultimate fact.
Then, during the trial, you present the plaintiff and you ask the
plaintiff: Mr. Plaintiff, when did you occupy the property? –
“1967” – When you first occupied the property, describe it. –
“Ah, bagnot! I have to clean it. So I clean it in 1967.” – In 1968,
were you still there? – “Oh yes!” – What did you do in 1968? – “I
planted coconut trees.” – Did you pay taxes in 1968? – “Yes!” –
Where’s the receipt? – “Eto o!”
The evidentiary facts should be brought out in court not in the
pleadings, otherwise your pleading become kilometric. That is
what is meant by the phrase that you only state the ultimate
facts omitting the statement of evidentiary facts.
Another Example:
In a collection case you can just allege:
“The defendant borrowed money and then it fell due. I
made demands for him to pay, but despite
repeated demands he refused to pay.”
You do not have to state in your complaint that “when the
account fell due last November 5, I called him up by telephone.
He promised to pay in November 7 and called him again and he
promised to pay tomorrow…” Those are evidentiary facts which
can be brought forward during the trial.
Under Section 1, you state the ultimate facts on which you base
your claim or defense. How do you state the facts? Section 1
says that statement of ultimate facts must be stated in a
methodical and logical form and you must use plain, concise
and direct statements or language. The simpler the language,
the better. A pleading is not a vehicle for you to show your
mastery of the English language. The judge might throw away
your complaint for not using simple language.
How do you present the facts? In a methodical and logical form.
It is a matter of writing style. Every person has his style of
writing. Corollarily, every person expects you to write in a
methodical or logical form. We have said earlier that a pleading
actually tells a story. Plaintiff tells the court his story.
Defendant tells his story, too. Each presentation must be
methodical and logical.
What is the first test whether you style is methodical or logical?
The best exercise is your own answer in examinations. In a
problem, you answer and you try to argue why. You try to
present your answer in a clear manner. It must be methodical
and logical.
PRINCIPLE: Only ultimate facts should be alleged and not the
evidentiary facts.
Q: Apart from evidentiary facts, what are the other matters that
should not be stated in the pleading?
A: The following:
1.) Facts which are presumed by law;
2.) Conclusions of fact or law;
3.) Matters which are in the domain of judicial notice
need not be alleged.
FACTS WHICH ARE PRESUMED BY LAW
Presumptions under the law need not be alleged in a pleading.
When a fact is already presumed by law, there is no need to
make that allegation because your cause of action would still be
complete.
Example: Negligence in culpa contractual
Q: In a case of breach of contract against an operator of the
common carrier. Do you think it is necessary for the plaintiff to
allege that the driver acted negligently? Is an allegation that the
driver of the carrier acted with negligence required?
A: NO. There must be negligence, otherwise, there would be no
cause of action. However there is no need to allege it in the
complaint because under the Civil Code, whenever there is a
breach of contract of carriage, there is a presumption of
negligence on the part of carrier. It is not for the passenger to
prove that the common carrier is negligent. It is for the
common carrier to prove that it is not negligent.
HOWEVER, In culpa aquilana, or quasi-delict, where there is no
preexisting contract between the parties, the liability of the
defendant hinges on negligence. There must be allegation of
negligence. The defendant must be alleged to have acted
negligently to hold him liable otherwise, there is no cause of
action. It becomes an ultimate fact which should be alleged in
the pleading.
CONCLUSIONS OF FACT OR LAW
Conclusions of law or conclusions of fact must not be stated in
the pleading. A statement of fact is different from a conclusion
of fact or law.
For EXAMPLE, where plaintiff said that he is entitled to moral
damages or attorney’s fees. That is not a statement of fact but
your conclusion.
Statement of fact is to cite the basis why you are entitled – you
must state the reason why you are entitled. The statement of
the ultimate fact as distinguished from conclusion is explained
in the old case of
MATHAY vs. CONSOLIDATED BANK – 58 SCRA 559
HELD: “A bare allegation that one is entitled to something
is an allegation of a conclusion. Such allegation adds
nothing to the pleading, it being necessary to plead
specifically the facts upon which such conclusion is
founded.”
You must plead the facts upon which your conclusion is
founded. To say that you are entitled to something is not
actually a statement of fact but merely a conclusion of the
pleader. It adds nothing to the pleading.
For EXAMPLE:
The complaint alleges that the defendants are holding the
plaintiff’s property in Trust for the plaintiff without any
explanation of the facts from which the court could conclude
whether there is a trust or not. The SC in the case of MATHAY
said that that statement is merely a conclusion of the plaintiff.
You must state the basis of your statement that they are
holding your property in trust.
So a statement of law is not allowed although there is an
exception under the second paragraph of Section 1 which says
that “if a defense relied on is based on law, the pertinent
provisions thereof and their applicability to him shall be clearly
and concisely stated.” Sometimes a defendant when he files his
answer, it is purely based on law. He must cite the legal
provision in his answer and explain WHY it is applicable to him.
Test to Distinguish Conclusions of Law from Statement of
Facts
If from the facts in evidence the result can be reached by the
process of natural reasoning adopted in the investigation of
truth, it becomes an ultimate fact to be found as such.
If on the other hand resort must be had to artificial process of
the law in order to reach a final determination, the result is a
Conclusion of Law (herrera Vol. I)
ALLEGATION OF ALTERNATIVE CAUSES OF ACTION
OR
DEFENSES
Sec. 2. Alternative causes of action or
defenses. - A party may set forth two or
more statements of a claim or defense
alternatively or hypothetically, either in
one cause of action or defense or in
separate causes of action or defenses.
When two or more statements are made in
the alternative and one of them if made
independently would be sufficient, the
pleading is not made insufficient by the
insufficiency of one or more of the
alternative statements. (2)
The provision recognizes that the liability of the defendant may
possibly be based on either one of two possible causes of action.
The plaintiff, may for example, believe that the liability of the
carrier may be based either on a breach of contract of carriage
or on a quasi-delict, but he may not be certain which of the
causes of action would squarely fit the set of facts alleged in the
complaint, although he is certain that he is entitled to relief. He
may therefore, state his causes of action in the alternative. This
provision in effect, also relieves a party from being compelled to
choose only one cause of action.
Q: What happens if one cause of action is insufficient? Will it
cause the dismissal of the complaint?
A: No, the complaint will remain insofar as the sufficient cause
of action is stated. The insufficiency of one will not affect the
entire pleading if the other cause of action is insufficient.
EXAMPLE:
I read a case about a passenger who was about to
board a bus. Of course when you are a passenger
and you get hurt, that is culpa contractual. If you
are not a passenger and you get hurt due to the
negligence of the driver, that is culpa aquiliana. So
it depends whether there is a contract of carriage or
none.
In that case, the passenger was about to board a bus.
As a matter of fact, the left foot had already stepped
on the bus. The bus suddenly sped up. He fell. He
was injured. What is the basis against the carrier?
Is there a contract or none? There is because one foot
was already on it but others say there was no
contract yet. You don’t really know whether your
cause of action is culpa contractual or culpa
aquiliana. You want to claim damages but you are
not sure whether your case is based on culpa
contractual or culpa aquiliana. It’s either one of the
two. It sometimes happens.
Now, if I am the lawyer for the plaintiff and I am tortured to
make my choice, I may allege 2 possible alternative causes of
action. I will draft the complaint in such a way that I will show
to the court that my cause of action is either culpa contractual
or culpa aquilana. I will make sure that both allegations are
covered. You cannot be wrong because the law does not require
you to make a choice.
Pleading alternative causes of action normally leads to
inconsistent claims. For instance, the elements of a cause of
action based on a contractual theory are inconsistent with those
of a cause of action based on a quasi-delict. As previously
discussed, a suit based on a breach of contract of carriage for
example, does not require an allegation and proof of negligence
because it is not an element of a breach of contract suit (Calalas
vs. CA 332 SCRA356; FGU Insurance Corp. vs. GP Sarmiento
Trucking Corp. 386 SCRA 312). On the other hand, negligence
as a rule, is an essential element of a suit based on a quasi-
delict (Art. 2176, Civil Code).
Under Sec. 2, this situation is permissible as long as the
allegations pleaded within a particular cause of action are
consistent with the cause of action relied upon as an
alternative. Thus, if the alternative cause of action is a breach of
contract, the allegations therein must support the facts
constituting the breach of the contract.
Alternative Defenses
Q: You are the defendant. You are confronted with the same
problem. There is a complaint against you and you have 3
possible defenses. Am I obliged to make a choice immediately?
A: NO. The law allows the defendant to cite the 3 possible
defenses alternatively. Meaning, each is my defense or not.
No matter if your defenses are inconsistent Section 2, Rule 8
allows the defendant to plead his defenses hypothetically or
alternatively. They may be inconsistent with each other but
what is important is each defense is consistent in itself.
Meaning, each defense, when taken alone, is a good defense.
You look at them separately. Do not compare them.
For EXAMPLE:
Plaintiff files a case against a defendant to collect
an unpaid loan. The basic allegation is that the
defendant obtained a sum of money by way of
loan and never paid it. Here is defendant’s
answer:
a.) “That is not true. I never borrowed any
money from the plaintiff.” That is a
defense of denial.
b.) “Assuming that I received money from the
plaintiff, that money was not a loan but
plaintiff’s birthday gift to me.” In other
words, it was a donation.
c.) “Assuming that the money I received from
the plaintiff was really a loan. However,
such amount was completely paid.”
Defense of payment.
So, I have 3 defenses. How can you reconcile these 3 defenses?
They are inconsistent with each other but it should not be taken
against the defendant. What is important is that each defense
is consistent in itself. Look at them separately. That is also
called a “SHOTGUN ANSWER”.
The rule allowing alternative defenses is consistent with the
omnibus motion rule which requires that all motions attacking
a pleading shall include all objections then available, and all
objections not so included shall be deemed waived (Sec. 8, Rule
15)
However, during that trial, you have to choose among them
which you think is true based on evidence. The problem is that
you choose one but it turned out that a different defense would
be correct. You cannot use that defense anymore. There is a
prejudice because during the trial, I will choose among them
with the evidence I have. I can abandon the others. And that
is even better because you might confuse the plaintiff of what
really is your defense. Thus, a lawyer should not be afraid to
hypothetically or alternatively plead defenses which are
inconsistent with each other.
That is perfectly allowed as it is alternative and during trial the
pleader may show the best one rather than not stating it in the
pleading and during the trial you waive the best defense
because according to the next rule, Rule 9, defenses or
objections not pleaded in the answer are deemed waived.
Take note that you have to correlate this topic on the related
provisions we have already taken up:
For EXAMPLE:
 1.) Rule 2, Section 5 – where a party may, in one
pleading state in the alternative or otherwise,
as many causes of action;
2.) Rule 3, Section 6 – on permissive joinder of parties.
When may 2 persons or more be joined as
plaintiffs or defendants and how are they
joined? They are
joined jointly, severally, or alternatively; and
3.) Rule 3, Section 13 – on alternative defendants.
When
you are uncertain who is the real defendant, you
may join them alternatively although the relief
against one may be inconsistent with the other.
Remember these provisions because they are interrelated.
Thus, when you study the Rules, don’t limit yourself to a
particular provision. Look for other related provisions so you
may see the entire picture. That’s called co-relation – “You don’t
only see the tree but the entire forest.” This is very helpful in
the bar exam.
HOW ALLEGATIONS IN A PLEADING ARE MADE
Q: How do you make allegations or averments in a pleading?
Can you do it in a general manner or do you need to be specific?
How do you allege your ultimate facts? Is it in particular or
general terms?
A: It depends on what matters you are alleging in your
complaint – whether it is a condition precedent, capacity to sue
or be sued, fraud, mistake, malice, judgment, or official
document or act.
ALLEGATION OF A CONDITION PRECEDENT
Sec. 3. Conditions Precedent. - In any
pleading, a general averment of the
performance or occurrence of all
conditions precedent shall be sufficient. (3)
Common usage refers to conditions precedent as matters which
must be complied with before a cause of action arises. When a
claim is subject to a condition precedent, the compliance of the
same must be alleged in the pleading.
Remember, that one of the elements of a right of action is that
before you can go to court, you must comply with all the
conditions precedent.
Q: When you allege compliance with the conditions precedent, is
it necessary for you to be specific what are those conditions
precedent?
A: NO. Section 3 says that in every pleading, a general averment
for the performance of all conditions precedent shall be
sufficient. A general allegation will suffice.
Examples of conditions precedent:
(a) A tender of payment is required before making a
consignation (Art. 1256 Civil Code);
(b) Exhaustion of administrative remedies is required in
certain cases before resorting to judicial action (Lopez
vs. City of Manila, 303 SCRA 448; Dy vs. CA 304 SCRA
331);
(c) Prior resort to barangay conciliation proceedings is
necessary in certain cases (Book III, Title I, Chapter 7,
Local Government Code of 1991);
(d) Earnest efforts toward a compromise must be
undertaken when the suit is between members of the
same family and if no efforts were in fact made, the
case
must be dismissed (Art. 151 Family Code);
(e) Arbitration may be a condition precedent when the
contract between the parties provides for arbitration
first before recourse to judicial remedies.
The failure to comply with a condition precedent is an
independent ground for a motion to dismiss: that a condition
precedent for filing the claim has not been complied with (Sec.
1[j], Rule 16)
A: According to Section 3, a general averment will be sufficient.
You need not specifically allege compliance of conditions
precedent. Therefore, an averment of the performance or
occurrence of all conditions precedent may be made generally
and it shall be sufficient.
ALLEGATION OF CAPACITY TO SUE OR BE SUED
Sec. 4. Capacity - Facts showing the
capacity of a party to sue or to be sued or
the authority of a party to sue or to be
sued in a representative capacity or the
legal existence of an organized association
of persons that is made a party, must be
averred. A party desiring to raise an issue
as to the legal existence of any party or
the capacity of any party to sue or be
sued in a representative capacity, shall do
so by specific denial, which shall include
such supporting particulars as are
peculiarly within the pleader's knowledge.
(4)
When you file a case against somebody you must have capacity
to sue and defendant must have capacity to be sued.
Q: Is it necessary for me to say that plaintiff has capacity to
sue? And the defendant has capacity to be sued?
A: YES because Section 4 says you must show capacity to sue
and be sued. It means that capacity to sue and be sued must be
averred with particularity. A general statement of it is not
sufficient. As a matter of fact, that is the first paragraph of a
complaint: “Plaintiff, Juan dela Cruz, of legal age, single, a
resident of Davao City…” There is no presumption of capacity or
incapacity to sue.
You may say, “I am suing as guardian of the plaintiff.” That is a
representative party – to sue and be sued in a representative
capacity. Can you say, “I am suing as a guardian?” NO. Neither
can you say, “I am appointed as the guardian.”
Q: How should it be done?
A: “I am the court’s appointed guardian of the plaintiff minor
having been appointed guardian by the court in this case based
on an order.” You have to emphasize that the court appointed
you.
Section 4 says, “the legal existence of an organized association
of persons that is made a party...” It means that the defendant
is a corporation existing by virtue of the Philippine Corporation
Law. There is no presumption that you are corporation. That is
the reason why facts showing capacity to sue and be sued, etc.
must be averred with particularity.
There’s a case which you will study in Corporation Law whether
a foreign corporation can sue in Philippine court. Under the
law, it can sue provided it is licensed to do business in the
Philippines. The SC emphasized that if a foreign corporation is
suing somebody in Philippine courts, the complaint must
specifically allege that a foreign corporation is doing business in
the Philippines with a license to do. Otherwise, it cannot sue.
“A party desiring to raise an issue as to the
legal existence of any party or the
capacity of any party to sue or be sued in a
representative capacity, shall do so by
specific denial, which shall include such
supporting particulars as are peculiarly
within the pleader's knowledge…” (section
4, 2nd sentence)
EXAMPLE: You are the plaintiff corporation with juridical
capacity. I am the defendant. Suppose I will deny your
capacity to sue. I will deny that you are a corporation licensed
to do business in the Philippines. Now, the law requires me to
deny your legal capacity and I must state the reason or basis of
such denial – why you are not of legal age, why you are not a
corporation.
This is so because the law says that when you deny or when you
question the legal existence of a party or the capacity of any
party to sue and be sued, you shall do so by specific denial
which shall include such supporting particulars as are
peculiarly within the defendant’s knowledge. You cannot plead
a general statement that you deny. Your denial must be
particular. You must be more specific about what you are
denying.
ALLEGATION OF FRAUD OR MISTAKE
Sec. 5. Fraud, mistake, condition of the
mind.- In all averments of fraud or
mistake, the circumstances constituting
fraud or mistake must be stated with
particularity. Malice, intent, knowledge or
other condition of the mind of a person
may be averred generally.
(5a)
Fraud and mistake
EXAMPLE: In annulment of a contract, fraud is one ground.
Suppose the consent was secured through fraud and plaintiff
files a case that the defendant employed fraud in obtaining his
consent.
Q: Is this statement sufficient?
A: No, because the circumstances constituting fraud or mistake
must be stated with particularity. The complaint must state
how the fraud was committed. It must be described in detail
how the fraud took place.
Malice, Intent, knowledge or conditions of the mind
Q: In the second sentence, why is it that malice, intent, etc. may
be averred generally?
A: A general averment of malice or intent suffices because one
cannot describe or particularize what is in the mind of a party. I
cannot describe in detail the malice or the knowledge in your
mind. I can only say it in general terms. This is borne out of
human experience.
Fraud, on the other hand, is employed openly, by overt acts.
How you are deceived is not only in the mind. Those are
manifested by external acts. Therefore, one can describe how a
fraud was committed by the other party.
Sec. 6. Judgment. In pleading a judgment
or decision of a domestic or foreign court,
judicial or quasi-judicial tribunal, or of a
board or officer, it is sufficient to aver the
judgment or decision without setting
forth matter showing jurisdiction to
render it. (6) Sometimes a party invokes a
judgment of a court or cite a previous case
like res adjudicata to dismiss a case.
Q: Suppose you will ask the court to dismiss the case because
there was already judgment rendered by the court years ago
and you simply say, “There was a previous judgment.” Is this
sufficient?
A: YES because the law presumes that the judgment is valid.
And the presumption is that the court had jurisdiction. You do
not have to say that the court had jurisdiction over the subject
matter, issues, etc. when it tried the case years ago. So, it can
be averred generally.
Sec. 9. Official document or act. In pleading
an official document or official act, it is
sufficient to aver that the document was
issued or the act done in compliance with
law. (9)
One can just plead the existence of a document made by the
government. EXAMPLE: official letter of the President, or official
communication by a government agency. It is sufficient to aver
that the document was issued or an act done.
SUMMARY:
Q: What averment or allegations in pleadings may be done
GENERALLY?
A: The following:
1.) Rule 8, Section 3– Conditions precedent;
2.) Rule 8, Section 5, 2nd sentence – Conditions of the
mind;
3.) Rule 8, Section 6 – Judgment;
4.) Rule 8, Section 9 – Official document or act
Q: What averments must be done with PARTICULARITY?
A: The following:
1.) Rule 8, Section 4, first sentence – Capacity to sue
and be sued;
2.) Rule 8, Section 4, 2nd sentence – Legal existence of
any party to sue or be sued;
3.) Rule 8, Section 5, first sentence – Fraud or mistake
ACTIONABLE DOCUMENTS
 Sec. 7. Action or defense based on document. Signed: “A”
Whenever an action or defense is based Q: Using the above promissory note, how should the pleading be
upon a written instrument or document, worded?
the substance of such instrument or
document shall be set forth in the
A: Two ways of pleading of actionable document:
pleading, and the original or a copy thereof
shall be attached to the pleading as an
exhibit, which shall be deemed to be a part 1.) The substance shall be set forth in the pleading and the
of the pleading, or said copy may with like original or a copy thereof shall be attached to the
effect be set forth in the pleading. (7) pleading as an exhibit, which shall be deemed as part
Not every document that is needed in trial is actionable of the pleading. Party simply cites only important
parts of the document, then attached the document.
document. Q: What is an actionable document?
EXAMPLE:
COMPLAINT
A: An ACTIONABLE DOCUMENT is one which is the basis or
the foundation of the cause of action or defense and not 1. Plaintiff B is xxx of legal age xxx;
merely an evidence of the cause of action or defense. Defendant A is xxxgayxxxx;
(Araneta, Inc. vs. Lyric Film Exchange, 58 Phil. 736) It is the 2. Sometime in December 31, 1997,
very heart and soul of your cause of action or defense, not defendant A secured a loan from
merely an evidence thereof. plaintiff B for a sum of P1 million
payable not later than December
So a promissory note to collect an unpaid loan is not only an 31, 1998 with 2% interest per
evidence of your cause of action but is it is the very cause of annum. Copy of said Promissory
action or foundation of your cause of action. On the other hand, Note hereto attached as EXHIBIT
when I have a receipt, the receipt is not only evidence of your A;
defense but is the very foundation of your defense. If I would 3. The account is now overdue and
like to sue you to annul a written contract, the contract to be despite demands of defendant A
rescinded or annulled is the very cause of your action. still failed to pay B xxx.

So, the main features of the promissory note are recited in your
But in a collection case, if aside from promissory note I wrote
pleading – the date when the loan was secured, the amount, the
you several letters of demand to pay, such letters, while they are
interest, etc. But still you have to attach a copy of the
relevant to the collection case, do not serve as the foundation of
promissory note, either xerox copy or the original.
your cause of action, although they are also important.

2.) Said copy may with like effect be set forth in the
Q: What is the purpose of the distinction between actionable
pleading. Document is quoted verbatim.
and non-actionable document?

EXAMPLE:
A: If the document is not actionable, there is no need to follow
COMPLAINT
Section 7. If it is actionable, it must be pleaded in the manner
mentioned in Section 7. Also in Section 8, it is needed to know
how to contest the genuineness of the document. 1. Plaintiff B is xxx of legal age xxx;
Defendant A is xxxxxxx;
2. On Dec. 31, 1997 def. A secured a
Q: And how do you plead an actionable document under Section
loan from plaintiff B which is
covered by a promissory note
7? A: There are two (2) options: worded as follows:

PROMISSORY NOTE:
1.) The substance of such instrument or document, shall
be set forth in the pleading and the original or a
copy thereof shall be attached as an exhibit; or December 31, 1997
2.) The copy of the document may with like effect be
quoted in the pleading, in which case, there is no For value received, I promise to pay “B” P1 million not
need to attach the copy. later than one year from date with 2 percent per
annum.

In the first one, there is no need to copy it. Just mention the
substance or features of the promissory note. In the second
case, the entire document must be quoted in the pleading. Signed: “A”

EXAMPLE:
3. The account is now overdue and
PROMISSORY NOTE: despite demands of defendant A
still failed to pay B xxx.

December 31, 1997

For value received, I promise to pay “B”
P1 million not later than one year from
date with 2 percent per annum.
So, you copy the entire promissory note verbatim. There is no
need to attach a copy of the promissory note. That is the second
way.
Q: Suppose in the first way, the promissory note was not
attached. What will happen?
A: The party violates Rule 8, Section 7. The adverse party may
move to dismiss the complaint for violation of the rules, if such
document could not be secured.
If an actionable document is properly pleaded in your pleading
in the manner mentioned in Section 7, the adverse party is now
obliged to follow Section 8 if he wants to contest such
document.
Sec. 8. How to contest such documents. When
an action or defense is founded upon a written
instrument, copied in or attached to the
corresponding pleading as provided in the
preceding section, the genuineness and due
execution of the instrument shall be deemed
admitted unless the adverse party, under oath,
specifically denies them, and sets forth what he
claims to be the facts; but the requirement of an
oath does not apply when the adverse party does
not appear to be a party to the instrument or when
compliance with an order for an inspection of the
original instrument is refused. (8a) Q: Does every
pleading have to be under oath?
2.) If signed by another, it was signed for him and
with his authority;
Q: Pretty Maya told Papa Paul that her housemate
Sexy Regina wanted to borrow money from him.
Paul agreed. Maya signed the promissory note:
“Regina as principal, signed by Maya.” But
actually, Regina never ordered Maya to use her
(Regina’s) name. When the note fell due without
payment, Paul sued Regina. Regina denied agency
but failed to verify her answer. What is the effect?
A: Pretty Maya becomes agent of Sexy Regina. So,
the defense of unauthorized signature is
automatically out.
3.) At the time it was signed, it was in words and
figures exactly as set out in the pleading of the
party relying upon it;
Q: Mr. Quiachon sued Mr. Tiamzon to collect a
loan of P50,000 on a promissory note. Mr.
Tiamzon admitted liability but only to the amount
of P5,000. Mr. Tiamzon used falsification as a
defense but his answer was not verified. What is
the effect?

A: GENERAL RULE: NO.

A: Mr. Tiamzon admits the genuiness of the
promissory note – that it was really P50,000.
EXCEPTION: Except when the law requires it. Example: Section
8, Rule 8.

EXAMPLE: If the plaintiff sues you based on a promissory note

which is properly pleaded under Section 7 and you would like to
contest the genuineness and due execution of the note like
when the figure was altered to P20,000 instead of P1,000 only,
so there is falsification, then you must deny the genuiness and
due execution in your answer specifically and most importantly
your answer must be VERIFIED AND UNDER OATH.

To contest:

(a) You must specifically deny the genuineness and due

execution of the document under oath; and
(b) You set forth what you claim to be the facts.

If the denial is not verified and under oath, the genuineness and
due execution of the promissory note is deemed admitted.

Q: When you say “you have admitted the genuiness and due
execution of the document,” what are the specific facts that you
have deemed admitted?

A: The answer is found in the landmark case of HIBBERD vs.

RHODE (32 Phil. 476):

1.) The party whose signature it bears signed it;


4.) The document was delivered; and
5.) The formal requisites of law, such as seal,
acknowledgement (notarization) or revenue
which it lacks, are waived by it.
The SC said in HIBBERD that if you admit the genuineness and
due execution of the actionable document, defenses which are
inconsistent with genuineness and due execution are deemed
automatically waived. Meaning, any defense which denies the
genuineness or due execution of the document is deemed
automatically waived.
Q: What are the defenses which are no longer allowed once you
admit the genuineness and due execution of the actionable
document?
14.) release
15.) waiver
16.) former discharge in bankruptcy
stamp
Q: May the benefit of the admission of genuineness and due
execution of an actionable document be waived? If so, in what
instances?
A: YES. In the following cases, the implied admission is deemed
waived:
1.) Where the pleader presented witnesses to
prove genuiness and due execution and the
adversary proved, without objection, the
contrary. (Yu Chuck vs. Kong Li Po, 46 Phil.
608);

A: The following: 2.) Where the pleader fails to object to evidence

controverting the due execution. (Legarda Koh vs.
Ongsiaco, 36 Phil. 185)
1.) The signature appearing in the document is a
forgery;
2.) In case it was signed by an agent in behalf of In other words, the lawyer of the defendant does not remember
Section 8 and therefore the denial is improper. But the lawyer of
the corporation or partnership, or a principal,
the plaintiff did not also remember Section 8 that when there
the signature was unauthorized;
was evidence of forgery, he failed to object. So, the
3.) The corporation was not authorized under its
incompetence of the both lawyers cancel each other. That is
charter to sign the instrument; what happens if the lawyer does not know.
4.) The party charged signed it in some other
capacity than that alleged in the pleading;
and
5.) It was never delivered. (Hibberd vs. Rhode,
supra)
6.) The document was not in words and figures WHEN DENIAL NOT UNDER OATH STILL VALID
as set
out in the pleadings (Imperial Textile Mills vs. CA Q: When may a simple denial suffice? Meaning, what are the
183 SCRA 584) instances where the denial of the genuineness of the document,
though not under oath, is valid?
Q: Does it mean to say that when you admit impliedly the
genuineness and due execution of the actionable document, you A: Section 8 says, the requirement of an oath does not apply:
have no more defense?
1.) When the adverse party does not appear to be
A: NO. What are no longer available are defenses which are a party to the instrument;
inconsistent with your own admission of the genuineness and
due execution of the actionable document like forgery, because
EXAMPLE: Ms. Guadalope filed a case
you cannot admit that the document is genuine and at the same
against Ms. Castillo based on a contract
time allege that it is forged. According to the SC in HIBBERD,
you may still invoke defenses provided the defenses are NOT entered by them. But before Ms. Guadalope
inconsistent with your admission of the authenticity of the filed the case, Ms. Castillo died. So Ms.
document. Guadalope filed against the heirs. The heirs
realized that the signature of Ms. Castillo in
Q: What defenses may be interposed notwithstanding admission contract as forged. Even if the answer of the
of genuiness and due execution of an actionable document as heirs is not under oath, they can still prove
aforesaid? forgery because they are not party to the
instrument.
A: In the case of HIBBERD, the following:
2.) When compliance with an order for an
1.) payment; inspection of the original instrument is
2.) want or illegality of refused;
consideration;
3.) fraud; 3.) When the document to be denied is not
4.) mistake; classified as an actionable document but
5.) compromise; merely an evidentiary matter. This is because
6.) statute of limitation; when the document if not actionable, there is
7.) estoppel; no need to follow Section 7.
8.) duress;
9.) minority; and REPLY; GENERAL RULE: OPTIONAL;
10.) imbecility
11.) usury EXCEPTION: SECTION 8
12.) statute of frauds
13.) prescription
Normally, the person who is presenting the actionable document
is the plaintiff.
PROBLEM: But suppose it is the defendant who is invoking an
actionable document for his defense. He claims to have paid the
loan and have attached a copy of the RECEIPT to his answer.
The plaintiff looks at the document and realizes that his
signature in the receipt is forged.
Q: What should the plaintiff do?
A: Based on Section 8, the plaintiff must deny the genuineness
of the receipt specifically under oath
Q: In what pleading should the plaintiff file where he will deny
under oath the genuiness and due execution of the receipt?
A: Plaintiff should file a REPLY and it must be under oath. If he
will not file a reply, the receipt is impliedly admitted to be
genuine.
Q: But the plaintiff may argue that under Rule 6, Section 10 the
filing of a reply is optional. How do we reconcile it with Section
8?
A: Rule 6 is the general rule. Section 8 should prevail over Rule
6 because the former is a specific provision that applies only to
actionable document. It has been asked in the Bar:
Q: When is the filing of the reply compulsory?
A: When the defendant anchors his defense on an actionable
document and plaintiff will deny the genuineness and due
execution of such document.
SPECIFIC DENIAL
We will relate Section 10 with Section 5 of Rule 6:
Sec. 5. Defenses. - Defenses may either be
negative or affirmative.
a. A negative defense is the specific denial
of the material fact or facts alleged in
the pleading of the claimant essential
to his cause or causes of action. x x x
In an answer, defenses may either be negative or affirmative.
Q: Define negative defense.
A: Briefly, it is a defense of SPECIFIC DENIAL where the
defendant denies the statement in the complaint by stating the
facts and the reason/s on which his denial is based.
Q: How is a specific denial done?
A: Rule 8, Section 10:
Sec. 10. Specific denial. A defendant must
specify each material allegation of fact the
truth of which he does not admit and,
whenever practicable, shall set forth the
substance of the matters upon which he
relies to support his denial. Where a
defendant desires to deny only a part of an
averment, he shall specify so much of it as
is true and material and shall deny only
the remainder. Where a defendant is
without knowledge or information
sufficient to form a belief as to the truth
of a material averment made in the
complaint, he shall so state, and this shall
have the effect of a denial. (10a)
Purpose of specific denial
The purpose is to make the defendant disclose the
matters alleged in the complaint which he succinctly
intends to disprove at the trial, together with the matter
which he relied upon to support the denial. The parties
are compelled to lay their cards on the table (Aquintey
vs. Tibong, GR No. 166704, December 20, 2006)
Q: So what are the modes of specific denial?
A: Under Section 10, there are three (3) MODES OF SPECIFIC
DENIAL:
FIRST MODE: A defendant must specify each material
allegation of fact the truth of which he does not admit
and, whenever practicable, shall set forth the substance of
the matters upon which he relies to support his denial
Meaning, you deny the allegation in the complaint but you must
state the basis of your denial – that it is not true because this is
what is true. So you state your own side, your own version. The
purpose there is to lay your cards on the table to make it fair to
the other side.
Q: What happens if a denial violates this first mode? Meaning,
the pleader did not set forth the substance of the matters relied
upon to support his denial.
A: That is known as GENERAL DENIAL and it will have the
effect of automatically admitting the allegations in the
complaint.
Q: Suppose the pleader will say, “Defendant specifically denies
the allegations in paragraph 2,4,7…” without any further
support for the denial. Is the denial specific?
A: NO. A denial does not become specific simply because he
used the word ‘specific.’ (Cortes vs. Co Bun Kim, 90 Phil. 167)
What makes a denial specific is compliance with Section 10.
SECOND MODE: Where a defendant desires to deny only a
part of an averment, he shall specify so much of it as is
true and material and shall deny only the remainder.
Sometimes an allegation may consist of 2 or more parts.
Therefore the answer may admit part 1 but part 2 is denied. Or,
the substance of the allegation is actually admitted by the
qualification there is denied.
EXAMPLE: Plaintiff alleges that the “Defendant is in possession
of the property under litigation in bad faith.” Now, the defendant
may admit that the property is in his possession but he denies
the qualification in bad faith – possession is not in bad faith.
Based on that, the defendant should say, “Defendant admits
that portion of paragraph no. 2 that he is in possession of the
property in question; but denies that he is a possessor in bad
faith” or something to that effect.
THIRD MODE: Where a defendant is without knowledge or
information sufficient to form a belief as to the truth of a
material averment made in the complaint, he shall so
state, and this shall have the effect of a denial
Meaning, I am not in a position to admit or to deny because I
have no knowledge. How can I admit or deny something which I
do not know?
EXAMPLE: Plaintiff claims for moral damages because
Defendant destroyed his reputation. Defendant does not know
that Plaintiff had sleepless nights, wounded feelings, serious
anxiety, etc. Here, Defendant cannot admit or deny those.
I have read pleadings where the pleader would say, “Defendant
has no knowledge or information sufficient to form a belief as to
the truth of the allegation in paragraphs 6, 7, 8, 9… of the
complaint and therefore he denies the same.” Actually, there is
something wrong there. How can you deny something that you
have no knowledge of. Just state, “I have no knowledge.” Then
period! And is has the automatic effect of a denial.
However, the SC warned that he third mode of denial should be
done in good faith. If the fact alleged is such that it is within
your knowledge, it is impossible that it is not within your
knowledge, you cannot avail of the third mode of denial.
Otherwise, if you will avail of the third mode in bad faith, your
denial will be treated as an admission. That is what happened
in CAPITOL MOTORS vs. YABUT (32 SCRA 1).
In CAPITOL MOTORS, suppose I file a case against you,
“Defendant borrowed money from plaintiff in the sum of
P10,000 payable one year from said date.” And then you say, “I
have no knowledge or information…” There is something wrong
there. What you are trying to say there is “I do not know
whether I borrowed money from you or not.”
How can that be? It is either you borrowed money or you did
not! That is why the SC said in CAPITOL MOTORS, if you
borrowed money, you say so. And if you did not, deny it. And
then I will allege there, “The defendant have made partial
payments.” Then you will say, “I have no knowledge.” My golly!
You do not even know whether you paid me? In other words,
talagang evasive bah! You are trying to be clever and evasive.
And if you do that, all your denials will be treated as
admissions. That is the warning in the third mode.
Negative Pregnant
A negative pregnant does not qualify as a specific denial. It is
conceded to be actually an admission.
In a pleading, it is a negative implying also an affirmative and
which although is stated in a negative form really admits the
allegations to which it relates.
Example:
A complaint alleges:
“Plaintiff extended a loan to Defendant in the amount of
P500,000.00 on July 27, 2006 in Cebu City.”
The defendant in his Answer states:
“Defendant specifically denies that Plaintiff extended a loan to
Defendant in the amount of P500,000.00 on July 27, 2006 in
Cebu
City.”
The answer is a mere repetition of the allegations made in the
complaint. The answer is vague as to what it really denies. Is it
the existence of the loan that is denied? Is it the amount? The
date? The place?
The effect of this kind of denial is an admission.
When a specific denial must be coupled with an oath:
(a) A denial of an actionable document (Sec. 8); and
(b) A denial of allegations of usury in a complaint to
recover usurious interest (Sec. 11)
The allegations of usury which requires a specific denial
under oath are:
(a) Allegations of usury in a complaint (not allegations of
usury in the answer), and
(b) The complaint is filed to recover usurious interests
(Sec.
11, R 8)
Matters not deemed admitted by the failure to make a
specific denial:
a) The amount of unliquidated damages (Sec.11);
b) Conclusions in a pleading which do not have to be
denied at all because only ultimate facts need be
alleged in a pleading (Sec. 1 R 8);
c) Non-material averments or allegations are not deemed
admitted because only material allegations have to be
denied. (Sec. 11)
Sec. 11. Allegations not specifically denied
deemed admitted. Material averment in the
complaint, other than those as to the
amount of unliquidated damages, shall be
deemed admitted when not specifically
denied. Allegations of usury in a complaint
to recover usurious interest are deemed
admitted if not denied under oath. (1a, R9)
While the law says ‘material averment in the complaint,” this
rule extends to counterclaims, cross-claims and third-party
complaints. (Valdez vs. Paras, L-11474, May 13, 1959)
The reason for the rule on specific denial is that, if there is a
material averment in the complaint and was not specifically
denied, it is deemed admitted. However under Section 11, there
are averments in the complaint which are not deemed admitted
even when not specifically denied.
GENERAL RULE: Material averment in a complaint shall be
deemed admitted when not specifically denied.
EXCEPTION: Instances when averments in the complaint are
not deemed admitted even when not specifically denied:
1.) Amount of unliquidated damages;
2.) Immaterial averments (Worcester vs. Lorenzana, 56
O.G. 7932, Dec. 26, 1960)
3.) Evidentiary matters; because a party is only obliged
to aver ultimate facts; (Agaton vs. Perez,
L19548, Dec. 22, 1966)
4.) Conclusions of facts or law.
Let’s discuss the first exception – AMOUNT OF UNLIQUIDATED
DAMAGES is not deemed admitted even if not specifically
denied.
So if the damages are liquidated, they are deemed admitted.
Examples of unliquidated damages are moral and exemplary
damages. Or expenses which I incurred in the hospital. Those
are unliquidated damages. They are always subject to evidence.
You have to prove how much amount you are entitled to. That is
why they are not deemed admitted even if not specifically So, if your pleading contains scandalous or indecent matters,
denied. the lawyer who files it may be subjected to appropriate
disciplinary actions.
So if you are claiming P1 million damages for sleepless nights
or besmirched reputation, and I did not specifically denied Q: What if it is the reply is the one which contains scandalous
such claim, it does not mean that you are automatically matter?
entitled to P1 million. Hindi yan puwede. You have to present
evidence that you are really entitled to P1 million. Yaan! A: A motion to strike may still be filed by the defendant within
20 days after the reply.
On the other hand, an example of liquidated damages is an
obligation with a penal clause. For example in our contract, it is
stipulated that in case you cannot comply with your obligation,
you will pay me P1 million. So if you failed to specifically deny
it, then you are deemed to have admitted that I am entitled to
P1 million. There is no need for computation because the
amount is already in the contract beforehand. The contract
itself would show how much I am entitled.

Section 11 also says, “Allegations of usury in a complaint to

recover usurious interest are deemed admitted if not denied
under oath.” Usury means you charge interest above the legal
interest provided by the usury law. If you want to deny my
charge of usury, your answer must be under oath. So, this is
the second instance where a denial should be verified.

NOW, I wonder why this provision is here when as early as 1983

in the case of LIAM LAW vs. OLYMPIC SAW MILL (129 SCRA
439), that usury is no longer existing and the SC stated in that
case that the provision of the Rules of Court in usury are
deemed erased or superseded. Obviously, the SC forgot what it
said in the 1983. (Ulyanin!!)

Sec. 12. Striking out of pleading or matter

contained therein. Upon motion made by a
party before responding to a pleading or,
if no responsive pleading is permitted by
these Rules, upon motion made by a
party within twenty (20) days after the
service of the pleading upon him, or upon
the court's own initiative at any time, the
court may order any pleading to be
stricken out or that any sham or false,
redundant, immaterial, impertinent, or
scandalous matter be stricken out
therefrom. (5, R9) Rule 9

Before answering, the defendant can file a motion to strike out a
pleading or a portion of a pleading. Striking a pleading means
that the pleading will be deemed erased as if it was never filed.
Or if a portion of the pleading be ordered stricken out or
expunged where a pleading or a portion thereof is sham or false,
redundant, immaterial, impertinent, or a scandalous matter is
inserted in the pleading, is deemed erased. This is related to
Rule 7, Section 3, third paragraph:
RULE 7, Sec. 3. Signature and address. x x x x
An unsigned pleading produces no legal
effect. However, the court may, in its
discretion, allow such deficiency to be
remedied if it shall appear that the same
was due to mere inadvertence and not
intended for delay. Counsel who
deliberately files an unsigned pleading, or
signs a pleading in violation of this Rule,
or alleges scandalous or indecent matter
therein, or fails to promptly report to the
court a change of his address, shall be
subject to appropriate disciplinary action.
EFFECT OF FAILURE TO PLEAD
Section 1. Defenses and objections not
pleaded. Defenses and objections not
pleaded either in a motion to dismiss or in
the answer are deemed waived. However,
when it appears from the pleadings or the
evidence on record that the court has no
jurisdiction over the subject matter, that
there is another action pending between
the same parties for the same cause, or
that the action is barred by a prior
judgment or by statute of limitations, the
court shall dismiss the claim. (2a)
GENERAL RULE: Defenses or objections not pleaded in a
motion to dismiss or on answer are deemed waived. If you do
not plead your defense, the same is deemed waived. The court
has no jurisdiction over the issues.
EXAMPLE: In a collection case against you, you did not raise
the defense of payment in your answer. But during the trial, you
attempted to prove that the loan has already been paid, that
cannot be done because the defense of payment is deemed
waived because you did not raise it in your answer. In other
words, the court never acquired jurisdiction over the issue.
So, there is no such thing as a surprise defense because the
defense must be pleaded. If you want to surprise the plaintiff
during the trial by not raising your defense in your answer, you
will be the one who will be surprised because the court will not
allow you. When the parties go to court, the plaintiff already
knows what are the defenses. They are already in the answer.
EXCEPTIONS:
Q: What defenses or objections can be taken cognizance of by
the court despite the fact that they are not raised in the motion
to dismiss or answer?
A: Under Section 1, Rule 9, the following:
1.) That the court has no jurisdiction over the
subject matter;
2.) That there is another action pending between
the same parties for the same cause (litis
pendentia);
3.) That the action is barred by prior judgment
(res adjudicata); and
4.) That the action is barred by statute of
limitation
(prescription).
Take note that the exceptions can be raised at any time during
or after the trial, or even for the first time on appeal. In other
words, the court shall dismiss the claim if any of the foregoing
grounds appears from the pleadings or the evidence on record.
These defenses may be raised at any stage of the proceedings
even for the first time on appeal EXCEPT that lack of
jurisdiction over the subject matter may be barred by laches
(Tijam vs. Sibonghanoy GR No. L-21450, April 15, 1968).
Now, the traditional rule to remember notwithstanding the
SIBONGHANOY Doctrine, is that, when there is a defect in the
jurisdiction of the court over the subject matter, the defect can
be raised at any stage of the proceeding even for the first time
on appeal (Roxas vs. Raferty, 37 Phil. 957). This is because
everything is null and void. Jurisdiction over the subject matter
cannot be conferred by agreement between the parties, by
WAIVER, by silence of the defendant.
LITIS PENDENTIA. You file an another case while another
action is pending between the same parties for the same cause.
That is actually splitting a cause of action because there is
already an action and then you file another action. The action
can be dismissed on the ground that there is a pending action.
A pending action to annul a mortgage is not a bar to an action for
foreclosure of the same mortgage for the reason that, although
the parties are or may be the same, the rights asserted and the
relief prayed for in the two actions are dissimilar.
A plea of the pendency of a prior action (litis pendencia) is not
available unless the prior action is of such a character that, had a
judgment been rendered therein on the merits, such a judgment
would be conclusive between the parties and could be pleaded in
bar of the second action. The rule is applicable, between the
same parties, only when the judgment to be rendered in the
action first instituted will be such that, regardless of what party
is successful, it will amount to res judicator against the second
action (Hongkong Shanghai Bank v. Aldecoa and Co., GR No.
8437, March 23, 1915).
RES ADJUDICATA – There was already a prior final judgment
then you file another case regarding the same issue. That is also
splitting a cause of action.
PRESCRIPTION is not found in the old rule but is taken from
decided cases. Among which are the cases of
PNB vs. PEREZ (16 SCRA 279) & PEPSI COLA vs. GUANZON
(172 SCRA 571)
HELD: “The rule on waiver of defenses by failure to plead in
the answer or in a motion to dismiss does not apply when
the plaintiff’s own allegations in the complaint show clearly
that the action has prescribed in such a case the court may
motu
propio dismiss the case on the ground of prescription.”
Q: Can the court dismiss the action based on any of these
grounds without the filing of a motion to dismiss?
A: YES. It would seem so because the second sentence says,
“When it appears from the pleadings or the evidence on record
… the court shall dismiss the claim.” (This is an important
change)
Under the 1964 Rules, one of the grounds that you can raise at
any stage of the proceeding before judgment is failure to state a
cause of action, but it disappears under the new rules. Does it
mean to say that you cannot raise it anymore? NO. It can still
be raised because it can be taken care of by another rule – Rule
33 on Demurrer.
Sec. 2. Compulsory counterclaim, or
crossclaim, not set up barred. A compulsory
counterclaim, or a cross-claim, not set up
shall be barred. (4a)
See discussions on Rule 6, Sections 7 and 8 on counterclaim
and cross-claims, respectively.
RULE ON DEFAULT
Sec. 3. Default; declaration of. If the
defending party fails to answer within the
time allowed therefor, the court shall,
upon motion of the claiming party with
notice to the defending party, and proof of
such failure, declare the defending party
in default. Thereupon, the court shall
proceed to render judgment granting the
claimant such relief as his pleading may
warrant, unless the court in its discretion
requires the claimant to submit evidence.
Such reception of evidence may be
delegated to the clerk of court. (1a, R18)
xxxxxx
A defending party is declared in DEFAULT if he fails to answer
the complaint within the time allowed therefor. The rule on
answer is found in Rule 11. And under Rule 11 as a rule, you
have 15 days to file an answer counted from the time you are
furnished a copy of the complaint together with the summons
It is the failure of the defendant to answer within the proper
period, not his failure to appear nor failure to present evidence
which is the basis of a declaration of default.
It does not occur from the failure of the defendant to attend
either the pre-trial or the trial.
If the period to answer lapsed and there is no answer, the
plaintiff will move to declare the defendant in default on the
ground of failure to file an answer to the complaint. So, the
court will issue an order of default declaring you as a defaulted
defendant.
The defendant’s non-appearance in the hearing and the failure
to adduce evidence does not constitute default when an answer
has been filed within the reglementary period. The failure of the
defendant to attend the hearings for the presentation of the
evidence of the adverse party amounts not to a default, but to a
waiver of the defendant’s right to object to the evidence
presented during the hearing and to cross-examine the
witnesses presented. However, it would not amount to a waiver
of the defendant’s right to present evidence during the trial
dates scheduled for the reception of evidence for the defense. It
is error for the court to issue an order not denominated as an
order of default but provides for the application of the effects of
default as when the defendant who has filed an answer is not
allowed to present evidence because of her absence during the
presentation of evidence by the plaintiff (Monzon Spouses
Relova vs. Addio Properties, Inc. GR 1712827, September 17,
2008)
Requisites before a party may be declared in default:
1. The Court must have acquired jurisdiction over the
person of the defendant thru a valid service of
summons or voluntary appearance;
2. The defending party must have failed to file his answer
within the reglementary period or within the period
fixed by the court;
3. there must be a motion to declare the defendant in
default;
4. The defending party must be notified of the motion to
declare him in default (Sec. 3 R 9)
5. There must be a hearing of the motion to declare the
defendant in default; and
6. There must be proof of such failure to answer.
Where no defaults are allowed:
1. Annulment of marriage;
2. Declaration of nullity of marriage;
3. Legal Separation;
4. Special Civil Actions of certiorari, prohibition and mandamus
where comment instead of an answer is required to be filed;
and
5. Summary Procedure.
The required hearing is mandated by Sec. 4 of Rule 15 which
states:
“Sec. 4. Hearing of motion – Except for motions
which the court may act upon without prejudicing
the rights of the adverse party, every written
motion shall be set for hearing by the applicant.”
Failure to file an answer under the Rule on Summary
Procedure
Under this rule, the defendant is not supposed to be declared in
default. Instead the court motu proprio, or on motion of the
plaintiff, shall render judgment (not to declare the defendant in
default) as may be warranted by the facts alleged in the
complaint and limited to what is prayed for (Sec. 6, II, 1991Rule
on Summary Procedure). This represents a principal distinction
between default in regular civil proceedings and the rule on
summary procedure.
Also, under the Rule on Summary Procedure, the plaintiff is
prohibited from filing a motion to declare the defendant in
default (Sec. 19[h], 1991 Rule on Summary Procedure). This is
another significant departure from the regular rule.
Effect of a declaration/order of default
1. The party declared in default loses his standing in
court. The loss of such standing prevents him from
taking part in the trial (Sec. 3[a], Rule 9);
2. While the defendant can no longer take part in the
trial, he is nevertheless entitled to notices of
subsequent proceedings (Sec. 3[a], Rule 9)/. It is
submitted that he may participate in the trial, not as a
party but as a witness (Riano).
3. A declaration of default is not an admission of the
truth or the validity of the plaintiff’s claims (Monarch
Insurance vs. CA 333 SCRA 7 [2000]; Vlason
Enterprises Corp. vs. CA 310 SCRA 26).
Take note that the word ‘defending’ party applies not only to the
original defendant but even to the cross-defendant or defendant
in a counterclaim.
Action of the court after the declaration/order of default
It can do either of the following:
1. To proceed to render judgment, or
2. To require the plaintiff to present his evidence ex
parte.
Now, “with NOTICE to the defending party” is a new one. You
must furnish a copy to the defending party of your motion to
order the defendant in default which abrogates previous rulings.
Q: Suppose the defendant filed an answer but during the trial,
he failed to appear. May he be declared in default?
A: NO, because the ground for default is failure to file an
answer. The correct procedure is for the trial to proceed without
him. (Go Changjo vs. Roldan Sy-Changjo, 18 Phil. 405) That is
what you call EX-PARTE reception of evidence. Only one side
will be heard.
BAR QUESTION: If the defendant is declared in default for
failure to file an answer is he deemed to have admitted the
allegations in the complaint to be true and correct?
A: YES, because the law NOW says, “the court shall proceed to
render judgment granting such claimant such relief as his
pleading may warrant.” The reception of plaintiff’s evidence is
already dispensed with. That is the GENERAL RULE. That is the
same as the summary rules and judgment on the pleadings and
the court can grant the relief without presentation of evidence.
HOWEVER under Section 3, it is discretionary upon the court to
require the claimant to submit evidence. EX-PARTE
RECEPTION of evidence is OPTIONAL for the court. And such
reception of evidence may be delegated to the clerk of court.
This is related to Section 9, Rule 30:
Rule 30, Sec. 9. Judge to receive evidence; delegation
to clerk of court. The judge of the court where the
case is pending shall personally receive the
evidence to be adduced by the parties. However, in
default or ex parte hearings, and in any case where
the parties agree in writing, the court may
delegate the reception of evidence to its clerk of
court who is a member of the bar. The clerk of
court shall have no power to rule on objections to
any question or to the admission of exhibits, which
objections shall be resolved by the court upon
submission of his report and the transcripts within
ten (10) days from termination of the hearing. (n)
The reception of evidence maybe delegated to the clerk of court
but the clerk of court must be a lawyer, that is the condition. So
if he is not a member of the bar, he is not authorized to conduct
or hear an ex-parte reception of evidence.
SUMMARY: Steps when the defendant fails to file an answer
within the time allowed:
1. Motion to declare defendant in default;
2. Declaration or Order of default; and
3. Rendition of Judgment by Default or judgment based
on the complaint of the plaintiff UNLESS court
requires the claimant to submit evidence (ex-parte
presentation
of plaintiff’s evidence)
However, when should the court dispense with the ex-parte
presentation of evidence and when should it require the
claimant to submit evidence being discretionary?
According to Inigo, in cases which are simple, presentation of
evidence ex-parte can be dispensed with like collection cases.
But in controversial cases, like recovery of a piece of land the
judge ought not automatically decide in your favor simply
because of failure to answer by the defendant. The judge may
still want to hear plaintiff’s evidence.
Q: If a defendant files an answer but did not furnish a copy of
the answer to the plaintiff, can the plaintiff move to declare the
defendant in default?
A: YES, because the answer is deemed to have not been legally
filed. It was not in accordance with the Rules of Court.
(Gonzales vs. Francisco, 49 Phil. 47) So the defendant must
furnish the plaintiff a copy of the answer because in the case of
RAMIREZ vs. COURT OF APPEALS – 187 SCRA 153
HELD: “The failure to furnish a copy of the answer to the
adverse party in itself is sufficient or valid basis for
defendant’s default.”
Effect of pendency of a Motion to Dismiss or for Bill of
Particulars
Q: May a defendant be declared in default while a motion to
dismiss (Rule 16) or a motion for bill of particulars (Rule 12)
remains pending and undisposed of?
A: NO, because under the filing of a motion to dismiss or motion
for bill of particulars interrupts the running of the period to
answer. It will run again from the moment he receives the order
denying his motion to dismiss or for bill of particulars.
(Hernandez vs. Clapis, 87 Phil. 437)
But said motions must follow the requirements otherwise they
will be treated as mere scraps of paper and will not toll the
running of the period to answer.
In the case of
DEL CASTILLO vs. AGUINALDO – 212 SCRA 169 [1992]
FACTS: The defendant filed a motion to dismiss under Rule
16 but his motion to dismiss did not contain notice of time
and place of hearing and the motion was denied. Can he file
an answer after filing the motion to dismiss?
HELD: NO. He can be ordered in default. The motion is a
useless piece of paper with no legal effect.
“Any motion that does not comply with Rule 16
should not be accepted for filing and if filed, is
not entitled to judicial cognizance and does not
affect any reglementary period. Not having
complied with the rules, the motion to dismiss
filed by the defendant did not stay the running of
the reglementary period to file an answer.”
GOLDEN COUNTRY FARM, INC. vs. SANVAR DEV’T CORP. –
214 SCRA 295 [1992]
FACTS: Because of the filing of the motion to dismiss is 15
days, the defendant filed a motion to dismiss on the 8th
day. It was denied. So there is still 7 days to file an answer.
On the 15th day, instead of filing an answer, he filed a
motion for reconsideration but such motion was also
denied. Can he still file an answer?
HELD: NO MORE. The filing of the motion to dismiss
interrupted the period to file an answer. When you receive
an order, you still have the balance to file your answer. And
you did not file an answer instead, you file a motion for
reconsideration. You took the risk. So defendant’s motion
for reconsideration which merely reiterated his ground in
the motion to dismiss did not stay the running of the period
to file an answer.
Answer filed out of time may be admitted
Where there is no declaration of default, answer may be
admitted even if filed out of time. Where answer has been filed,
there can be no declaration of default anymore. (Guillerma S.
Sablas vs. Esterlita
S. Sablas and Rodulfo Sablas, GR No. 144568, July 3, 2007)
(a) Effect of order of default. - A party in
default shall be entitled to notice of
subsequent proceedings but not to take
part in the trial. (2a, R18)
So if you are declared in default, you cannot take part in the
trial. You lose your standing in court, you cannot cross-examine
the witness of the plaintiff assuming there is a reception of
evidence. You cannot object to his evidence. You cannot even
present your own evidence when you are in default.
Right of a party in default
He is entitled to notice of:
1. Motion to declare him in default;
2. Order declaring him in default;
3. Subsequent proceedings; and
4. Service of final orders and judgments.
Note: A defendant declared in default cannot take part in the
trial, but he cannot be disqualified from testifying as a witness
in favor of non-defaulting defendants (Cavile vs. Florendo GR
No. 73039, Oct. 9, 1987)
If the defendant was declared in default upon an original
complaint, the filing of the amended complaint results in the
withdrawal of the original complaint, hence, the defendant is
entitled to file an answer to the amended complaint as to which
he was not in default.
Judicial discretion to admit answer filed out of time
It is within the sound discretion of the trial court to permit the
defendant to file his answer and to be heard on the merits after
the reglementary period for filing the answer expires. The Rules
of Court provides for discretion on the part of the trial court not
only to extend the time for filing an answer but also to allow an
answer to be filed after the reglementary period. It is not correct
to say that a trial court has no recourse but to declare a
defending party in default when he fails to file an answer within
the required period. In fact, the rule is that the answer should
be admitted where it is filed before a defending party is declared
in default and no prejudice is caused to the other party and that
there is no showing that the defendant intends to delay the case
(Sablas vs. Sablas GR 144568, July 3, 2007) The hornbook rule
is that default judgments are generally disfavored (Paramount
Insurance Corp., vs. A.C. Ordonez Corporation, GR No. 175109,
August 6, 2008).
Current Judicial Trend on Default
The current judicial trend is to avoid defaults and thus, courts
are enjoined to be liberal in setting aside orders of default.
(Ampeloquio vs. CA 333 SCRA 465
The issuance of orders of default should be the exception rather
than the rule and to be allowed only in clear cases of obstinate
refusal by the defendant to comply with the orders of the trial
court (Lorbes vs. CA GR 139884 February 15, 2001) because
suits should as much as possible, be decided on the merits and
not on technicalities (Samartino vs. Raon GR 131482 July 3,
2002). Thus, in practice, an answer under oath containing the
defenses of the defendant, may under the rules on liberal
interpretation, be deemed as equivalent of an affidavit of merit.
The policy of the law is to have every litigant’s case tried on the
merits as much as possible. Hence, judgments by default are
frowned upon. A case is best decided when all contending
parties are able to ventilate their respective claims, present their
arguments and adduce evidence in support thereof. (Sablas vs.
Sablas GR 144568 July 3, 2007).
HOW TO LIFT ORDER OF DEFAULT
(b) Relief from order of default. - A party
declared in default may at any time after
notice thereof and before judgment file a
motion under oath to set aside the order
of default upon proper showing that his
failure to answer was due to fraud,
accident, mistake or excusable negligence
and that he has a meritorious defense. In
such case, the order of default may be set
aside on such terms and conditions as the
judge may
impose in the interest of justice. (3a, R18)
Q: What is the remedy of a defendant who has been declared in
default?
A: One remedy under Section 3 paragraph [b] is that, provided
there is still no default judgment, he can still file a motion to set
aside the order of default upon a proper showing that his failure
to answer was due to F.A.M.E. (Fraud, Accident, Mistake, or
Excusable negligence) and that he has a meritorious defense.
[The discussions on FAME is in Rule 37 – New Trial or
Reconsideration]
Meaning, even if you are a victim of FAME, if you have no
meritorious defense, the court will not lift the order of default.
Upon proof, the court will set aside or lift the order of default
and will give the defendant an opportunity to answer, where he
will plead his supposed meritorious defenses. In effect, he
regains his standing in court.
Q: When can the defendant avail of this remedy?
A: He may file a motion to set aside the order of default at any
time after notice thereof and before judgment.
SUMMARY: Steps the defendant should take to set aside the
order of default:
1. File a motion to lift or set aside the order of default.
The motion must be verified and under oath;
2. He must explain why he failed to file an answer due to
FAME; and
3. He must also show that he has a meritorious defense.
In such a case, the order of default may be set aside on such
terms and conditions as the judge may impose in the interest of
justice (Sec. 3b)
Remedies of a defending party declared in default:
(1) Remedy after notice of order and before judgment –
The defendant must file a motion under oath to set
aside the order of default and show that
a. the failure to answer was due to fraud,
accident, mistake or excusable negligence
(FAMEN) and that
b. the defendant has a meritorious defense, i.e.,
there must be an affidavit of merit (Sec. 3[b],
Rule 9); Villareal vs. CA 295 SCRA 511;
Republic vs. Sandiganbayan GR No. 148154,
December 17, 2007; Republic vs.
Sandiganbayan, 540 SCRA 431)
(2) Remedy after judgment and before judgment becomes
final and executor – The defendant may file a motion
for new trial under Rule 37. He may also appeal from
the judgment as being contrary to the evidence or the
law (Talsan Enterprises, Inc. vs. Baliwag Transit, Inc.
310
 SCRA 156; Lina vs. CA 135 SCRA 637)
(3) Remedy after the judgment becomes final and
executory – The defendant may file a petition for relief
from judgment under Rule 38 (Balangcad vs. Justices
of the CA GR No. 83888, February 12, 1992; Republic
vs.
Sandiganbayan [supra])
(4) Where the defendant has however, been wrongly or
improvidently declared in default, the court can be
considered to have acted with grave abuse of discretion
amounting to lack of jurisdiction and when the lack of
jurisdiction is patent in the face of the judgment or
from the judicial records, he may avail of the special
civil action of certiorari under Rule 65 (Balangcad vs.
Justices, supra)
Implied Lifting of the Order of Default
“While it is true that there was no positive act on the part of the
court to lift the default order because there was no motion nor
order to that effect, the anti-graft court’s act of granting
respondent the opportunity to file a responsive pleading meant
the lifting of the default order on terms the court deemed proper
in the interest of justice. It was the operative act lifting the
default order and thereby reinstating the position of the original
defendant whom respondent is representing, founded on the
court’s discretionary power to set aside orders of default.
Flow Chart of Remedies from Judgment by Default
Judgment by default
Motion for New Trial or Reconsideration at any time after service
of judgment by default and within 15 (30) days therefrom
Failure to file Motion for New Trial/Reconsideration or Denial of
said
Motion
Perfect Appeal from said judgment by default within the balance
of said 15 (30) day period
Failure to Appeal without defendant's fault
Petition for Relief from Judgment within 60 days from notice of
judgment but within 6 months from entry thereof
Annulment of Judgment under R 47
PARTIAL DEFAULT
(c) Effect of partial default. - When a
pleading asserting a claim states a
common cause of action against several
defending parties, some of whom answer
and the others fail to do so, the court
shall try the case against all upon the
answers thus filed and render judgment
upon the evidence presented. (4a, R18)
This presupposes that there are two or more defendants. Say,
one or some of the defendants made an answer and the others
did not. So, one or some of the defendants were declared in
default, the others were not.
EXAMPLE: Gary sued Bentong and Bayani. Bentong filed an
answer. Bayani did not. Bayani was declared in default but
there can be no judgment against Bayani in the meantime
because under paragraph [c], the case will go to trial based on
the answer of Bentong. The case will be tried against both
Bentong and Bayani based on the answer of Bentong.
The principle here is that, the answer filed by the answering
defendant will automatically benefit the non-answering
defendant. The defense of Bentong will also be Bayani’s
defense. Anyway there is a common or identical cause of
action.
Effect of partial default
In all instances where a common cause of action is alleged
against several defendants, some of whom answer and the
others do not, the latter or those in default acquire a vested
right not only to own the defenses interposed in the answer of
their co-defendant or codefendants not in default but also to
expect a result of the litigation totally common with them in
kind and in amount whether favorable or unfavorable (Remigia
Grageda, et al., vs. Hon. Nimfa Gomez and Haudiny Grageda,
GR No. 169536, Sept. 21, 2007).
The best example would be a promissory note signed by both
Bentong and Bayani and they bound themselves solidarily. Both
of them were sued. Bentong answered while Bayani did not,
hence he is in default. Can there be a default judgment against
Bayani? NO, there will still be a trial based on the answer of
Bentong. In effect, Bentong will defend not only himself but also
Bayani.
Q: Suppose during the trial, Bentong proved that the obligation
has been extinguished, which is also applicable to Bayani, and
the complaint is dismissed, what is the effect?
A: Both Bentong and Bayani will win the case. So Bayani will be
benefited by the answer of his co-defendant Bentong. Hence,
there is still a possibility that a defaulted defendant can win
based on our example.
On the other hand it is absurd if the answer of Bentong will not
benefit the defaulting defendant.
EXAMPLE: Gary filed a case against Bentong and Bayani based
on a promissory note on a loan secured by both, and Bayani
defaulted. Bentong answered alleging payment. Suppose,
Bentong proved such defense, the effect is both Bentong and
Bayani are absolved. If you say that Bayani should lose because
the answer of Bentong will not benefit Bayani, there will be two
conflicting decisions: “Bayani is in default and thus, should pay
the loan; and there is no more loan as far as Bentong is
concerned.” Do you mean a loan is paid and at the same time
unpaid? That’s absurd!
NOTE: that to apply the principle, there must be a common
cause of action. If there is no common cause of action, while
there may be a trial, the answer of Bentong is only for him. After
the trial, Bentong might be absolved from liability but the
defaulting defendant Bayani will be held liable because
Bentong’s answer does not cover Bayani. That is when there is
no common cause of action. In the case of
CO vs. ACOSTA (134 SCRA 185 [1985]) reiterating the case of
LIM TANHU vs. RAMOLETE (66 SCRA 425)
FACTS: Bentong and Bayani were (solidary debtors) sued by
Gary for a loan evidenced by a promissory note. Bentong
filed an answer but Bayani defaulted. The case was tried
based on Bentong’s answer. Gary move to drop Bentong
from the case but retained Bayani, the defaulted defendant
so that Gary can secure an immediate judgment.
ISSUE: Is the motion of Gary proper?
HELD: NO. When there is a common cause against two or
more defendants, if you drop the case against one, you drop
the case against all. Selection is not allowed. To drop
Bentong means that the cause of action against him is
weak. Why should one drop somebody if a case against
such person is meritorious? If such is the fact, necessarily
the cause of action against the other is also weak the fact
there is actually a common cause of action.
However, the ruling in ACOSTA should not be confused with the
ruling in
IMSON vs. CA [1996 BAR] - 239 SCRA 58 [1994]
FACTS: Imson was driving a Toyota Corolla when he was
bumped by a Hino Truck causing injury to Imson and
totally wreaking his car. So he filed an action for damages
against several defendants. He impleaded all of them – the
driver, the bus company owner and the insurance
company. The insurance company filed an answer but the
owner and the driver did not. So both the owner and the
driver were declared in default.
Subsequently, lmson and the insurance company entered
into a compromise agreement wherein the latter paid him
P70,000 which was its total liability under the insurance
contract but constituted only a part of the total claim.
So when the case (between Imson and the insurance
company) was eventually dismissed because of the
compromise agreement, the bus company owner also
moved to dismiss the case against him and the driver,
arguing that since they are all indispensable parties under
a common cause of action, the dismissal of the case against
the insurance company should likewise result to the
dismissal of the case against them citing the case of
ACOSTA and RAMOLETE.
ISSUE #1: Is there a common cause of action among the
three of them?
HELD: The owner is wrong. There is NO common cause of
action. The cause of action against the driver is based on
quasi-delict under Article 2178 of the Civil Code. The
liability against the owner is also based on quasi-delict but
on another provision of the Civil Code – Article 2180 (the
liability of the employer for the delict or wrong of the
employee) So, the liability of the owner and the driver is
based on quasi -delict but under separate provisions of the
Civil Code.
Now, the cause of action against the insurance company is
not based on quasi-delict but based on contract because he
seeks to recover liability from the insurance company based
on the third-party liability clause of the insurance contract
with the company.
So, there is no common cause of action among them.
ISSUE #2: Is the insurance company an indispensable
party? Because if it is so and he is removed from the case,
the case cannot proceed without him.
HELD: NO. The insurance company is not an indispensable
party.
“It is true that all of Imson’s claims in civil case is premised
on the wrong committed by defendant truck driver.
Concededly, the truck driver is an indispensable party to
the suit. The other defendants, however, cannot be
categorized as indispensable parties. They are merely
necessary parties to the case. It is easy to see that if any of
them had been impleaded as defendant (meaning, the
insurance company or the owner was impleaded), the case
would still proceed without
prejudicing the party not impleaded.”
“Thus, if petitioner did not sue the insurance company, the
omission would not cause the dismissal of the suit against
the other defendants. Even without the insurer, the trial
court would not lose its competency to act completely and
validly on the damage suit. The insurer, clearly, is not an
indispensable party.” It is a necessary party.
(d) Extent of relief to be awarded. - A
judgment rendered against a party in
default shall not exceed the amount or be
different in kind from that prayed for nor
award unliquidated damages. (5a, R18)
This is what we call LIMITATIONS on a default judgment:
1) The default judgment should not exceed the amount
prayed for in the complaint;
2) The default judgment should not be different in kind
from that prayed for in the complaint;
3) The default judgment should not award unliquidated
damages.
Extent of relief in a judgment by default
If the complaint seeks to recover P1 million but the evidence of
the plaintiff shows a right to recover P1.5 million, the court has
no authority to grant the latter amount despite the evidence.
This is because under the Rules, “A judgment rendered against
a party in default shall not exceed the amount or be different in
kind from that prayed for nor award unliquidated damages”
(Sec. 3[d]; Vlason vs. CA 310 SCRA 26)
Q: In the complaint, the claim is P300,000. The defendant
defaulted. The court required the plaintiff to present his
evidence and during the trial, the latter proved P500,000 total
claim. Can the court award P500,000 claim as proved?
A: NO. It should only be P300,000 as prayed for in the
complaint.
Q: Suppose during the trial, only P200,000 was proved. What
should be the amount of the default judgment?
A: Only P200,000 as proved because it did not exceed the
amount prayed for in the complaint.
Therefore, the rule is, the default judgement cannot exceed the
amount prayed for in the complaint although it may be less
than it.
FUNDAMENTAL REASON ON THE RULE ON DEFAULT
What is the reason behind this? You have to know the
philosophy on default to understand the reason behind
paragraph [d]. Default means the defendant failed to file an
answer despite the fact that he was properly summoned.
Q: If a defendant failed to file an answer, what may be the
reasons behind that? Why did he not file an answer?
A: In the case of LIM TOCO vs. GO FAY, (80 Phil 166), there are
two (2) possible reasons:
1. Defendant deliberately did not answer because he
believed that he had no good defense, and that the
claim is fair. And if he will make an answer, still he
will not win
and would just incur expenses;
2. He had a meritorious defense and he wanted to answer
but for one reason or another beyond his control, he
failed to file his answer.
Q: In the second possibility – the defendant had a defense and
wanted to file an answer but failed to file an answer, what is the
remedy of such defendant?
A: It is paragraph [b] – file a motion to lift the order of default
and state the reasons beyond one’s control – fraud, mistake,
accident, or excusable negligence (FAME) and that there is a
meritorious defense.
Now suppose he did not answer because he thinks the claim is
fair and so he will just pay. Then, the contingency is paragraph
[d] – rest assured that the judgment will not exceed the amount
or be different in kind from that prayed for. At least, you will not
be surprised.
Q: If the defendant filed an answer but failed to appear during
trial, what will happen?
A: The case will proceed and there will be a presentation of
evidence EX-PARTE.
Now if a person is declared in default, it is also possible that an
Ex Parte presentation of evidence will be ordered.
MANGELIN vs. CA – 215 SCRA 230 [1992]
ISSUE: What is the difference between ex-parte
presentation of evidence by virtue of default judgment AND
ex-parte presentation of evidence by failure to appear
during the trial
HELD: In reception of evidence due to DEFAULT ORDER,
paragraph [d] applies – the judgment cannot exceed the
amount or be different in kind from that prayed for in the
complaint.
BUT if there’s an ex-parte reception of evidence against a
defendant who filed an answer but FAILED TO APPEAR during
the trial, the limitations in paragraph [d] does not apply.
parties exists, and if there is no collusion, to the various modes of intervene for the State in order to see to it discovery
(Sec. 3[c] Rule 29; or
that the evidence submitted is not fabricated.
(6a, R18)
This refers to marital relations referred to in the Family Code:
Annulment of marriage; Declaration of nullity of marriage; Legal party fails to serve answers to Separation. And the policy of the State
is to preserve the marriage interrogatories. (Sec. 5 Rule
and not encourage break-ups. 29)
Therefore in this case, a greater amount than that prayed for in
the complaint, or a different nature of relief may be awarded so
long as the same are proved.
“It may be pointed out that there is a difference between a
judgment against a defendant based on evidence presented
ex-parte pursuant to a default order and one based on
evidence presented ex-parte and against a defendant who
had filed an answer but who failed to appear at the hearing.
In the former, Section 3 [d] of Rule 9 provides that the
judgment against the defendant should not exceed the
amount or be different in kind from that prayed for. In the
latter, however, the award may exceed the amount or be
different in kind from that prayed for.”
This is because when there is an ex parte presentation of
evidence due to failure to appear in trial, one’s standing in court
is not lost. HE can still present evidence later to refute the
plaintiff’s evidence. He simply waived the rights attached on
particular hearing but not to all subsequent trials. In judgment
by default, he actually loses his standing in court.
They added a new (third) limitation – Unliquidated damages
cannot be awarded in default judgment. Obviously liquidated
ones can be.
Q: What is the difference between UNLIQUIDATED damages and
LIQUIDATED damages?
A: UNLIQUIDATED DAMAGES are those which are still subject
to evidence before it can properly be awarded such as the
presentation of receipts in terms of actual damages, or taking of
testimonies to determine mental anguish or besmirched
reputation in cases of moral damages.
LIQUIDATED DAMAGES are those which are already fixed and
proof or evidence to establish the same are not required. An
example is an obligation with a penal clause like an agreement
to construct a house and upon failure to finish the same within
a stipulated period, the contractor is liable for P10,000 for every
day of delay. The amount is already fixed based on the contract
price and the penalty provided and such other circumstances as
stipulated.
So, in an action for unliquidated damages, let the defendant be
declared in default anyway the court can never award those
damages. Because if I will zanswer, damages can be awarded. In
other words, I will win the case simply because there is no way
for the court to award the damages. And most damages are
usually those unliquidated damages.
(e) Where no defaults allowed. - If the
defending party in an action for annulment
or declaration of nullity of marriage or for
legal separation fails to answer, the court
shall order the prosecuting attorney to
investigate whether or not a collusion
between the
(b) If a party or officer or managing
agent of a party willfully fails to appear
before the officer
who is to take deposition or a
Now, in the absence of this provision, husband and wife quarrels
and then they decide to separate. Wife will file a case for legal separation with the agreement that the husband will not
answer.
Being in default, there will be a judgement in default and in a
month’s time marriage will be severed for the meantime. The
provision then
prohibits default in marital relations cases to preserve and uphold public policy.

Relate this provision of the rule to Articles 48 and 60 of the Family

Code:

Family Code, Art. 48. In all cases of

annulment or declaration of absolute nullity
of marriage, the court shall order the prosecuting attorney or fiscal assigned
to it to
appear on behalf of the State to take steps to
prevent collusion between the parties and to
take care that the evidence is not fabricated or suppressed.

In the cases referred to in the preceding

paragraph, no judgment shall be based upon

a stipulation of facts or confession of judgment.

Family Code, Art. 60. No decree of legal

separation shall
be based upon a stipulation of facts or a confession of judgment.

In any case, the court shall order the

prosecuting attorney or fiscal assigned to it to
take steps to prevent collusion between the
parties and to take care that the evidence is not fabricated or
suppressed.

Judgment by default for refusal to comply with the modes of discovery

The rule is that a default order and consequently a default judgment is

triggered
by the failure of the defending party to file
the required
answer (Sec. 3 Rule 9). By way of
exception, a judgment by default may be

rendered in the following cases despite an answer having been filed:

(a) If a party refuses to obey an order

requiring him to comply with
Rule 10
AMENDED AND SUPPLEMENTAL PLEADINGS
Part I. AMENDMENTS
Sec. 1. Amendments in general. - Pleadings
may be amended by adding or striking out
an allegation or the name of any party, or
by correcting a mistake in the name of a
party or a mistaken or inadequate
allegation or description in any other
respect, so that the actual merits of the
controversy may speedily be determined,
without regard to technicalities, and in
the most expeditious and inexpensive
manner. (1)
Pleadings may be amended by:
1) adding an allegation of a party
2) adding the name or substituting a party
3) striking out an allegation of a party;
4) striking out the name of a party;
5) correcting a mistake in the name of a party; and
6) correcting a mistake or inadequate allegation or
description in any other respect.
So you can amend by removing something, adding something,
or changing something by substituting another word. You can
amend by removing an entire paragraph, an entire sentence, a
phrase, or a word. As a matter of fact, before reaching Rule 10,
there are provisions where amendments have already been
touched upon, one of which is Rule 1, Section 5:
Sec. 5. Commencement of action.- A civil
action is commenced by the filing of the
original complaint in court. If an
 additional defendant is impleaded in a
later pleading, the action is commenced
with regard to him on the date of the filing
of such later pleading, irrespective of
whether the motion for its admission, if
necessary, is denied by the court.
Q: What is the policy of the law on amendments?
A: Section 1 says that the purpose of amendment is that the
actual merits of the controversy may speedily be determined
without regard to technicalities, and in the most expeditious
and inexpensive manner. According to the SC, amendments to
pleadings are favored and should be liberally allowed in order
(a) to determine every case as far as possible on its
actual merits without regard to technicalities,
(b) to speed up the trial of cases, and
(c) to prevent unnecessary expenses. (Verzosa vs.
Verzosa, L-25603, Nov. 27, 1968; Cese vs. GSIS, L-
135814, Aug. 31,
1960)
EXAMPLE: The plaintiff files his complaint or the defendant
files his answer and then later on he realizes that his cause of
action is wrong or that his defense is wrong. He would like to
change his complaint or change his answer. All he has to do is
amend his complaint or answer. The court cannot stop him
from changing his complaint or changing his answer
because the purpose of litigation is: the real nature of
controversy will be litigated in court. You cannot normally
stop the party from ventilating his real cause of action or his
real defense so that the rule is that amendments should be
liberally allowed in the furtherance of justice and that the real
merits of the case will come out in court. That is what you have
to remember about concept of amendments and the policy of
the rules on amendments.
TYPES OF AMENDMENTS:
The following are the important points to remember here:
FIRST, there are two types of amendment of pleadings under
the rules:
1) An amendment as a matter of right; or
2) An amendment as a matter of judicial discretion
SECOND, an amendment could be
1) a formal amendment; or
2) a substantial amendment
These are the same classification under the Rules on Criminal
Procedure under Rule 110.
Amendment as a MATTER OF RIGHT; and
Amendment as a MATTER OF JUDICIAL
DISCRETION
AMENDMENT AS A MATTER OF RIGHT simply means that
the party has the unconditional action or right to amend
his pleading. The court has no right to prevent him from
amending. The opposite party has no right to oppose the
amendment. If the court refuses to admit the amended pleading
such refusal is correctible by mandamus.
AMENDMENT AS A MATTER OF JUDICIAL DISCRETION
simply means that the court may or may not allow the
amendment. So the other party has the right to oppose. This
is also known as amendment by leave of court.
AMENDMENT AS A MATTER OF RIGHT
Sec. 2. Amendments as a matter of right. - A
party may amend his pleading once as a
matter of right at any time before a
responsive pleading is served or, in the
case of a reply, at any time within ten (10)
days after it is served. (2a)
Amendment as a matter of right at any time before a responsive
pleading is served or in case of a Reply, within 10 days after it is
served.
PROBLEM: I am the plaintiff, I file a complaint. I want to
amend my complaint. When is the amendment a matter of
right?
A: At any time a responsive pleading is served to the complaint.
Meaning, at any time before the defendant has filed his answer,
the plaintiff may change his complaint at any time. He may
change it in any manner, substantially or formally.
Q: How about the defendant? Suppose he wants to change
his answer, when is his right absolute or as a matter of fact
right?
A: At any time before a reply by the plaintiff is filed or before
the expiration of the period to file a reply because a reply may or
may be not be filed.
Rule applicable before the trial court not on appeal
Section 2 refers to an amendment made before the trial
court, not to amendments before the Court of Appeals. The
CA is vested with jurisdiction to admit or deny amended
petitions filed before it (Navarro vs. Vda. De Taroma, 478 SCRA
336).
Q: How about if you want to amend your reply? You
cannot say before a responsive pleading is served because
there is no more responsive pleading to the reply.
A: So under Section 2, the plaintiff can amend his reply at any
time within ten (10) days after it is served.
Before the service of a responsive pleading, a party has the
absolute right to amend his pleading, regardless of whether a
new cause of action or change in the theory is introduced
(Bautista vs. Maya-Maya Cottages, Inc. 476 SCRA 416).
Applicability of Mandamus
The court would be in error if it refuses to admit an amended
pleading when its exercise is a matter of right. This error is
correctible by mandamus (Breslin vs. Luzon Stevedoring 84
Phil. 618; Ong Peng vs. Custodio 1 SCRA 780) because the trial
court’s duty to admit an amended complaint made as a matter
of right is purely ministerial (Alpine Lending Investors vs.
Corpuz 508 SCRA 45).
Q: Is there any other instance when amendment is a matter
of right even if there is already an answer or even in the
middle of the trial?
A: Yes, there is a second instance, when the amendment is
FORMAL IN NATURE as found in Section 4:
Sec. 4. Formal amendments. - A defect in
the designation of the parties and other
clearly clerical or typographical errors
may be summarily corrected by the court
at any stage of the action, at its initiative
or on motion, provided no prejudice is
caused thereby to the adverse party. (4a)
When the amendment is fairly formal, it can be done anytime.
As a matter of fact it can be summarily corrected by the court at
any stage of the action, upon motion or even without motion
because anyway that is a harmless correction.
NOTE: Change of amount of damages is only formal because
there is no change in the cause of action.
SUMMARY: Amendment as a matter of right:
1) Before an answer is filed (Complaint);
2) Before a reply is filed or before the period for filing a
reply expires (Answer);
3) Any time within 10 days after it is served (Reply); and
4) Formal amendment
A motion to dismiss is not a responsive pleading
If a motion to dismiss is filed, an amendment to the complaint
would still be a matter of right during the pendency of the
motion to dismiss. Such a motion is not a responsive pleading
and its filing does not preclude the exercise of the plaintiff’s
right to amend his complaint (Paeste vs. Jadrigue 94 Phil. 179;
Republic vs. Ilao 4 SCRA 106; Remington Industrial Salesvs. CA
382 SCRA 499).
In a case, the defendant, instead of filing an answer filed a
motion to dismiss on the ground that the plaintiff is not a
juridical person and thus, cannot be a party to the case. The
plaintiff filed a motion to admit an amended complaint which
was admitted by the trial court. As to whether or not plaintiff
could so amend his complaint as a matter of right, the Supreme
Court reiterated the rule that a party may amend his pleading
once as a matter of right at any time before a responsive
pleading is served. The Court declared that a motion to dismiss
is not a responsive pleading and so the duty of the trial court is
to admit the amended complaint. Such duty is a ministerial one
because the amendment, under the circumstances, is a matter
of right. In fact the plaintiff should not have filed a motion to
admit the amended complaint (Alpine Lending Investors vs.
Corpuz 508 SCRA 45).
Even if the motion to dismiss is granted by the court, the
plaintiff may still amend his complaint as a matter of
right before the dismissal becomes final as long as no
answer has yet been served. (Bautista vs. Maya-Maya
Cottages Inc. [supra]).
Following the above rule, an amendment to the complaint
sought to be made one month after notice of the order
dismissing the complaint can no longer be allowed because the
order of dismissal has already become final due to the failure to
perfect an appeal. As a rule, the aggrieved party must perfect
his appeal within the period as provided for by law. The rule is
mandatory in character. A party’s failure to comply with the law
will result in the decision becoming final and executory and, as
such, can no longer be modified or reversed. Thus, it is beyond
the power or jurisdiction of the court which rendered the
decision or order to amend or revoke the same after the lapse of
the fifteen-day reglementary period to file an appeal (National
Mines and Allied Workers Union GR 157232, December 10,
2007)
AMENDMENT AS A MATTER OF JUDICIAL
DISCRETION
Sec. 3. Amendments by leave of court. -
Except as provided in the next preceding
section, substantial amendments may be
made only upon leave of court. But such
leave may be refused if it appears to the
court that the motion was made with
intent to delay. Orders of the court upon
the matters provided in this section shall
be made upon motion filed in court, and
after notice to the adverse party, and an
opportunity to be heard. (3a)
Q: When is an amendment a matter of judicial discretion?
A: 1. If the amendment must be substantial; and
2. The adverse party has already filed and served a copy of
his responsive pleading.
The plaintiff, for example, cannot amend his complaint by
changing his cause of action or adding a new one without leave
of court (Calo and San Jose vs. Roldan 756 Phil 445;
Buenaventura vs. Buenaventura 94 Phil. 193)
After a responsive pleading is filed, an amendment to the
complaint may be substantial and will correspondingly require a
substantial alteration in the defenses of the adverse party. The
amendment of the complaint is not only unfair to the defendant
but will cause unnecessary delay in the proceedings. Leave of
court is thus, required. On the other hand, where no responsive
pleading has yet been served, no defenses would be altered. The
amendment of the pleading will not then require leave of court
(Siasoco vs. CA 303 SCRA 186).
Amendment discretionary
Under R 10 Sec. 3 of the 1997 Revised Rules of Court, the trial
court is accorded sound discretion to grant or deny the
admission of any proposed substantial amendments to a
pleading after a responsive pleading has been filed. Generally,
where the trial court has jurisdiction over the case, proposed
amendments are denied if such would result in delay, or would
result in a change of a cause of action or defense or change the
theory of the case, or are inconsistent with the allegations in the
original complaint. (Vivian Locsin, et al., vs. Sandiganbayan, et
al., GR No. 134458, August 9,
2007)
The clear import of Sec. 3 of Rule 10 is that under the 1997
Rules, an amendment may now be allowed by the court even if
it substantially alters the cause of action or defense (PPA vs.
William GoThong & Aboitiz [WG&A], Inc. 542 SCRA 406 [2008])
Q: Assuming that the amendment is a matter of judicial
discretion, how should the court resolve it?
A: Based on established jurisprudence, the court should always
allow the amendment because of the liberal policy of the rules.
Amendments of pleadings should be liberally allowed in order
that the real merits of the case can be ventilated in court
without regard to technicalities. So the court will always lean
on allowing a pleading to be amended. That is the liberal policy.
 LIMITATIONS TO THE LIBERAL POLICY IN
AMENDMENTS TO PLEADINGS
Q: What are the limitations to this liberal policy in allowing
amendments? Meaning, when can the court refuse to allow
the amendment and when can you validly oppose it?
A: The following:
1.) when the amendment is to delay the action
(Section 3);
2.) when the amendment is for the purpose of making
the complaint confer jurisdiction upon the court
(Rosario vs.
Carangdang, 96 Phil. 845);
3.) when the amendment is for the purpose of curing
a
premature or non-existing cause of action (Limpangco
vs. Mercado, 10 Phil. 508; Wong vs. Yatco, 99 Phil.
791)
4.) When the cause of action, defense or theory of the
case is changed.
1.) WHEN THE AMENDMENT IS TO DELAY THE ACTION
The second sentence of Section 3 says that such leave may be
refused if it appears that the motion was made with intent to
delay. Meaning, the motion to amend is dilatory.
Example: a case is filed against the defendant based on a cause
of action then trial…trial…then the case is already about to end.
Then the plaintiff says he wants to amend his complaint and
change his cause of action. I don’t think the court will allow it.
That’s too much.
Or, the defendant will say that he would like to change his
defense. I don’t think the court will agree with that situation
because it appears that the motion to amend is already dilatory.
Why did it take you one year to realize that your cause of action
or your defense is wrong? So that is a limitation where the
court may refuse to apply the principles on liberality. The
liberal policy becomes weaker or is working against you the
longer you delay your amendment because it might already be
interpreted to be dilatory.
Now if you will notice, there is another limitation found in the
old rules that is gone here, and that is: That the amendment
will not be allowed if it will SUBSTANTIALLY alter the
cause of action or defense (Torres vs. Tomacruz, 49 Phil. 913)
The implication here is that, since amendment is favored, even
if you alter you cause of action or defense, you should not
prevent the other party provided that it is not dilatory. And the
definition of this limitation is a confirmation of what the SC said
in some cases like the case of
MARINI-GONZALES vs. LOOD – 148 SCRA 452
HELD: “While the Rules of Court authorize the courts to
disallow amendment of pleadings when it appears that the
same is made to delay an action or that the cause of action
or defense is substantially altered thereby, the rule is not
absolute.” It is discretionary
“Courts are not precluded from allowing amendments of
pleadings even if the same will substantially change the
cause of action or defense provided that such amendments
do not result in a substantial injury to the adverse party.
This is due to the permissive character of said rule [which
provides: “may refuse”]. In fact, this Court has ruled that
amendments to pleadings are favored and should be
liberally allowed in the furtherance of justice.”
That is why these are enough reason to delete that limitation.
But if you are going to change your cause of action or defense
when the trial is almost over, hindi na puwede because that will
be dilatory. But if you want to change it before the trial, that it
still allowed, even if it is substantial in nature. That’s why this
limitation disappeared. But despite the fact that there is only
one limitation now left, it is conceded that there are still
limitations not found in the law which have remained intact.
2.) WHEN THE AMENDMENT IS FOR THE PURPOSE OF
MAKING
THE COMPLAINT CONFER JURISDICTION UPON THE
COURT
Amendment to correct a jurisdictional defect before a
responsive pleading is served:
A fair reading of jurisprudence recognizes the right of a pleader to
amend his complaint before a responsive pleading is served even
if its effect is to correct a jurisdictional defect. The argument that
the court cannot allow such type of amendment since the court
must first possess jurisdiction over the subject matter of the
complaint before it can act on any amendment has no
application upon an amendment that is made as a matter of
right.
In one case involving litigation over a parcel of land, the
complaint filed with the then CFI was a complaint alleging
forcible entry. The defendants filed a motion to dismiss alleging
that the court has no jurisdiction over an action for forcible
entry. Without waiting for the resolution of the motion to
dismiss, the plaintiff filed an amended complaint with new
allegations which transformed the original allegations of forcible
entry into an action for quieting of title, an action which at that
time was cognizable by the CFI. The trial court admitted the
amended complaint, ordered the defendants to answer it and
denied the motion to dismiss. The SC sustained the trial court
as being consistent with the purpose and spirit of the Rules
(Gumabay vs. Baralin 77 SCRA 258).
In another case filed before the City Court of Manila to recover
unpaid rentals with a prayer that an order be issued for the
surrender of the premises by the defendant to the plaintiff, the
defendant filed a motion to dismiss on the ground that the
amount sought to be recovered is beyond the jurisdiction of the
court and that there are no allegations in the complaint showing
that the defendant was unlawfully withholding the premises
from the plaintiff. Before action could be taken on the motion to
dismiss, the plaintiff amended the complaint, to include the
requisite allegations. The court denied the motion to dismiss
and the opposition to the amended complaint. The court ruled
that since no responsive pleading was served at the time of the
amendment, the plaintiff had done so as a matter of course.
Reiterating the rule that a motion to dismiss is not a responsive
pleading, the SC sustained the trial court (Soledad vs.
Mamangun 8 SCRA 110).
Amendment to correct a jurisdiction defect after a
responsive pleading is served:
An amendment of the complaint to correct a jurisdictional error
cannot be validly done after a responsive pleading is served. The
amendment this time would require leave of court, a matter
which requires the exercise of sound discretion. The exercise of
this discretion requires the performance of a positive act by the
court. If it grants the amendment, it would be acting on a
complaint over which it has no jurisdiction. Its action would be
one performed without jurisdiction.
The situation is vastly different from an amendment as a matter
of right. Here the court does not act. The admission of the
amendment is a ministerial duty of the court. It requires no
positive action from the court. Since it would not be acting in
this regard, it could not be deemed as acting without
jurisdiction.
In one case, a former employee filed an action for recovery of
compensation for unpaid holiday and overtime services with the
then Court of Industrial Relations against his former employer.
The defendant filed a motion to dismiss but was denied. The
defendant-employer then filed an answer invoking as one of its
affirmative defenses lack of jurisdiction of the court over the
subject matter since the complaint did not allege the existence
of an employer-employee relationship between the parties. The
complaint alleged neither illegal dismissal nor seeks for the
reinstatement of the plaintiff. Realizing a jurisdictional error,
the plaintiff filed leave to amend his complaint and to admit an
amended pleading alleging illegal dismissal and a claim for
reinstatement. Speaking on the issue of the propriety of the
admission of the amendment, the SC ruled that a “complaint
cannot be amended to confer jurisdiction on the court in which
it was filed, if the cause of action originally set forth was not
within the court’s jurisdiction” (Campos Rueda Corp. vs.
Bautista 6 SCRA 240; Rosario vs. Carandang 96 Phil. 845). Note
that in Campos Rueda, an answer has already been served and
filed.
Similarly, in an action for damages filed before the then CFI
against a sheriff for an alleged illegal levy upon the property of
the plaintiff, the latter sought to amend his complaint after an
answer has been served by the defendant. The amendment was
made when the plaintiff realized that the amount alleged as
damages was below the jurisdiction of the court. The SC held
that it was error to admit the amendment because the court
must first acquire jurisdiction over the subject matter of the
complaint in order to act validly on the same including its
amendment (Gaspar v. Dorado 15 SCRA 331).
In other words, if based on the original complaint the court has
no jurisdiction over the subject matter and the defendant has
already filed an answer, can I still amend the complaint so that
the court will have jurisdiction? No, that will not be allowed.
So, jurisdiction by the court cannot be conferred by amendment
when the original complaint shows that the court has no
jurisdiction.
EXAMPLE: I will file a complaint for an unpaid loan and the
amount is exactly P200,000 only. Where should I file the
complaint? MTC. But by mistake I file it in the RTC and later I
realized that the case should have been filed in the MTC
because the jurisdiction of the RTC should be above P200,000.
So I will amend my complaint and change the complaint and
say that my claim is P200,001.00. The obvious purpose of the
amendment is to make the case fall within the jurisdiction of
the RTC. According to the SC, it cannot be done.
The rule here is when in its face, the complaint shows that the
court has no jurisdiction over the subject matter, the court has
no authority to act in the case. And if you move to amend it and
ask the court to allow the amendment, you are assuming that
the court has the authority to act on the case. But the court
can’t allow it because the court has no authority to act. So the
court even is not authorized to allow the amendment because it
has no authority to act in the first place. How can you allow
something when you do not have the authority to act?
So according to the SC, when its on very face the complaint
shows that the court has no jurisdiction, the court has
only one authority and its only authority is to dismiss the
case. So with that an amendment cannot confer jurisdiction.
3.) WHEN THE AMENDMENT IS FOR THE PURPOSE OF
CURING A PREMATURE OR NON-EXISTING CAUSE OF
ACTION
Meaning, on its very face, there is no cause of action, there is
no case. There is no delict or there is no wrong. Now how can
you create a delict or wrong by amending your complaint? In
effect, you are creating something out of nothing.
Amendment to cure a failure to state a cause of action:
If the complaint failed to aver the fact that certain conditions
precedent were undertaken and complied with, the failure to so
allege the same may be corrected by an amendment to the
complaint. Section 5 of Rule 10 likewise applies to situations
wherein evidence not within the issues raised in the pleadings is
presented by the parties during the trial and was not objected
to. The provision also covers situations where, to conform to
evidence not objected to by the adverse party. Thus, a complaint
which fails to state a cause of action may be cured by evidence
presented during the trial.
For example, a complaint filed by a guarantor to collect a sum of
money from the debtor fails to state a cause of action if the
complaint does not allege that the creditor of the debtor has
been paid by the guarantor even if in fact there was payment.
However, if during the course of the proceedings, evidence is
offered on the fact of payment without objection from the debtor,
the defect in the complaint was cured by the evidence. The
plaintiff may then move for the amendment of his complaint to
conform to the evidence. (Philippine Export and Foreign Loan
Guarantee Corporation vs. Philippine Infrastructures Inc. 419
SCRA 6).
No amendment where no cause of action exists:
Q: May a complaint that lacks a cause of action at the time
it was filed be cured by the accrual of a cause of action
during the pendency of the case?
This was the basic issue raised in one significant case
(Swagman Hotels and Travel Inc vs. CA, 455 SCRA 175). When
the case was filed none of the promissory notes subject of the
action was due and demandable but two of the notes became
due during the pendency of the action.
Sec. 5 of Rule 10 allows a complaint that does not state a cause
of action to be cured by evidence presented without objection
during the trial. The trial court ruled that even if the private
respondent had no cause of action when he filed the complaint
for a sum of money and damages because none of the three
promissory notes was due yet, he could nevertheless recover on
the first two promissory notes which became due during the
pendency of the case in view of the introduction of evidence of
their maturity during the trial.
The court rules that such interpretation is erroneous. It further
said:
“Amendments of pleadings are allowed under Rule 10 of the
1997 Rules of Civil Procedure in order that the actual merits of
a case may be determined in the most expeditious and
inexpensive manner without regard to technicalities, and that
all other matters included in the case may be determined in a
single proceeding, thereby avoiding multiplicity of suits. Section
5 thereof applies to situations wherein evidence not within the
issues raised in the pleadings is presented by the parties during
the trial, and to conform to such evidence the pleadings are
subsequently amended on motion of a party. Thus, a complaint
which fails to state a cause of action may be cured by evidence
presented during the trial.
“However, the curing effect under Section 5 is applicable only if a
cause of action in fact exists at the time the complaint is filed, but
the complaint is defective for failure to allege the essential facts.
For example, if a complaint failed to allege the fulfillment of
a condition precedent upon which the cause of action
depends, evidence showing that such condition had already
been fulfilled when the complaint was filed may be
presented during the trial, and the complaint may
accordingly be amended thereafter. Thus, in Roces vs.
Jalandoni, this Court upheld the trial court in taking
cognizance of an otherwise defective complaint which was later
cured by the testimony of the plaintiff during the trial. In that
case, there was in fact a cause of action and the only problem
was the insufficiency of the allegations in the complaint. It thus
follows that a complaint whose cause of action has not yet
accrued cannot be cured or remedied by an amended or
supplemental pleading alleging the existence or accrual of
a cause of action while the case is pending. Such an action
is prematurely brought and is, therefore, a groundless suit,
which should be dismissed by the court upon proper motion
seasonably filed by the defendant. The underlying reason for
this rule is that a person should not be summoned before the
public tribunals to answer for complaints which are immature.”
BAR QUESTION: How do you distinguish a NON-EXISTENT
cause of action from IMPERFECT cause of action?
A: The following are the distinctions:
1.) In a NON-EXISTENT cause of action, there is
yet no delict or wrong committed by the
defendant (Limpangco vs. Mercado, 10
Phil. 508) whereas
In an IMPERFECT cause of action, a delict or
wrong has already been committed and
alleged in the complaint, but he cause of
action is incomplete (Alto Surety vs.
Aguilar, L-5625,
March 16, 1945); and
a NON-EXISTENT cause of action is not curable
2.) by
amendment (Limpangco vs. Mercado, 10 Phil.
508; Surigao Mine vs. Harris, 68 Phil. 113)
whereas
an IMPERFECT cause of action is curable by
amendment (Alto Surety vs. Aguilar, L-5625,
March 16, 1945; Ramos vs. Gibbon, 67 Phil.
371).
BAR QUESTION: Suppose the filing of the complaint will
lapse on January 20 and I will file the complaint today so
the running of the period will be interrupted. Suppose I will
amend my complaint next month, on February. Question:
Is prescription properly interrupted? When an original
complaint is amended later, when is the prescriptive period
for filing the action interrupted? Upon the filing of the
original complaint or upon the filing of the amended
complaint?
A: It DEPENDS upon the nature of the amendment:
a.) If the amendment introduces a new and different
cause of action, then the prescriptive period is
deemed interrupted upon the filing of the
amended
complaint; (Ruymann vs. Dir. of Lands, 34 Phil. 428)
b.) But where the amendment has not altered or
changed the original cause of action, no different
cause of action is introduced in the amended
complaint, then the interruption of the
prescriptive period retroacts on the date of the
filing of the original complaint. (Pangasinan Trans.
CO. vs. Phil. Farming Co., 81 Phil. 273; Maniago
vs. Mallari, 52
O.G. 180, October 31, 1956)
EXAMPLE: I will file today a case for damages arising from
quasidelict. And then one or two months from now I will amend
my complaint from damages arising from culpa aquiliana to
damages arising from culpa contractual. Is that a different
cause of action? Yes, so the prescriptive period for culpa
contractual is deemed filed next month, not this month,
because that is a different cause of action.
EXAMPLE: But suppose I file a case against you for culpa
aquiliana, and my claim is one million. Next month I amend my
complaint for damages from one million pesos to two million
pesos. Did I change my cause of action? No, it is still the same
cause of action—culpa aquiliana. Therefore, the prescriptive
period is deemed interrupted as of the date of the filing of the
original complaint.
AMENDMENTS TO PLEADINGS IN CRIMINAL CASES
Now, the classifications of amendments under the rule on
criminal procedure are the same because there is such a thing
as amendments on the criminal complaints or information as a
matter of right on the part of the prosecution and amendments
as a matter of judicial discretion. And under the rules of
criminal procedure, an amendment can either be formal or
substantially received. There is some difference in the rules.
How do you differentiate the amendment of a pleading, under
the rules on civil procedure and the amendment of a criminal
complaint or information in criminal cases? Take note that
there is no Answer in criminal cases. The accused is not obliged
to file answer but the counterpart of answer in criminal cases is
the plea, where he pleads either guilty or not guilty.
Under the rules on criminal procedure, at anytime before the
arraignment or before he enters plea, the amendment of
information is a matter of right, either in form or in substance.
EXAMPLE: The prosecution files information against you for
homicide and then the prosecution wants to agree to murder.
Can it be done? YES, for as long as the accused has not yet
entered his plea.
So it is almost the same as in civil cases. For as long as there
is no responsive pleading, the amendment is a matter of
right, whether in substance or in form.
Q: Now in criminal cases, AFTER the accused had already
entered his plea to the original charged, is amendment still
allowed? Can the prosecution still amend?
A: YES. But what is allowed is only formal amendment and with
leave of court. Substantial amendment is 100% prohibited in
criminal cases. But in civil cases, formal amendment is still a
matter of right hence, does not require leave of court, while
substantial amendment is discretionary.
 OBJECTIONS AND DEFENSES NOT RAISED ARE DEEMED
WAIVED; EXCEPTION
Sec. 5. Amendment to conform to or authorize
presentation of evidence - When issues not
raised by the pleadings are tried with the
express or implied consent of the parties,
they shall be treated in all respects as if
they had been raised in the pleadings.
Such amendment of the pleadings as may
be necessary to cause them to conform to
the evidence and to raise these issues may
be made upon motion of any party at any
time, even after judgment; but failure to
amend does not affect the result of the
trial of these issues. If evidence is objected
to at the trial on the ground that it is not
within the issues made by the pleadings,
the court may allow the pleadings to be
amended and shall do so with liberality if
the presentation of the merits of the
action and the ends of substantial justice
will be subserved thereby. The court may
grant a continuance to enable the
amendment to be made. (5a)
When issues not raised in the pleadings are tried with the
express or implied consent of the parties-
1. they shall be treated as if raised in the pleadings;
2. pleadings may be amended to conform to the evidence;
and
3. failure to amend does not affect the result of the trial
of these issues.
Q: May issues not raised in the pleadings be tried in court
during the trial?
A: As a GENERAL RULE, a defendant during the trial is not
allowed to prove a defense that is not raised in the pleadings
based on Rule 9, Section 1. The court has no jurisdiction over
the issue. That’s why there is no such thing as surprise defense
because a defense that is not raised is deemed waived.
Q: Is there an EXCEPTION to Rule 9, Section 1? Can the rule
be relaxed?
A: YES. Section 5 is a relaxation of the rule specifically the
first sentence: “when issues not raised in the pleadings are tried
with the express or implied consent of the parties, they shall be
treated in all respects as if they had been raised in the
pleadings.”
EXAMPLE: In a collection case, the defendant in his answer
raised a defense that the money obtained from the defendants
was not a loan but a donation. During the trial, he attempted to
prove that it was a loan but it was already fully paid. So he is
now proving the defense of payment. He is practically changing
his defense. If you follow Rule 9, Section 1, that is not allowed.
But suppose the parties during the trial, the plaintiff agrees that
the defendant will prove that the obligation is paid, then it can
be done because issues now raised in the pleadings are tried
with the express consent of the parties. They shall be treated in
all respects as if they had been raised in the pleadings.
In the case of implied consent, the best example is when the
defendant attempts to prove payment and the plaintiff FAILED
TO OBJECT. So there is now an implied consent by the parties.
Therefore, the case can now be tried on the issue as if they had
been raised in the pleadings. That is what we call the principle
of estoppel. The parties are in estoppel because they expressly
or impliedly agreed to try an issue which is not raised in the
pleadings. The court will now render judgment and discuss the
evidence and discuss whether the obligation has been paid or
not.
So if it happens, the decision will not jibe with the pleadings. If
you read the complaint and the answer, there is no mention of
payment but in the decision resolved the case on that issue.
The pleadings are not in harmony with the decision.
Q: So how will you harmonize the two – pleadings and the
decision?
A: The remedy according to Section 5 is to amend the
pleadings. We can amend the pleadings to make them conform
to the evidence. That is why the law says: “such amendment of
the pleadings as may be necessary to cause them to conform to
the evidence and to raise these issues may be made upon
motion of any party at any time, even after judgment.”
So even after the judgment, you can amend the pleading in
order to harmonize with the evidence. Normally, the evidence
should conform to the pleading under Rule 9. In this case,
baliktad! – it is the pleading which is being amended to conform
to the evidence. It is the exact opposite.
Normally that is for the benefit of the appellate court in case the
decision will be the case will be appealed. The CA will read the
complaint and the answer, “wala mang payment dito!” But
when you read the decision, the main issue was payment not
found in the complaint and the answer. So there might be
confusion. So amendment is necessary at anytime, even after
judgment.
Amendment to conform to evidence
The curing effect under Sec. 5 R 10 is applicable only if a cause
of action in fact exists at the time the complaint is filed. Unless
the plaintiff has a valid and subsisting cause of action at the
time his action is commenced, the defect cannot be cured or
remedied by the acquisition or accrual of one while the action is
pending, and a supplemental complaint or an amendment
setting up such after accrued cause of action is not permissible.
The action in the case at bar is prematurely brought and is,
therefore, a groundless suit, which should be dismissed by the
court upon proper motion seasonably filed by the defendant.
The underlying reason for this rule is that a person should not
be summoned before the public tribunals to answer for
complaints which are premature. (Swagman Hotels and Travel,
Inc. vs. CA and Neal Christian, GR No. 161135, April 8, 2005)
Q: But suppose the parties never bothered to amend the
pleadings, is there a valid judgment?
A: YES because the law says, “but failure to amend does not
affect the result of the trial of these issues.” So, there is a valid
trial and the court acquires jurisdiction over the issues because
of their implied or express consent. The best example is
FAILURE TO OBJECT.
“if the evidence is objected to at the trial on the ground
that it was not within the issues made by the
pleadings, the court may allow the pleadings to be
amended and shall do so with liberality if the
presentation of the merits of the action and the ends of
substantial justice will be subserved thereby.”
EXAMPLE: The defendant during the trial attempted to prove
the obligation that it is paid. The lawyer of the plaintiff is alert
and objected thereby, “You cannot prove that defense because
you never raise a defense of payment in your answer.” Is the
objection correct? YES because of Rule 9, Section 1. The court
affirmed the plaintiff that one cannot prove the defense of
payment because you never raised it in your answer. There is
no express or implied consent.
Q: But the defendant said, “If that is so your honor, may we be
allowed to amend our answer so that we will now raise the
defense of payment and prove it in court?” Can the court allow
the defendant to amend his answer in the middle of the trial
just to prove a defense that is not raised?
A: The rule says YES, the court may allow the pleadings to be
amended and shall do so with liberality if the presentation of
the merits of the action and the ends of substantial justice will
be subserved thereby.
That is why you can say that the power of the court in enforcing
the Rules of Court is very wide. For example, I am the judge
and the defendant never raised the issue of payment in his
answer and he is now rising such defense. The plaintiff’s lawyer
will now object and alleged that he cannot prove such defense
for he never raised it in his answer. The judge sustained the
objection, “You cannot prove a defense that is never raised in
your answer.”
Q: Is my ruling correct?
A: YES because of Rule 9, Section 1 – objections and defenses
not raised in the answer are deemed waived.
The defendant will now move to be allowed to amend the
pleading so that I raised that defense. The plaintiff will object
to the amendment. The judge will ask the plaintiff, “is the
obligation paid?” “NO. The defendant never paid it,” answered
the plaintiff. So if the defense is false, why are you afraid?
Anyway, he cannot prove it. So I will allow the amendment.
However, if the plaintiff will answer that the defendant has
already paid the obligation but that he never raised such matter
in his answer. The plaintiff now will be in bad faith. So I will
allow the amendment.
So in other words, in any way my ruling is correct because I
know how to apply the rule. So the court will allow the
amendment and shall do so with liberality… so LIBERALITY
should be the rule on amendment. Section 5 is a rule more on
equity. While, Rule 9, Section 1 is a rule of law. Section 5 is a
relaxation of that law on technicality.
The last sentence, “the court may grant a continuance to enable
the amendment to be made.” ‘Continuance’ means
postponement. It means, postponement of the case to allow the
defendant to amend his answer first.
Part II. SUPPLEMENTAL PLEADINGS
Sec. 6. Supplemental pleadings. - Upon
motion of a party the court may, upon
reasonable notice and upon such terms as
are just, permit him to serve a
supplemental pleading setting forth
transactions, occurrences or events which
have happened since the date of the
pleading sought to be supplemented. The
adverse party may plead thereto within ten
(10) days from notice of the order
admitting the supplemental pleading. (6a)
The second part of Rule 10 is on supplemental pleadings
A supplemental pleading is one which avers facts occurring
after the filing of the original pleadings and which are material to
the matured claims and/or defenses therein alleged. (Herrera vol.
1 p. 603)
Cause of action in supplemental pleadings
The cause of action stated in the supplemental complaint must
be the same as that stated in the original complaint. Otherwise,
the court should not admit the supplemental complaint (Asset
Privatization Trust vs. CA GR No. 121171, Dec. 29, 1998)
When the cause of action in the supplemental complaint is
different from the cause of action mentioned in the original
complaint, the court should not admit the supplemental complaint
(Asset Privatization Trust vs. CA 324 SCRA 533).
As its very name denotes, a supplemental pleading only serves
to bolster or add something to the primary pleading. A
supplemental pleading exists side by side with the original. It
does not replace that which it supplements. Moreover, a
supplemental pleading assumes that the original pleading is to
stand and that the issues joined with the original pleading
remained an issue to be tried in the action. It is but a
continuation of the complaint. Its usual office is to set up new
facts which justify, enlarge or change the kind of relief with
respect to the same subject matter as the controversy referred
to in the original complaint.
When the cause of action stated in the supplemental complaint
is different from the causes of action mentioned in the original
complaint’ the court should not admit the supplemental
complaint; the parties may file supplemental pleadings only to
supply deficiencies in aid of an original pleading, but not to
introduce new and independent causes of action (Young vs.
Spouses Sy, 503 SCRA 151).
Answer to a supplemental pleading; not mandatory
“Section 6, Rule 10 and Section 7, Rule 11, of the Rules of Court
are relevant, thus:
Sec. 6. Supplemental pleadings. – xxxxx The
adverse party may plead thereto within ten (10)
days from notice of the order admitting the
supplemental pleading.
Sec. 7. Answer to supplemental complaint. – xxxx
The answer to the complaint shall serve as the
answer to the supplemental complaint if no new
or supplemental answer is filed.
“As can be gleaned from the above provisions, the filing of an
answer to the supplemental pleading is not mandatory because
of the use of the word “may”. This is bolstered by the express
provision of the Rules that the answer to the original pleading
shall serve as the answer to the supplemental pleading if no
new or supplemental answer is filed. Thus, the court cannot
declare the respondent in default simply because the latter
opted not to file their answer to the supplemental petition (Chan
vs. Chan GR 150746, October 15, 2008).
Q: How do you distinguish an AMENDED pleading from a
SUPPLEMENTAL pleading?
A: Of course, the similarity between the two is the existence of
ORIGINAL PLEADING. The following are the distinctions:

FIRST DISTINCTION: As to the allegations
An AMENDED pleading contains transactions, occurrences
or events which already happened at the time the original
pleading was filed and could have been raised at the
original pleading, but which the pleader failed to raise in
the original pleading because, oversight or inadvertence or
inexcusable negligence. If he wants to raise it, he must
amend the pleading. Whereas,
A SUPPLEMENTAL pleading contains transactions,
occurrences or events which were not in existence at the
time the original pleading was filed but which only
happened after the filing of the original pleading and
therefore, could not have been raised in the original
pleading.
That is the distinction emphasized in the New Rule – Rule 11 ,
Sections 9 and 10:
Rule 11, Section 9. Counterclaim or cross-claim
arising after answer. – A counterclaim or
crossclaim which either matured or was
acquired by a party after serving his pleading
may, with the permission of the court, be
presented as a counterclaim or cross-claim by
supplemental pleading before Judgment.
Rule 11, Section 10. Omitted counterclaim or
cross claim. – When a pleader fails to set up a
counterclaim or a cross-claim through
oversight, inadvertence, or excusable neglect,
or when justice requires, he may, by leave of
court, set up the counterclaim or cross-claim
by amendment before judgment.
These provisions emphasize the difference between an amended
pleading and a supplemental pleading – how do you raise a
counterclaim or cross-claim which was not raised earlier? Is it
by amending the pleading or by filing a supplemental pleading ?
And that applies also to an answer where the defense or the
transaction or the cause of action supervened later.
SECOND DISTINCTION: As to effect
In an AMENDED pleading, the amended pleading
supersedes the original pleading. The original pleading
is deemed erased. The amended substitutes the
original. So from the viewpoint of the law, the original
pleading no longer exists. Whereas,
When a SUPPLEMENTAL pleading is filed, it does not
supersede the original pleading. In effect, there are
now two (2) pleadings which stand side by side in the
case – the original and the supplemental pleadings.
EXAMPLE: Mortz borrowed from Nanding P200,000
payable in 2 yearly installments. Mortz failed to pay
the first installment. Nanding filed a case. While the
case is pending, the other installment became due.
Nanding will now file a supplemental pleading and as a
result, there will be two (2) complaints for P100,000
each.
Rule in EVIDENCE: In an amended pleading, all your
admissions and evidence no longer exist because remember
under the rules on Evidence, any admission that you make in
your pleading binds you under the doctrine of judicial
admission where the evidence need not be given - as if it is
taken judicial notice of. The rule is, if a pleading is amended
and the amended pleading does not contain the admissions
contained in the original pleading, the judicial admission is now
converted into an extra-judicial admission and therefore the
court will no longer take judicial notice of that.
But if I want to bring it to the attention of the court an
admission which is not found there (in the amended pleading), I
have to formally offer in evidence the original pleading.
Normally, you do not offer in evidence a pleading because the
court takes judicial notice of everything stated in there. But if
the original pleading is now superseded, the original must be
offered in evidence to prove an admission found in the original
but not anymore in the amended one. That principle in now
found in Section 8:
Section 8. Effect of amended pleadings. - An
amended pleading supersedes the pleading
that it amends. However, admissions in
superseded pleadings may be received in
evidence against the pleader; and claims and
defenses alleged therein not incorporated in
the amended pleading shall be deemed waived.
That is related to the rule in evidence that what need not be
proved: judicial notice, judicial admissions.
THIRD DISTINCTION:
The filing of an AMENDED pleading could be a matter of
right or of judicial discretion under Sections 2 and 3;
whereas
The filing of a SUPPLEMENTAL pleading is always a matter
of judicial discretion under Section 6. There is always leave
of court.
Now, let us cite cases which are relevant to our topic on
supplemental pleadings.
LEOBRERA vs. CA – 170 SCRA 711
FACTS: Karen went to the bank and obtained a loan –
housing loan. A promissory note was issued payable next
year. After few months, Karen went back to the bank and
secured a second loan – agricultural loan with another
promissory note.
When the first note became due, Karen failed to pay. So the
bank sued Karen on the first promissory note. When the
case was still going on, the second loan became due. So the
bank sought to file a supplemental complaint against Karen
to collect the second loan. The maturity of the second loan
happened after the filing of the first pleading sought to be
supplemented.
ISSUE: Is there a proper supplemental complaint?
HELD: NO. It is improper. Although the plaintiff and the
defendant are the same, there are two separate loans
independent of each other as a matter of fact the
stipulations are not identical. It cannot be the subject
matter of a supplemental complaint. In this case, there are
many types of loans secured in different terms and
conditions.
“A supplemental complaint must be based on matters
arising subsequent to the original complaint RELATED to
the claim presented therein and FOUNDED on the same
cause of action.” It cannot be used to try of another matter
or a new cause of action.
A good EXAMPLE for a supplemental complaint is when I
borrow money from you for P600,000 payable in three
installments. First installment is on February for P200,000;
second installment is on April; and the last installment is on
June for the last P200,000.
There is no acceleration clause. When the first installment fell
due, I did not pay. So the plaintiff filed a case against me to
collect the first installment. In April, the case is still not yet
decided. In fact the second installment again fell due. Plaintiff
moved to file for the supplemental pleading. While the two
cases are still pending, the last installment fell due and again
there is failure to pay, so there is another supplemental
complaint.
Q: Is that proper?
A: YES because these are not two separate loans but one loan
and the installments are interrelated.
SUPERCLEAN SERVICES INC. vs. CA – 258 SCRA 165 [1996]
FACTS: Superclean Service Corp. is a company engaged in
janitorial services. A government corporation, the Home
Development and Mutual Fund (HDMF) sought a public
bidding on who will be the company who shall provide
janitorial services to the offices of the HDMF for the year
1990.
Superclean won as it was the lowest bidder. It was suppose
to start providing the service for the year 1990. However,
the HDMF refused to honor the award. So, on November 8,
1989, Superclean filed in the RTC of Manila a complaint for
mandamus and certiorari against HDMF alleging that at
public bidding for janitorial services for the year 1990, it
won as the lowest bidder but HDMF refused without just
cause, to award the contract to them.
The problem was that 1990 already ended and the case was
still on-going. So it was already rendered moot and
academic. What Superclean did was to file a supplemental
complaint in 1991 alleging that because the contract of
service was the furnishing of janitorial services for the year
1990, the delay in the decision of the case has rendered the
case moot and academic without Superclean obtaining
complete relief to redress the wrong committed against it by
HDMF which relied now consists of unrealized profits,
exemplary damages and attorney’s fees.
So, money claim na lang dahil moot and academic na eh.
Instead of pursuing its prayer for mandamus, Superclean
sought the payment of damages to it.
ISSUE: Is the filing of supplemental complaint proper in
order to seek a different relief in view of developments
rendering the original complaint impossible of attainment?
HELD: “The transaction, occurrence or event happening
since the filing of the pleading, which is sought to be
supplemented, must be pleaded in aid of a party's right of
defense as the case may be. [That’s the purpose of the
supplemental pleading – in aid of the party’s cause of action
or defense] But in the case at bar, the supervening event is
not invoked for that purpose but to justify the new relief
sought.”
“To begin with, what was alleged as a supervening event
causing damage to Superclean was the fact that the year for
which the contract should have been made had passed
without the resolution of the case. The supervening event
was cited not to reinforce or aid the original demand, which
was for the execution of a contract in petitioner's favor, but
to say that, precisely because of it, petitioner's demand
could no longer be enforced, thus justifying petitioner in
changing the relief sought to one for recovery of damages.
This being the case, petitioner's remedy was not to
supplement, but rather to amend its complaint.” You are
actually changing the relief so that the correct remedy is
not a supplemental complaint but an amended complaint.
“Be that as it may, the so-called Supplemental Complaint
filed by petitioner should simply be treated as embodying
amendments to the original complaint or petitioner may be
required to file an amended complaint.” So, meaning, you
call it a supplemental complaint, the court will call it as an
amended complaint or the other alternative, require him to
file an amended complaint.
Sec. 7. Filing of amended pleadings. - When
any pleading is amended, a new copy of
the entire pleading, incorporating the
amendments, which shall be indicated by
appropriate marks, shall be filed. (7a)
When a party files an amended pleading, the amendments
should be indicated by appropriated marks, normally, the
amended portion is underlined.
EXAMPLE: A party would to insert an entirely new paragraph.
That paragraph would be underlined. The purpose for such
marking is for the court and the opposing party to immediately
see and detect the amendment. If no appropriated mark is
provided the court and the lawyer has to compare everything,
paragraph by paragraph, sentence by sentence, line by line.
Now, if there are underlines, the court will just concentrate on
the underlined portion. This is for convenience for the parties
and the court.
An amendment which merely supplements and amplifies facts
originally alleged in the complaint relates back to the date of the
commencement of the action and is not barred by the Statute of
Limitations which expired after service of the original complaint.
(Verzosa vs. CA, GR No. 119511-13, Nov. 24, 1998)
Section 8. Effect of amended pleadings. - An
amended pleading supersedes the pleading
that it amends. However, admissions in
superseded pleadings may be received in
evidence against the pleader; and claims
and defenses alleged therein not
incorporated in the amended pleading shall
be deemed waived.
(Section 8: See discussion on Section 6 on distinctions between
an amended and supplemental pleading; second distinction)
Effect of Amended Pleading
1. An amended pleading supersedes the pleading that it
amends;
2. Admissions in the superseded pleading can still be
received in evidence against the pleader;
3. Claims or defenses alleged therein but not
incorporated or reiterated in the amended pleading are
deemed waived.
Note: Admission in a superseded pleading is an extrajudicial
admission and may be proved by the party relying thereon by
formal offer in evidence. (Regalado p. 193)
Some authors though are of the opinion that admissions in EXAMPLE: You say something favorable to me. However, in his
superseded pleadings need not be offered in evidence pursuant amended pleading, he removes such statement, so that the
to Sec. 4 R 129. court will not consider it anymore. Such statement is out of the
picture. Now, if you want to bring to the attention of the court
The first sentence is one of the distinctions between an the statement found in the original pleading, you must offer the
amended pleading and a supplement pleading. From procedural original pleading in evidence to consider it all over again. This
viewpoint, the original pleading is already non-existent. The rule will be considered in the study of EVIDENCE.
court will no longer consider anything stated there.
It has been held however, that the original complaint is deemed
superseded and abandoned by the amendatory complaint only if
the latter introduces a new or different cause of action (Verzosa vs. CA 299 SCRA 100).

Effect of amendment on admissions made in the original pleading

Admissions made in the original pleadings cease to be judicial admissions (Ching

vs. CA 331 SCRA 16). They are to be considered as extrajudicial admissions (Bastida
vs. Menzi & Co., Inc., 58 Phil.
188; Torres vs. CA 131 SCRA 224). “However, admissions in
superseded pleadings may be received in evidence against the

pleader…” (Sec. 8 Rule 10) and in order to be utilized as extrajudicial admissions, they
must, in order to have such effect, be formally offered in evidence (Ching vs. CA, 331
SCRA 16).

When summons not required after complaint is amended

Although the original pleading is deemed superseded by the pleading that amends it, it
does not ipso facto follow that the service of new summons is required. Where the
defendants have already appeared before the trial court by virtue of a summons in the
original complaint, the amended complaint may be served upon them without need of
another summons, even if new causes
of action are alleged. A court’s jurisdiction continues until the case is finally terminated
once it is acquired. Conversely, when the
defendants have not yet appeared in court, new summons on the

amended complaint must be served on them. It is not the change

of the cause of action that gives rise to the need to serve another

summons for the amended complaint but rather the acquisition of jurisdiction over the
persons of the defendants. If the trial court has not yet acquired jurisdiction over
them, a new summons for the amended complaint is required (Vlason Enterprises vs.
CA 310 SCRA 26).

However, where a new defendant is impleaded, summons must be served upon him so
that the court may acquire jurisdiction over his person because logically, the new
defendant cannot be deemed to have already appeared by virtue of summons under the
original
complaint inn which he was not yet a [arty (Arcenas vs. CA 299

SCRA 733).

Rule 11 WHEN TO FILE RESPONSIVE PLEADINGS

What are discussed in this rule are periods. The question when The day of the act that
a defendant wants to file an answer is, “How many days does he caused the interruption shall be excluded
have?” There must be a deadline. Rule 11 applies to all persons in the computation of the period. (n)
– natural and juridical such as a corporation.

Alright, a good example of this is the period to file an answer

SECTION 1. Answer to the complaint. The
defendant shall file his answer to the
complaint within fifteen (l5) days after
service of summons, unless a different
period is fixed by the court. (1a)
Section 1 is the GENERAL RULE – the defendant has a period of
15 days after service of summons within which to file his
answer. The procedure is when a plaintiff files a complaint in
court, the court will issue summons (which is the counterpart
of warrant of arrest in criminal cases). The sheriff of the court
will look for the defendant and serve him a copy of the
complaint. From that day on, the defendant has 15 days to file
his answer.
The rules says, “unless a different period is fixed by the court.”
That would be the EXCEPTION to the 15-day period to file
answer. Now, when are these instances when the court may fix
a different period? They are those mentioned in Rule 14,
Sections 14, 15, and 16 –these are instances when service of
summons by publication is prescribed.
Let’s give example to the general rule.
which is 15 days and then you filed a motion to dismiss under
Rule 16 somewhere in between. Now, what is the principle to be
remembered here?
The filing of the motion to dismiss will now interrupt the
running of the 15-day period. And when your motion is denied,
if you receive the order of the denial now, you continue
computing the balance within the remaining period to file your
answer.
Now, some people can’t understand this second sentence – “The
day of the act that caused the interruption shall be excluded in
the computation of the period.” The meaning of this is
exemplified in the case of LABITAD vs. CA (July 17, 1995). For
EXAMPLE:
We will assume that on November 30 (end of the month), you
were served with summons by the court. So you have 15 days to
file your answer from November 30. Let us say, on December
10, you filed a motion to dismiss under Rule 16. So, the
remaining of the period to file an answer is interrupted. And let
us say on December 15 or 5 days thereafter, your motion was
denied, you receive a copy of the order of denial.

EXAMPLE: If the defendant is served with a copy of the

My QUESTION is, how many days more do you have or left to
complaint and summons today (January 13,1998), the last day
file your answer? Five days?
to file an answer will be January 28, 1998. Just add 15 days to
January 13.
How many days did you consume?
In computing the period, you follow the rule known as “exclude
the first, include the last day rule” under Article 13 of the New From November 30 to December 10 = 10 days, and from
Civil Code. I think you know how to apply that. When you December 10 to December 15 = not counted. And you still have
receive the complaint today or when you are summoned today, 5 days, so December 20.
you start counting the period tomorrow. Such rule is also found
in Section 1 of Rule 22 on Computation of Time: Now if you ask majority of lawyers here, they will give the same
answer. BUT according to LABITAD, that computation is wrong.
Rule 22, Sec. 1. How to compute time. - In You actually have six (6) days.
computing any period of time prescribed
or allowed by these Rules, or by order of So your deadline to file you notice to appeal is December 21.
the court, or by any applicable statute, the Why?
day of the act or event from which the
designated period of time begins to run is
to be excluded and the date of Now, when did you file your motion? December 10. Therefore,
performance included. If the last day of December 10 is not counted because it is already interrupted.
the period, as thus computed, falls on a
Saturday, a Sunday, or a legal holiday in So actually, you did not consume 10 days but only 9 days. That
the place where the court sits, the time is the explanation of the SC in the case of LABITAD – the day
shall not run until the next working day. you filed your motion to dismiss is already excluded. So you
(n) only count December 1 to 9. This is the illustration of the
sentence “the day the act which caused the interruption is
Under Section 1, Rule 22 the act itself from which the excluded in the computation of t tie period.” ILLUSTRATION:
designated period of time where the case will run is to be
excluded. Meaning, when you receive the summons, you count
one but today is excluded and of course the last day is included.
And if the last day is the next working day, it is done on the November December December December
next business day. Here, there is an automatic extension. 30 10 15 21
Defendant Defendant Motion to Deadline to
Rule 22, Sec. 2. Effect of interruption. Should received filed a Dismiss is file the
an act be done which effectively interrupts Motion to denied. Answer
the running of the period, the allowable Summons
Dismiss
period after such interruption shall start to
run on the day after notice of the
cessation of the cause thereof.
Alright, let’s go back to Rule 11:
 Sec. 2. Answer of a defendant foreign private
juridical entity. Where the defendant is a
foreign private juridical entity and service
of summons is made on the government
official designated by law to receive the
same, the answer shall be filed within
thirty (30) days after receipt of summons
by such entity. (2a)
3.
The defendant here is a foreign private juridical entity, meaning,
a foreign corporation doing business in the Philippines. In the
first place, one cannot sue a foreign private corporation which is
not doing business in the Philippines because there is no way
that the court can acquire jurisdiction over the person of such
4.
corporation. If the foreign private corporation is doing business
in the Philippines, then one can sue it here in the Philippines.
the proper government office (now the SEC) which
will then send a copy thereof by registered mail
within 10 days to the home office of the foreign
private corporation - within 30 days after receipt of
summons by the home office of the foreign private
entity.
In case of service of summons by publication - within
the time specified in the order granting leave to serve
summons by publication, which shall not be less than
60
days after notice (R 14, Sec. 15; and
In case of a non-resident defendant on whom
extraterritorial service of summons is made, the period
to answer should be at least 60 days.

EXAMPLES: Sun Life of Canada; China Airlines (CAL), Cathay

The court may extend the time to file the pleadings but may not
Pacific, etc.
shorten them (Except in Quo Warranto proceedings)

Q: Now, what is the period to answer when the defendant is a

foreign private corporation doing business in the Philippines?
A: It DEPENDS:
a) When the foreign corporation has a designated
resident agent, the summons shall be served to the
resident agent, and he has 15 days to answer, just like
any defendant in Section 1.
b) On the other hand, if the foreign corporation does not
have any designated resident agent in the Philippines,
then under the Corporation Code, the summons shall
be served to the government official designated by law
to receive the same, who is duty bound to transmit it
to the head office of the corporation abroad. And the
corporation now has 30 days from receipt of summons
to file its answer.
So it is either 15 or 30 days.
Sec.3. Answer to amended complaint. Where
the plaintiff files an amended complaint as
a matter of right, the defendant shall
answer the same within fifteen (l5) days
after being served with a copy thereof.
Where its filing is not a matter of right, the
defendant shall answer the amended
complaint within ten (10) days from notice
of the order admitting the same. An answer
earlier filed may serve as the answer to the
amended complaint if no new answer is
filed.
This Rule shall apply to the answer to an
amended counterclaim, amended
crossclaim, amended third (fourth, etc.)
party complaint, and amended
complaint-in-
intervention. (3a)

Now, what is the period to file an answer to an amended

Q: Now, who is this proper government official designated by law
to receive summons?
A: Generally, it is the Secretary of the Department of Trade and
Industry. But for some types of business, the law may designate
any other official. Like the foreign corporation to be sued is a
foreign insurance company (e.g. Sun Life of Canada), under
Insurance Code, you serve it to the Insurance Commissioner. Or
if it is a foreign bank which has branch here, you serve the
summons to the Superintendent of the Bangko Sentral ng
Pilipinas.
Summary
Answer to a Complaint
1. Within 15 days after service of summons, unless a
different period is fixed by the Court;
complaint?
Under Section 3, there are two (2) periods – first paragraph, 15
days; second paragraph, 10 days. Now what is the
difference?
1) If the filing of an amended complaint is a matter of
right - within 15 days from service of the amended
complaint.
2) If the filing of an amended complaint is not a matter of
right - within 10 days counted from notice of the court
order admitting the same.
The Rule shall apply to the answer to an amended counterclaim,
amended cross-claim; amended third (fourth, fifth, etc. ) party
complaint and amended complaint-in-intervention.

If no new Answer is filed, answer to original pleading shall be

2. In case the defendant is a foreign private juridical
deemed as answer to the amended pleading.
entity:
a. If it has a resident agent - within 15 days after
service of summons to him; Suppose the complaint is amended as a matter of right because
defendant has not yet filed an answer, meaning, the complaint
is served on you and even before you answer it was amended
b. if it has no resident agent, but it has an agent or
and another complaint is served, then you have 15 days to file
officer in the Philippines - within 15 days after
your answer counted from the day of service of the amended
service of summons to said agent or officer;
complaint. So forget the original period and you have 15 days all
over again.
c. if it has no resident agent, nor agent nor officer - in
which case service of summons is to be made on
But suppose the defendant has already answered the original
complaint and then the plaintiff decides to amend his complaint
which under the previous rule, is a matter of judicial discretion.
Now, suppose the court issued an order admitting the amended
complaint and the defendant is furnished a copy of the order
admitting the amended complaint, if he wants to answer the
amended complaint, he has 10 days to do it and not 15 days.
The 10-day period will be counted from service of the order
admitting the amended complaint, not from the service of the
amended complaint because the same may not be admitted.
You wait for the order of the court admitting the amended
complaint.
So, there are two (2) periods to file an answer to an amended
complaint.
Q: Suppose I will not file an answer to the amended complaint. I
filed an answer to the original complaint but I did not file an
answer to the amended complaint, can I be declared in default?
A: NO, because Section 3 provides that the answer earlier filed
may serve as an answer to the amended complaint if no answer
is filed. Like when the amendment is only formal, why will I
answer? In other words, my defenses to the original complaint
are still applicable.
So the principle is: if no answer is filed to the amended
complaint, the answer to the original complaint automatically
serves as the answer to the amended complaint and therefore
the defendant cannot be declared in default.
Alright, the third paragraph of Section 3 is new. It includes
amended counterclaims, amended cross-claims.
Sec. 4. Answer to counterclaim or cross-claim.
A counterclaim or cross-claim must be
answered within ten (10) days from
service.
(4)
Now, if you answer a counterclaim or cross-claim, you have
Section 4. The period to file an answer to a counterclaim or
cross-claim is only ten (10) days from the time it is served.
Q: What happens if the plaintiff does not answer the
counterclaim of the defendant?
A: He can be declared in default on the counterclaim. He has
still standing to prove his cause of action in the main case but
he loses his standing to defend himself in the counterclaim.
Q: Are there instances where an answer to a counterclaim is
optional? Meaning, the plaintiff does not answer and he cannot
be declared in default.
A: YES, that is when the counterclaim is so intertwined with the
main action – they are so intertwined that if the plaintiff would
answer the counterclaim, it would only be a repetition of what
he said in his complaint. In this case, even if the plaintiff will
not answer, he cannot be declared in default.
EXAMPLE: The plaintiff filed a case against the defendant for
damages arising from a vehicular collision. According to the
plaintiff, because of the negligence of the defendant, the
plaintiff’s vehicle was damaged amounting to that much. So the
cause is quasi-delict. Now in his answer, defendant says no and
he denied the liability and he files a counterclaim saying, “As a
matter of fact, it is the plaintiff who is negligent. And since my
vehicle was damaged, I am now claiming damages against him.”
So practically, the issue on negligence is being thrown back.
Now, the plaintiff did not answer the counterclaim, can he be
declared in default?
NO, because if you require the plaintiff to file an answer, what
will he say? The same, “NO, you were the one at fault!”He will
just be repeating what he already alleged.
Sec. 5. Answer to third (fourth, etc.)- party
complaint. The time to answer a third
(fourth, etc.)- party complaint shall be
governed by the same rule as the answer to
the
complaint. (5a)
Sec. 6. Reply. A reply may be filed within ten
(l0) days from service of the pleading
responded to. (6)
The third-party defendant is served with summons just like the
original defendant. Hence, he also has 15, 30 or 60 days from
service of summons, as the case may be, to file his answer.
If you want to file a reply, you have ten (10) days to file. But as a
general rule, the filing of a reply is optional.
Sec. 7. Answer to supplemental complaint. A
supplemental complaint may be answered
within ten (10) days from notice of the
order admitting the same, unless a
different period is fixed by the court. The
answer to the complaint shall serve as the
answer to the supplemental complaint if
no new or
supplemental answer is filed. (n)
It follows the same rule as in Section 3, second paragraph. A
supplemental complaint may be answered in ten (10) days. The
computation is again from notice of the order admitting the
same unless a different period is fixed by the court.
Suppose I will not answer the supplemental complaint? The
same principle – the answer to the original complaint shall serve
as the answer to the supplemental complaint. So it follows the
same principle as the amended complaint in the second
paragraph of Section 3.
Sec. 8. Existing counterclaim or cross-claim. A
compulsory counterclaim or a cross-claim
that a defending party has at the time he
files his answer shall be contained therein.
(8a, R6)
One of the requisites to make a counterclaim compulsory is that
the defending party has the counterclaim at the time he files his
answer. This is related with Section 7, Rule 6.
Sec. 9. Counterclaim or cross-claim arising
after answer. A counterclaim or a cross-
claim which either matured or was
acquired by a party after serving his
pleading may, with the permission of the
court, be presented as a counterclaim or a
cross-claim by supplemental pleading
before judgment. (9, R6)
Sec. 10. Omitted counterclaim or cross-claim.
When a pleader fails to set up a
counterclaim or a cross-claim through
oversight, inadvertence, or excusable
neglect, or when justice requires, he may,
by leave of court, set up the counterclaim
 or cross-claim by amendment before A: YES, upon motion and on such terms as may be just, the
judgment. (3a, R9) court may extend the time to plead.

We already discussed this before. As a matter of fact, Sections 9
and 10 illustrates the distinction between an amended pleading
to a supplemental pleading.
If the counterclaim or cross-claim was acquired by a party after
serving his pleading, he may raise it by way of supplemental
pleading. But if a pleader fails to set up a counterclaim or a
crossclaim which is already matured when he filed his pleading
due to oversight inadvertence or excusable neglect, then he
may raise it by way of amended pleading before judgment. Leave
of court is necessary.
Normally, the lawyer will file a motion for extension of time to
answer on the 15th, the 14th, or the 13th day. That’s very
common. The common reason of the lawyers for the extension is
pressure of work. Others are because of the traditional mañana
habit. We usually act during the deadline.
Take note that when you file your motion for extension, do it
within the original 15-day period. Do not file your motion on the
16th day because there is nothing to extend. So the extension is
usually filed within the 15-day period.

Sec. 11. Extension of time to plead. Upon Q: Now what happens if the lawyer fails to file such a motion?
motion and on such terms as may be just, So the 15 days already expired, then on the 18th, he will now
the court may extend the time to plead file an answer. Now what should the lawyer do?
provided in these Rules.

A: The lawyer can use the second paragraph, “The court may
The court may also, upon like terms, allow
also, upon like terms, allow an answer or other pleading to be
an answer or other pleading to be filed
filed after the time fixed by these Rules.” The correct motion is
after the time fixed by these Rules. (7)
“MOTION TO ADMIT LATE ANSWER.”

Requisites:
EXAMPLE: The deadline is 3 days ago. I failed to file my answer
but now it is ready. So, “motion to admit belated answer.”
1. There must be a motion;
2. With service of such motion to other party; and
Normally, the courts here are liberal in allowing extensions. The
3. On such terms as may be just.
general rule is that the court frowns on default. As such as
possible both sides must be heard. So in the spirit of liberality,
The period to file is 15 or 10 days, but the general rule is 15 courts are usually liberal in allowing these extensions in time to
days. file answers.

Q: Now, is the 15-day period extendible?

SUMMARY OF TIME TO FILE RESPONSIVE PLEADINGS

PLEADING PERIOD

1.) Answer 15
days
2.) Answer of a private foreign corporation
a. with designated Philippine representative 15
b. no designated Philippine 30 days days
representative
3.) Answer to an amended complaint
a. if as a matter of right 15
b. if as a matter of judicial discretion days
10
days
4.) Answer to counterclaim or cross-claim 10
days
5.) Answer to third (fourth, etc.) party 15
complaint days
6.) Reply 10
days
7.) Answer to supplemental complaint 10
days
 Rule 12
BILL OF PARTICULARS
Section 1. When applied for; purpose. Before
responding to a pleading, a party may
move for a definite statement or for a bill
of particulars of any matter which is not
averred with sufficient definiteness or
particularity to enable him properly to
prepare his responsive pleading. If the
pleading is a reply, the motion must be
filed within ten (10) days from service
thereof. Such motion shall point out the
defects complained of, the paragraphs
wherein they are contained, and the
details desired. (1a)
Q: Define Bill of Particulars.
A: A bill of particulars is a more definite statement of any
matter which is not averred with sufficient definiteness or
particularity in a pleading so as to enable the opposing
party to prepare his responsive pleading. (Section 1)
When filed
The motion shall be filed before responding to a pleading. Hence,
it must be filed within the period granted by the Rules (R11) for
the filing of a responsive pleading.
The motion shall point out:
1. The defects complained of;
2. The paragraphs wherein they are contained; and
3. The details desired.
The motion must comply with the requirements for motions
under Secs 4, 5, and 6 of R 15. Otherwise the motion will not
suspend the period to answer (Filipino Fabricator vs. Magsino,
GR No. 47574, Jan. 29, 1988).
Purpose: To aid in the preparation of a responsive
pleading
The purpose of the motion is to seek an order from which court
directing the pleader to submit a bill of particulars which avers
matters with “sufficient definiteness or particularity” to enable
the movant to prepare his responsive pleading (Sec. 1), not to
enable the movant to prepare for trial. Where the purpose of the
movant is to enable him to prepare for trial, the appropriate
remedy is to avail of the discovery procedures from Rules 23 to
29 and even of a pre-trial under Rule 18.
In less technical terms, a function of a bill of particulars is to
clarify the allegations in the pleading so an adverse party may
be informed with certainty of the exact character of a cause of
action or a defense. Without the clarifications sought by the
motion, the movant may be deprived of the opportunity to
submit an intelligent responsive pleading.
When not proper
1) Since the purpose of the motion for bill of particulars
is to allow the movant to properly prepare his own
pleading, it would be erroneous for the motion to ask
the court to order the adverse party to disclose or to
set forth in his pleading the evidences relied upon for
his cause of action or defense. These are matters
obtainable by the various modes of discovery. Besides
under Sec. 1 of Rule 8, pleadings are meant to contain
only a direct statement of the ultimate facts which
constitute the party’s claims or defenses. Matters of
evidentiary facts are to be omitted.
2) It would likewise not be proper for a motion for a bill of
particulars to call for the production of the particulars
constituting malice, intent, knowledge, or condition of
the mind which, under Sec. 5 Rule 8, may be averred
generally. To require a pleader to do so would be to
require the statement of evidentiary facts in a
pleading.
It would not however, be incorrect to move for a bill of
particulars to require the averment of the particular
circumstances of fraud or mistake. Under Sec. 5 Rule
8, such matters must be alleged with particularity.
3) A motion for bill of particulars to require a pleader to
set forth matters showing the jurisdiction of the court
to render its judgment is not proper. The provisions of
 Sec. 6 Rule 8 are clear: In pleading a judgment it is
sufficient to aver the same generally.
In Republic vs. Sandiganbayan 540 SCRA 431, the Court ruled
that an allegation that the “defendant acted” ‘in unlawful
concert’ with the other defendant in illegally amassing assets,
property and funds in amounts disproportionate to the latter’s
income”, is a proper subject of a motion for bill of particulars.
Plaintiff is bound to clarify the specific nature, manner and
extent of the alleged collaboration between the defendants. The
allegation in the complaint does not actually state the ultimate
facts to show the alleged “unlawful concert”. Allegations
couched in general terms are not statements of ultimate facts.
An action cannot be dismissed on the ground that the complaint
is vague or indefinite. The remedy of the defendant is to move
for a bill of particulars or avail of the proper mode of discovery.
(Galeon vs. Galeon GR No. L-30380, Feb. 28, 1973)
Necessary that complaint states a cause of action
As long as the allegations of a complaint make out a cause of
action, the ambiguity in some allegations of the complaint or the
failure to allege facts with sufficient particularity does not
justify the filing of a motion to dismiss. The proper remedy is to
file a motion for a bill of particulars.
To which pleadings directed
It must be made clear that a motion for a bill of particulars is
not directed only to a complaint. It is a motion that applies to
any pleading which in the perception of the movant contains
ambiguous allegations.
EXAMPLE: The plaintiff filed a complaint against you and you
are now furnished with a copy by the lawyer of the plaintiff. So,
you have to file your answer. You have to understand what the
cause of action is all about. So you read the complaint – you
notice that the allegations are vague, ambiguous, and
uncertain. So, you cannot understand the allegations. So, you
have a hard time preparing your answer. Now, you do not want
to answer something that you cannot understand.
Q: So what is your remedy?
A: The remedy is, instead of answering, you file a motion for a
bill of particulars and according to Section 1, your motion will
point out the defects complained of, the paragraphs where they
are contained and the details desired. Because according to you,
the allegations are not averred with sufficient definiteness or
particularity to enable you properly to prepare your responsive
pleading that is what it is all about.
So the defendant resorts to the Bill of Particulars if the
allegations of ultimate facts in the complaint are vague and
ambiguous that the defendant will have difficulty in preparing
his answer. So, he can not understand and will ask for more
details to clear the ambiguities. He will file a motion for Bill of
Particulars, citing the defects and ask for the details, because
how can he prepare an answer if he does not understand the
complaint?
BAR QUESTION: Suppose a complaint is ambiguous, uncertain,
indefinite or vague, can the defendant file a motion to dismiss?
A: NO! A complaint cannot be dismissed simply because it is
vague, ambiguous. (Pañgan vs. Evening News, L-13308, Oct. 29,
1960) The correct remedy is for the defendant to file a motion
for bill of particulars, which will ask for more details on these
vague portions of the complaint. (Amoro vs. Sumaguit, L-14986,
July 31, 1962)
According to the SC in the case of
TAN vs. SANDIGANBAYAN – 180 SCRA 34 [1989]
HELD: “The proper office of a bill of particulars is to inform
the opposite party and the court of the precise nature and
character of the cause of action the pleader has attempted
to set forth, and thereby to guide his adversary in his
preparations for trial and reasonably protect him against
surprise at the trial. It complements the rule on pleadings
in general, that is, that the complaint should consist of a
concise statement of the ultimate facts.”
“Its primary objective is to apprise the adverse party of what
the plaintiff wants — to preclude the latter from springing a
surprise attack later.”
According to the SC, the primary purpose of the bill of
particulars is to apprise the adverse party of what a plaintiff
wants. To preclude the latter from springing a surprise attack
later. Why? Because the plaintiff may deliberately make his
allegations vague, to confuse you – to mislead you – because
you might adopt a different interpretation. If the interpretation
turns out to be different, your defenses might be wrong. So, he
deliberately makes his complaint ambiguous. Now, the other
party should thwart that by asking for a bill of particulars to
compel the plaintiff to make the allegations of his cause of
action clearer. So, that is what the bill of particulars is all
about.
Now, we will go to a specific situation and let’s find out whether
the defendant could file for a bill of particulars.
PROBLEM: Now, suppose the pleader says in his complaint that
he has been in the possession of the litigated property
continuously for forty (40) years. The defendant flied a motion
for a bill of particulars, “The allegations is very broad, very
general, very vague. Please tell by way of particulars what are
the improvements you introduced for the past 40 years. I would
like to ask for these details to clarify your allegations that you
have been in continuous possession of the land for 40 years.”
Q: Is that a proper motion for a Bill of Particulars?
A: NO, because it is asking for evidentiary matters. In the first
place, the plaintiff has no obligation to state the evidentiary
matters in his complaint. It should only state ultimate facts. So,
it is not allowed in the pleading. You cannot ask for that by way
of particulars.
So, what is sought to be remedied are vague and ambiguous
statements of ultimate facts. But you cannot use it to fish for
evidentiary matters. Evidentiary facts cannot be the subject of a
motion for a bill of particulars.
Q: But is it not fair that before trial I should know your
evidentiary matters?
A: I believe it is fair for the defendant to compel the plaintiff to
reveal the details of his ultimate facts but not under Rule 12.
You better avail of the modes of discovery under Rule 23,
depositions, request for admission, etc. But you cannot convert
Rule 12 into a modes of discovery. Each rule has its own
functions.
So, let’s give a good example of an instance, where the
defendant can rightfully ask for more specifics or particulars.
EXAMPLE: The plaintiff will sue the defendant for annulment of
contract on the ground that the defendant employed FRAUD in
getting the consent of the plaintiff. The plaintiff said, “He got my
consent to the contract by fraud.” The defendant filed a motion
for a bill of particulars: “That the defendant employed fraud in
getting plaintiff’s consent is vague, So, I’m asking the plaintiff
should give more specifics. How did I fool you? In what way did I
employ fraud? In what way was the fraud exercised?”
Q: Now, is the motion for a bill of particulars meritorious?
A: YES, because allegations of fraud must be stated with
particularity. So, you go back in Rule 8, Section 5:
Rule 8, Sec. 5 Fraud, mistake, condition of the
mind.—In all averments of fraud or mistake,
the circumstances constituting fraud or
mistake must be stated with particularity. x x
x
We already studied that provision. Therefore, if the allegation of
the plaintiff is simply that the defendant employed fraud, that
allegation is not sufficient because under Rule 8, it must be
stated with particularity. Therefore, if it is not stated with
particularity, the remedy of the defendant is to file a motion for
a bill of particulars under Rule 12.
Q: Suppose, it is the answer which is vague. Suppose ang
answer malabo. It is the other way around. It is the defendant’s
answer which is vague or uncertain. Can the plaintiff file a
motion for bill of particulars to compel he defendant to clarify or
to particularize his vague answer?
A: YES, because the plaintiff can say, “I cannot file my reply. I
mean, I want to file a reply but I can’t file a reply unless I
understand what is your defense.” So it works both ways.
Q: Suppose, it is the reply of the plaintiff to the answer which is
vague or ambiguous. Can the defendant file a motion for bill of
particulars to clarify the vague reply?
A: YES. According to Section 1, the motion is to be filed within
10 days. So even if the reply is vague, it can still be the subject
of the bill of particulars within 10 days because there is no
more responsive pleadings there.
So, every pleading which is vague the other party can always
compel you to make it clearer.
Q: Is this remedy available in criminal cases?
A: YES. If it is the information which is vague, you cannot
understand the allegations in the information, you cannot
plead, “Paano, I cannot enter a plea of guilty or not guilty kasi
hindi ko maintindihan eh” the accused can file a motion for bill
of particulars to require the prosecution to clarify vague
portions of a complaint or information.
There is an identical provision in Rule 116, Section 9 of the
Rules on Criminal Procedure.
RULE 116, SEC. 9. Bill of particulars. – The
accused may, before arraignment, move for a
bill of particulars to enable him properly to
plead and prepare for trial. The motion shall
specify the alleged defects of the complaint or
information and the details desired. (10a)
The concept is the same. If the allegations in the information are
also vague and ambiguous, “I cannot understand it, so I cannot
intelligently enter my plea.” The accused, before arraignment,
can move for a bill of particulars to enable him to prepare
properly for the trial. Then he must specify the defects.
CINCO vs. SANDIGANBAYAN (criminal case) – 202 SCRA 726
[1991]
FACTS: A motion for bill of particulars was filed by the
lawyer of the respondent in the fiscal’s office when the case
was under preliminary investigation. (In preliminary
investigation, you are given the affidavit of the complainant
and his witnesses. And then you are given 10 days to
submit your counter-affidavits.) Here, the affidavit is vague
according to the accused, so he is filing a bill of particulars.
He wanted to compel the complainant to make his affidavit
clearer.
ISSUE: Is Section 9 applicable when the case is still in the
fiscal’s office for preliminary investigation?
HELD: NO. It is only applicable when the case is already in
court for trial or arraignment.
But suppose during the preliminary investigation, “I cannot
understand what the complainant is saying in his affidavit?”
The SC said, that is simple! If you cannot understand what
the complainant is saying in his affidavit, chances are, the
fiscal also will not understand it. And consequently, he will
dismiss the case. Eh di mas maganda! Wag ka na lang mag-
reklamo!
[tanga!]
Sec. 2. Action by the court. Upon the filing of
the motion, the clerk of court must
immediately bring it to the attention of
the court which may either deny or grant
it outright, or allow the parties the
opportunity to be heard. (n)
So pag-file mo ng motion for bill of particulars, the clerk has the
obligation to bring it immediately to the attention of the court
and the court can deny or grant the motion immediately. But of
course, it is up to the court to call for a hearing or not.
Q: Now, what do you think is the reason behind that? Why do
you think is this provision here, which is not found in the old
rules?
A: Many lawyers have abused Rule 12.
In what way? A complaint is filed but even if the allegations are
clear he will file a motion for bill of particulars claiming that he
cannot understand. Then, he will set the motion for hearing 2
weeks from now. Then the motion is denied because it has no
merit, then, and only then will he file an answer. In other words,
the defendant has succeeded in delaying the period for filing an
answer by pretending that he cannot understand.
So in order to prevent that kind of dilatory tactic, when the
motion is filed, the court is now authorized to immediately act
on the motion without delaying the filing of the answer. That is
the reason why this provision was inserted because the filing of
the motion for bill of particulars can cause delay.
Action of the court
Upon receipt of the motion which the clerk of court must
immediately bring to the attention of the court, the latter has
three possible options, namely,
a) to deny the motion outright,
b) to grant the motion outright, or
c) to hold a hearing on the motion.
Sec. 3. Compliance with order. If the motion
is granted, either in whole or in part, the
compliance therewith must be effected
within ten (l0) days from notice of the
order, unless a different period is fixed by
the court. The bill of particulars or a more
definite statement ordered by the court
may be filed either in a separate or in an
amended pleading, serving a copy thereof
on the adverse party. (n)
Q: Suppose the court grants the motion and the defendant or
the plaintiff will be required to submit the bill of particulars.
How will you comply with the order to file a bill of particulars?
A: There are two (2) ways:
1.) Just submit the details of the vague paragraphs; or
2.) Amend the whole pleading and clarify the vague
paragraphs
Period to comply with the order granting the motion - 10 days
from notice of order unless a different period is fixed by the
court.
The Bill of Particulars may be filed either in a separate or in an
amended pleading serving a copy thereof to the adverse party.
Sec. 4. Effect of non-compliance. If the order
is not obeyed, or in case of insufficient
compliance therewith, the court may
order the striking out of the pleading or
the portions thereof to which the order
was directed or make such other order as
it deems just. (1[c]a)
Effect of Non-Compliance
1) If the order is not obeyed or in case of insufficient
compliance, therewith, the court:
a) may order the striking out of the pleading or the
portion thereof to which the order is directed; or
b) make such order as it may deem just.
2) If the plaintiff fails to obey, his complaint may be
dismissed with prejudice unless otherwise ordered by
the court (R 12, Sec. 4; R 17, Sec. 3);
A: Five (5) days. You are guaranteed a minimum of 5 days.
Therefore, if a defendant filed the motion for bill of particulars within 15 days, he
cannot be declared in default. The plaintiff cannot declare the defendant in default for
failure to file an answer because 15 days had already lapsed. It will be interrupted by
the filing of the motion and the period commences to run again from the time he
received the bill of particulars or the order denying his
motion but not less than 5 days in any event.
Sec. 6. Bill a part of pleading. A bill of
particulars becomes part of the pleading for
which it is intended. (1[a]a)
3) If defendant fails to obey, his answer will be stricken
off and his counterclaim dismissed, and he will be
declared in default upon motion of the plaintiff (R 12,
Sec. 4; R 17, Sec. 4; R 9, Sec. 3)
Q: Alright, suppose the motion is granted, the court ordered the
plaintiff to submit a bill of particulars. The plaintiff refused to
comply with the order. What is now the remedy?
A: The court may order the striking out of the pleading or
portions thereof which is the object of the bill of particulars.
Like, when you do not want to clarify your complaint, the judge
will now issue an order to strike out the entire complaint. It is
as if the complaint was never filed. Practically, your complaint
was dismissed. In effect your complaint was dismissed because
if the complaint was ordered stricken out, then it is equivalent
to dismissal of the case itself.
Sec. 5. Stay of period to file responsive
pleading. After service of the bill of
particulars or of a more definite pleading,
or after notice of denial of his motion, the
moving party may file his responsive
pleading within the period to which he was
entitled at the time of filing his motion,
which shall not be less than five (5) days in
any event. (1[b]a)
Effects of Motion
1) If the motion is granted, in whole or in part, the
movant can wait until the bill of particulars is served
on him by the opposing party and then he will have
the balance of the reglementary period within which to
file his
responsive pleading; and
2) If his motion is denied, he will still have such balance
of the reglementary period to file his responsive
pleading, counted from service of the order denying his
motion.
Note: In either case he shall have no less than 5 days to file his
responsive pleading.
ILLUSTRATION: I have 15 days to file an answer. On the 8th
day, I filed a motion for a bill of particulars. On the 8th day, the
running of the period automatically stops and then after several
days, you receive the order. For example, denying your motion,
you still have 7 days to go because the period during which your
motion was pending will not be counted as the 15 day period
was interrupted.
Q: Suppose, you file your motion for a bill of particulars on the
14th day and your motion is denied. You received the order
today. How many days more to file an answer?
When you file a bill of particulars clarifying the paragraphs in the complaint which are
vague, the bill of particulars becomes part of the complaint with its supplements.
Rule 13
FILING AND SERVICE OF PLEADINGS,
JUDGMENTS AND OTHER PAPERS
Section 1. Coverage. This Rule shall govern
the filing of all pleadings and other papers,
as well as the service thereof, except those
for which a different mode of service is
prescribed. (n)
As a general rule, service of all pleadings is governed by Rule 13.
So, this rule governs pleadings “except those for which a
different mode of service is prescribed.” An example of the
exception is the service of complaint which is governed by Rule
14. So Rule 13 applies to all pleadings except complaint.
What is the difference between filing and service of
pleadings? Section 2:
Sec. 2. Filing and service, defined. Filing is
the act of presenting the pleading or other
paper to the clerk of court.
Service is the act of providing a party with
a copy of the pleading or paper concerned.
If any party has appeared by counsel,
service upon him shall be made upon his
counsel or one of them, unless service
upon the party himself is ordered by the
court. Where one counsel appears for
several parties, he shall only be entitled to
one copy of any paper served upon him by
the opposite side. (2a)
When you say FILING, you present the pleading or other papers
to the office of the clerk of court. When you say SERVICE, you
furnish a copy of the pleading or paper concerned to a party, or if
he is represented by a lawyer, you must furnish a copy of the
pleading to the lawyer.
The GENERAL RULE, when a party is represented by a lawyer,
the service should be to the lawyer and not to the party. Service
to a party is not valid. What is valid is service to the counsel.
Service to the lawyer binds the party. But service to the party
does not bind the lawyer and the party, unless the court orders
direct service to the party.
If a party has not appeared by counsel, then common reason
suggests that service must be made upon him.
It has been held that notice or service made upon a party who is
represented by counsel is a nullity. As a rule, notice to the client
and not to his counsel of record is not notice in law unless for
instance when the court or tribunal orders service upon the
party or when the technical defect in the manner of notice is
waived (Heirs of Benjamin Mendoza vs CA GR 170247,
September 17, 2008).
Service upon the parties’ counsel of record is tantamount to
service upon the parties themselves, but service upon the
parties themselves is not considered service upon their lawyers.
The reason is simple – the parties, generally, have no formal
education or knowledge of the rules of procedure, specifically,
the mechanics of an appeal or availment of legal remedies; thus,
they may also be unaware of the rights and duties of a litigant
relative to the receipt of a decision. More importantly, it is best
for the courts to deal only with one person in the interest of
orderly procedure – either the lawyer retained by the party or
the party himself if he does not intend to hire a lawyer (De los
Santos vs. Elizalde GR 141810 & 141812, February 2, 2007;
Hernandez vs. Clapis, 87 Phil. 437; Javier Logging Corp. vs.
Mardo, L-28188, Aug. 27, 1968)
There was even a case when the client volunteered to get the
copy of the decision. But he party failed to give it to his lawyer.
Is the lawyer bound, or is the party also bound? NO, because
the rule is service to lawyer binds the client and not the other
way around.
So, to avoid all these problems, there must be a uniform rule
UNLESS, the law says, SERVICE UPON THE PARTY HIMSELF
IS ORDERED BY THE COURT.
Example is in the case of
RETONI, JR. vs. CA – 218 SCRA 468 [1993]
HELD: “Usually, service is ordered upon the party himself,
instead of upon his attorney, [1] when it is doubtful who the
attorney for such party is, or [2] when he cannot be located
or [3] when the party is directed to do something personally,
as when he is ordered to show cause.”
There are rare circumstances however where service to the
lawyer doe,s not bind the client. These are cases of negligence;
where the lawyer is in bad faith for gross negligence; where he
deliberately prejudiced his client. So it is unfair that the party
may be bound by the service to the lawyer because of those
circumstances. One such instance happened in the case of
BAYOG vs. NATINO – 258 SCRA 378 [1996]
HELD: “Notice to the lawyer who appears to have been
unconscionably irresponsible cannot be considered as
notice to his client. The application to the given case of the
doctrine that notice to counsel is notice to parties should be
looked into and adopted, according to the surrounding
circumstances; otherwise, in the court’s desire to make a
short cut of the proceedings, it might foster, wittingly or
unwittingly, dangerous collusions to the detriment of
justice. It would then be easy for one lawyer to sell one’s
rights down the river, by just alleging that he just forgot
every process of the court affecting his clients, because he
was so busy.”
Q: Now, if there are 5 defendants in the same case and there is
only one (1) lawyer for all, is the lawyer entitled to 5 copies also?
A: NO, the lawyer is not entitled to 5 copies but only one (1).
Last sentence, “Where one counsel appears for several parties,
he shall only be entitled to one copy of any paper served upon
him by the opposite side.” But if the 5 defendants are
represented by different lawyers, that is another story. Every
lawyer has to be furnished a copy.
Q: Suppose you are represented by three or more lawyers
should every lawyer be served a copy?
A: NO, service on one is sufficient. Section 2 says, “…service
shall be made upon his counsel or one of them…” Service to
one is service to all. You can do it if you want to but service on
one will suffice.
A. FILING OF PLEADINGS, JUDGMENTS AND OTHER
PAPERS Now, how do you file pleadings? Section 3:
Sec. 3. Manner of filing. The filing of
pleadings, appearances, motions, notices,
orders, judgments and all other papers
shall be made by presenting the original
copies thereof, plainly indicated as such,
personally to the clerk of court or by
sending them by registered mail. In the
first case, the clerk of court shall endorse
on the pleading the date and hour of filing.
In the second case, the date of the mailing
of motions, pleadings, or any other papers
or payments or deposits, as shown by the
post office stamp on the envelope or the
registry receipt, shall be considered as the
date of their filing, payment, or deposit in
court. The envelope shall be attached to
the record of the case.
(1a)
Now, judgments. It must be filed. Why will the court file its own
judgment before itself? Actually, the judge has to file his
decision before the court. Read Rule 36, Section 1:
Rule 36, Section 1. Rendition of judgments
and final orders. A judgment or final order
determining the merits of the case shall be
in writing personally and directly prepared
by the judge, stating clearly and distinctly
the facts and the law on which it is based,
signed by him, and filed with the clerk of
the court.
(1a)
So, the judge has to file his own decision to make it official.
Under Section 3, there are two (2) modes of filing – either
1) Personal by presenting the original copy of the
pleading, notice, appearance, motion, order or
judgment,
personally to the clerk of court; or
2) by registered mail
First Mode of Filing: PERSONAL FILING
This mode of filing is done personally to the clerk of court. You
go to the court and the court will mark it RECEIVED on
January 15, 1998, 9:00 a.m. Then, that is deemed filed. That is
personal filing.
Section 3 says, “…by presenting the original copies thereof,
plainly indicated as such personally to the clerk of court…”
There was a lawyer before who referred to me. He said he filed a
complaint. There are many copies of it. The court will usually
receive 2 or 3 copies – 1 for itself, 1 for the defendant to be
served with summons.
Second Mode of Filing: FILING BY REGISTERED MAIL
The other mode is by registered mail. It is not ordinary mail. It is
filing through the registry service and made by depositing the
pleading in the post office and not through any other means of
transmission.
If a private carrier is availed of by the party, the date of actual
receipt by the court of such pleading and not the date of
delivery to the private carrier, is deemed to be the date of the
filing of that pleading (Benguet Electric Cooperative Inc. vs.
NLRC, GR No. 89070 May 18, 1992)
Q: What is the importance of registered mail on filing of
pleadings and motions in court?
A: The importance is the rule that in registered mails, the date
of filing is the date of mailing. If you send the pleading through
the Post Office by registered mail, the date of filing is not the
date on which the letter reached the court but on the day that
you mailed it. So the date on the envelope is officially the date of
filing.
Q: Now, suppose I will file my pleading not by registered mail
but through messengerial service like LBC or JRS Express
delivery, or by ordinary mail? What is the rule if instead of the
registered service of the Post Office, you availed the private
messengerial service or by ordinary mail?
A: The mailing in such cases is considered as personal filing
and the pleading is not deemed filed until it is received by the
court itself.
When it is by registered mail, the date of mailing as shown by
the Post Office stamp is considered as the date of filing. The
envelope is attached. The post office is automatically a
representative of the court for the purpose of filing. In other
words, the law treats the messengerial company only as your
process helper. That is why in the 1994 case of
INDUSTRIAL TIMBER CORP. vs. NLRC – 233 SCRA 597
[1994]
HELD: “Where a pleading is filed by ordinary mail or by
private messengerial service, it is deemed filed on the day it
is actually received by the court, not on the day it was
mailed or delivered to the messengerial service.”
What about filing by FAX machine? In the case of
GARVIDA vs. SALES, JR. - April 18, 1997
HELD: “Filing a pleading by facsimile transmission is NOT
sanctioned by the Rules of Court. A facsimile is not a
genuine and authentic pleading. It is, at best, an exact copy
preserving all the marks of an original. Without the original,
there is no way of determining on its face whether the
facsimile pleading is genuine and authentic and was
originally signed by the
party and his counsel. It may, in fact, be a sham pleading.”
Q: Now, how do you prove that really the pleading was filed?
A: Section 12. This is a new rule on how to prove that a pleading
is filed –
Sec. 12. Proof of filing. The filing of a
pleading or paper shall be proved by its
existence in the record of the case. If it is
not in the record, but is claimed to have
been filed personally, the filing shall be
proved by the written or stamped
acknowledgment of its filing by the clerk
of court on a copy of the same; if filed by
registered mail, by the registry receipt and
by the affidavit of the person who did the
mailing, containing a full statement of the
date and place of depositing the mail in
the post office in a sealed envelope
addressed to the court, with postage fully
prepaid, and with instructions to the
postmaster to return the mail to the
sender after ten (10) days if not delivered.
(n)
Q: Suppose I filed it in court PERSONALLY, but it is not there,
therefore, there is no showing that I filed it in court personally.
So how do I prove it?
A: Just show your copy which is duly stamped and received by
the court. Definitely, the fault is not yours but with the clerk of
court.
Q: If filed by REGISTERED MAIL. Suppose the court has no
copy of it, it had been lost between the post office and the
court?
A: Prove it by presenting the registry receipt and the affidavit of
the server,
a. containing a full statement of the date and place of
depositing the mail in the post office in a sealed
envelope addressed to the court;
b. with postage fully paid and
c. with instructions to the postmaster to return the mail
to the sender after 10 days if undelivered.
It must be stressed that the affidavit is very important.
B. SERVICE OF PLEADINGS, JUDGMENTS AND OTHER
PAPERS
Sec. 4. Papers required to be filed and served.
Every judgment, resolution, order,
pleading subsequent to the complaint,
written motion, notice, appearance,
demand, offer of judgment or similar
papers shall be filed with the court, and
served upon the parties
affected. (2a)
Under the law, before you file, there must be service to the
opposing party’s counsel. And all documents, as a rule, shall be
filed to the court and served to the parties affected. Or, all
pleadings SUBSEQUENT to the complaint…. Why subsequent’?
Meaning, answer, counterclaim, cross-claim.
Q: Do you mean to tell me the complaint does not have to be
served to the defendant by the plaintiff?
A: Of course not! It is the sheriff who will serve it to the
defendant. So, the plaintiff does not really have to go to the
defendant to serve the complaint. The complaint is brought to
the court because the summons will be issued.
But if you are the defendant’s lawyer, you go directly to the
plaintiff’s lawyer to serve the answer because an answer is a
pleading ‘subsequent’ to the complaint. Moreover, the manner of
serving complaint is not governed by 13 but by Rule 14.
Alright, every paper is required to be filed and served. Some
people do not understand this – “Every judgment, resolution,
order… shall be filed with the court and served to the parties...”
Well of course, with respect to pleadings, motions, etc., you file
and serve because there must be proof of service to the adverse
party.
Sec. 5. Modes of service. Service of
pleadings, motions, notices, orders,
judgments and other papers shall be made
either personally or by mail. (3a)
Q: How do you SERVE a pleading to the opposite party?
A: Either:
1) personally (Sec. 6)or
2) by mail (Sec. 7); or
 3) Substituted service under Section 8 in case of failure
of the personal service or by registered mail
PERSONAL SERVICE OF PLEADINGS
Sec. 6. Personal service. Service of the papers
may be made by delivering personally a copy
to the party or his counsel, or by leaving it in
his office with his clerk or with a person
having charge thereof. If no person is found in
his office, or his office is not known, or he has
no office, then by leaving the copy, between
the hours of eight in the morning and six in
the evening, at the party's or counsel's
residence, if known, with a person of sufficient
age and discretion then residing therein. (4a)
Personal service under Section 6 is the preferred mode of service
(Sec. 11; Uy vs. Medina 342 SCRA 393).
If another mode is used, the service must be accompanied by a
written explanation why the service or filing was not done
personally. Exempt from his explanation are papers emanating
from the court. A violation of this explanation requirement may
be cause for the paper to be considered as not having been filed.
In Marinduque Mining and Industrial Corporation, GR 161219,
October 6, 2008, petitioners maintain that the trial court should
have considered the notice of appeal as not filed at all because
respondent (NAPOCOR) failed to comply with the rule under
Sec. 11 requiring that the service and filing of pleadings and
other papers shall be done personally. On the other hand,
respondent argues that the rules allow resort to other modes of
service and filing as long as the pleading was accompanied by a
written explanation why service or filing was not done
personally. Respondent maintains that it complied with the
rules because the notice of appeal contained an explanation
why it resorted to service and filing by registered mail – due to
lack of manpower to effect personal service.
The Court held:
“Under Sec. 11, Rule 13 of the Rules, personal service of
pleadings and other papers is the general rule while resort to
the other modes of service and filing is the exception. When
recourse is made to the other modes, a written explanation why
service or filing was not done personally becomes indispensable.
If no explanation is offered to justify resorting to the other
modes, the discretionary power of the court to expunge the
pleading comes into play.
In this case, NAPOCOR complied with the Rules. NAPOCOR’s
notice of appeal was served and filed by registered mail – due to
lack of manpower to effect personal service. This explanation is
acceptable for it satisfactorily shows why personal service was
not practicable. (Citing Solar Team Entertainment, Inc. vs.
Ricafort, 355 Phil. 404; Public Estates Authority vs. Caoibes,
371 Phil. 688).
How are pleadings served personally?
Personal service is made by:
(a) delivering a copy of the papers served personally to the
party or his counsel, or
(b) by leaving the papers in his office with his clerk or a
person having charge thereof. If no person is found in
the office, or his office is not known or he has no office,
(c) then by leaving a copy of the papers at the party’s or
counsel’s residence, if known, with a person of
sufficient age and discretion residing therein between
eight in the morning and six in the evening. (Sec. 6)
Now, let us go to some cases on personal service. The case of
PLDT vs. NLRC – 128 SCRA 402 [1984]
FACTS: The office of the lawyer is on the 9th floor of a
building in Makati. So, siguro, sira iyong elevator, gikapoy
iyong process server, what he did was, he left the copy of
the judgment to the receiving station at the ground floor.
ISSUE: Was there a valid service?
HELD: NO. The address of the lawyer is at the 9th floor. So,
you serve it on the 9th floor and not at the ground floor with
somebody who is not even connected with the law office.
“Notices to counsel should properly be sent to the address of
record in the absence of due notice to the court of change of
address. The service of decision at the ground floor of a
party’s building and not at the address of record of the
party’s counsel on record at the 9th floor of the building
cannot be considered a valid service.”
“Service upon a lawyer must be effected at the exact given
address of the lawyer and not in the vicinity or at a general
receiving section for an entire multi-storied building with
many offices.”
But the case of PLDT should not be confused with what
happened in the case of
PCI BANK vs. ORTIZ – 150 SCRA 680 [1987]
FACTS: This time, the office of the lawyer is located on the
5th floor. And again, the habit of the process server is that
instead of going to the 5th floor, he would just approach the
receiving station on the ground floor. Now, of course the
receiving clerk, everytime the lawyer passes by, gave it to
the lawyer. And the lawyer here did not question the
practice.
Now, when a decision against PCI Bank was served, the
lawyer claimed they are not bound because there was no
proper service.
ISSUE: Was there proper service?
HELD: While is true that the service was improper, but the
trouble is, it was going on for some time and you are not
complaining. So, the ground floor becomes your adopted
address.
“They cannot now disown this adopted address to relieve
them from the effects of their negligence, complacency or
inattention. Service, therefore, of the notice of judgment at
the ground floor of the building, should be deemed as
effective service.”
So, the judgment became final. There was no appeal. Those are
examples of personal service.
In one case, service of the COA resolution was made to the
resident corporate auditor of the petitioner DBP. The auditor
holds office in the premises of petitioner DBP and is actually an
employee of the COA assigned to DBP by COA.
Respondent COA contends that the service of the COA
resolution to petitioner’s resident corporate auditor is
tantamount to a service upon the petitioner itself. Petitioner, on
the other hand, argues that the resident corporate auditor is not
its employee but that of the respondent.
The SC agreed with the contention of the DBP that the resident
corporate auditor of the DBP is neither an official nor an
employee of the DBP. He does not come within the definition of
“clerk or person having charge” of the office that may be validly
served with a copy of the resolution of the respondent as
contemplated by the Rules. In fact, the resident corporate
auditor is an extension of the respondent COA and no
department of the petitioner was actually served with a copy of
the resolution. (DBP v.COA GR 166933 August 10, 2006).
Q: So, when is personal service complete?
A: It is completed upon actual delivery.
a) By handling a copy to defendant; or
b) tendering him a copy if he refuses.
Sec. 10. Completeness of service. Personal
service is complete upon actual delivery.
Service by ordinary mail is complete upon
the expiration of ten (10) days after
mailing, unless the court otherwise
provides. Service by registered mail is
complete upon actual@ receipt by the
addressee, or after five (5) days from the
date he received the first notice of the
postmaster, whichever date is earlier. (8a)
SERVICE OF PLEADINGS BY MAIL
Sec. 7. Service by mail. Service by
registered mail shall be made by
depositing the copy in the office, in a
sealed envelope, plainly addressed to the
party or his counsel at his office, if known,
otherwise at his residence, if known, with
postage fully pre-paid, and with
instructions to the postmaster to return
the mail to the sender after ten (l0) days if
undelivered. If no registry service is
available in the locality of either the
sender or the addressee, service may be
done by ordinary mail. (5a; as amended by
En Banc Resolution, Feb. 17, 1998)
Now, SERVICE BY MAIL. You can also serve your pleadings by
mail. You will notice this time although the law prefers service
by registered mail, however, the last sentence of Section 7 says,
“If no registry service is available in the locality of either the
sender or the addressee, service may be done by ordinary mail.”
Take note, comparing Section 7 with Section 3, service by
ordinary mail may be allowed for purposes of service (Section 7),
but for purposes of filing (Section 3), the law does not recognize
the ordinary mail. If you do it, it will be treated as personal
filing. In registered mail, the date of receipt is considered the
date of filing not the date of mailing.
Q: Now, when is service by mail deemed complete?
A: Section 10:
Sec. 10. Completeness of service. xxxxxx
Service by ordinary mail is complete upon
the expiration of ten (10) days after
mailing, unless the court otherwise
provides.
Service by registered mail is complete
upon actual receipt by the addressee, or
after five (5) days from the date he
received the first notice of the
postmaster,xxx
Note: whichever date is earlier. (8a)
So that is for the people who refuse to claim their mail even if
they are already notified. He knows it is an order he expects to
be adverse so he will try to defeat the service by not claiming it.
NO, you are at a disadvantage because after the expiration of so
many days, service is deemed completed. That is what you call
CONSTRUCTIVE SERVICE. So, a party or a lawyer cannot
defeat the process of the law by simply not claiming his mail.
You can be bound by a decision which you never read. That is
constructive service.
SUBSTITUTED SERVICE OF PLEADINGS
Sec. 8. Substituted service. If service of
pleadings, motions, notices, resolutions,
orders and other papers cannot be made
under the two preceding sections, the
office and place of residence of the party
or his counsel being unknown, service may
be made by delivering the copy to the clerk
of court, with proof of failure of both
personal service and service by mail. The
service is complete at the time of such
delivery. (6a)
This mode is availed of only when there is failure to effect
service personally or by mail. This failure occurs when the office
and residence of the party or counsel is unknown (Sec. 8).
Substituted service is effected by delivering the copy to the clerk
of court, with proof of failure of both personal service and service
by mail (Sec. 8).
How to prove service
Sec. 13. Proof of service. Proof of personal
service shall consist of a written
admission of the party served, or the
official return of the server, or the
affidavit of the party serving, containing a
full statement of the date, place and
manner of service. If the service is by
ordinary mail, proof thereof shall consist
of an affidavit of the person mailing of
facts showing compliance with section 7 of
this Rule. If service is made by registered
mail, proof shall be made by such affidavit
and the registry receipt issued by the
mailing office. The registry return card
shall be filed immediately upon its receipt
by the sender, or in lieu thereof the
unclaimed letter together with the
certified or sworn copy of the notice given
by the postmaster to the addressee. (10a)
Q: How do you prove that you furnished the opposing lawyer a
copy by PERSONAL SERVICE?
A: It is
a) through the written admission of the party served as
admitted that he had been furnished with a copy.
b) The other alternative is that you file the affidavit of
your employee, or messenger, that he served the copy
in the office of so and so. (containing full statement of
facts).
c) Or, the official return of the server for judgments,
orders, etc., from the court.
The procedure is that there is a pleading and in the last portion
there is that part which states:
Copy received : January 16, 1998
By : (Signed) Atty. X
Counsel of Plaintiff
Q: If it is by ORDINARY MAIL, how do you prove in court that
you served a copy?
A: If it is ordinary mail, proof thereof shall consist of an affidavit
of the person mailing of facts showing compliance with Section
7.
Q: If it is by REGISTERED MAIL, how do you prove in court that
you served a copy?
A: If service is made by registered mail, proof shall consist of
a) the affidavit of the mailer and
b) the registry receipt issued by the mailing office.
The registry return card shall be filed immediately upon its
receipt by the sender. Or, in lieu thereof, of the unclaimed letter
together with the certified or sworn copy of the notice given by
the postmaster – that is a constructive service.
Now in practice among lawyers when we serve by registered
mail, we only attach the original in the registry receipt and there
is a quotation there in the original pleading, “Copy sent by
registered mail, this 17th day of January, 1998 to Atty. Juan
dela Cruz, counsel for the plaintiff per registry receipt no. 123
hereto attached,” and nobody complains.
But in reality, the law does not allow that. There must be an
affidavit of the person who mailed it. The surrender of a registry
receipt alone is not sufficient because if you send the registry
receipt, it is not reflected to whom that letter is addressed so
how will the court know that the registry receipt really
corresponded to the pleading that you mailed? It might be
another letter like a love letter for your girlfriend or a letter to
your creditor. The registry receipt will not indicate kung ano ang
na-mailed to his address. But we just allow it because it is too
tedious – everytime you file, affidavit?!!
But take note, the CA and the SC enforce this strictly. Even if
you mail a petition at may nakalagay na “Copy sent by
registered mail” without the affidavit, outright dismissal yan for
lack of proof of service. The SC and the CA are very strict about
this requirement.
SERVICE OF DECISIONS, ORDERS, ETC.
Sec. 9. Service of judgments, final orders or
resolutions. Judgments, final orders or
resolutions shall be served either
personally or by registered mail. When a
party summoned by publication has failed
to appear in the action, judgments, final
orders or resolutions against him shall be
served upon him also by publication at the
expense of the prevailing party. (7a)
There are three (3) modes again of serving court orders or
judgments to parties:
1) personally;
2) registered mail; or
3) service by publication, if a party is summoned by
publication and has failed to appear in the action.
Note: No substituted service
Court orders or judgments orders have to be served also, either
personally or by registered mail. That’s why if you go to the
court, there are employees there who are called process servers.
Everyday, they go around from law office to law office to serve
court orders, notices and judgments. And that is personal
service. But if the lawyer is a Manila lawyer, or is out of town,
chances are the clerk of court will apply registered mail.
Under Section 9, there is a third mode of service of court orders
and judgments and that is service by publication. That is if the
parties were summoned by publication under Rule 14 and they
did not appear. The judgment is also served to them by
publication at the expense of the prevailing party.
Sec. 11. Priorities in modes of service and
filing. Whenever practicable, the service
and filing of pleadings and other papers
shall be done personally. Except with
respect to papers emanating from the
court, a resort to other modes must be
accompanied by a written explanation
why the service or filing was not done
personally. A violation of this Rule may be
cause to consider the paper as not filed.
(n)
That is a radical provision. In other words, there are two (2)
ways of service and filing: personal or by mail. And the law says,
personal service is preferred to mail. Meaning, personal service
is prioritized. Q: Suppose you served the opposing counsel by
mail.
A: The law requires that you must give an explanation why you
resorted to mail and not to personal service.
Q: Suppose I will file it without any explanation.
A: The law says, “A violation of this rule may be cause to
consider the paper as not filed.” And that is a very radical rule..
EXAMPLE: the opposing counsel is in Manila, and the case is in
Davao. He will mail to you the pleading or motion and then,
include the following: “Explanation: I have to resort to registered
mail because it is expensive for me to resort to personal service.
It is expensive if I will send my messenger to Davao just to serve
whereas if I send by registered mail, it will only cost me P5.00.”
They have to state that.
Now, I think the purpose of this new provision has been
provoked by some malpractices of the lawyers. There were some
instances before which have been confirmed especially in Metro
Manila. The opposing counsel is holding office just across the
street and he will send a motion to be received today. Instead of
serving you, he will mail it. They will deliberately do it because it
could not reach you on time. I think if you do that, I will not
consider your motion.
Take note that courts are not covered by Section 11. It only
applies to lawyers and parties. The court does not have to
explain why it resorted to registered mail because Section 11
says, “Whenever practicable, the service and filing of pleadings
and other papers shall be done personally EXCEPT WITH
RESPECT TO PAPERS EMANATING FROM THE COURT.”
So the court is not obliged to give any explanation, only the
parties and their lawyers.
SOLAR TEAM ENTERTAINMENT vs. RICAFORT – 293 SCRA
661
[August 5, 1998]
FACTS: Solar Team filed before the RTC a complaint against
Felix Co. Summons and copies of the complaint were
forthwith served on Co. Co then filed his answer. A copy
thereof was furnished counsel for Solar Team by registered
mail; however, the pleading did not contain any written
explanation as to why service was not made personally
upon Solar Team, as required by Section 11 of Rule 13.
Solar Team filed a motion to expunge the answer and to
declare Co in default, alleging therein that Co did not
observe the mandate of Section 11. RTC issued an order
stating that under Section 11 of Rule 13, it is within the
discretion of the RTC whether to consider the pleading as
filed or not, and denying, for lack of merit, Solar Team’s
motion to expunge.
HELD: “Pursuant to Section 11 of Rule 13, service and filing
of pleadings and other papers MUST, whenever practicable,
be done personally; and if made through other modes, the
party concerned must provide a written explanation as to
why the service or filing was not done personally. Note that
Section 11 refers to BOTH service of pleadings and other
papers on the adverse party or his counsel as provided for
in Sections 6, 7 and 8; and to the filing of pleadings and
other papers in court.”
“Personal service will do away with the practice of some
lawyers who, wanting to appear clever, resort to the
following less than ethical practices: serving or filing
pleadings by mail to catch opposing counsel off-guard, thus
leaving the latter with little or no time to prepare, for
instance, responsive pleadings or an opposition; or, upon
receiving notice from the post office that the registered
parcel containing the pleading of or other paper from the
adverse party may be claimed, unduly procrastinating
before claiming the parcel, or, worse, not claiming it at all,
thereby causing undue delay in the disposition of such
pleading or other papers.”
“If only to underscore the mandatory nature of this
innovation to our set of adjective rules requiring personal
service whenever practicable, Section 11 then gives the
court the discretion to consider a pleading or paper as not
filed if the other modes of service or filing were resorted to
and no written explanation was made as to why personal
service was not done in the first place. The exercise of
discretion must, necessarily, consider the practicability of
personal service, for Section 11 itself begins with the clause
‘whenever
practicable.’”
“We thus take this opportunity to clarify that under Section 11:
Personal service and filing is the GENERAL RULE, and
resort to other modes of service and filing, the EXCEPTION.
Henceforth, whenever personal service or filing is practicable, in
light of the circumstances of time, place and person, personal
service or filing is mandatory. Only when personal service or
filing is not practicable may resort to other modes be had, which
must then be accompanied by a written explanation as to why
personal service or filing was not practicable to begin with.”
“Of course, proximity would seem to make personal service most
practicable, but exceptions may nonetheless apply such as
when: the adverse party or opposing counsel to be served with a
pleading seldom reports to office and no employee is regularly
present to receive pleadings, or service is done on the last day of
the reglementary period and the office of the adverse party or
opposing counsel to be served is closed, for whatever reason.”
“However in view of the proximity between the offices of
opposing counsel and the absence of any attendant explanation
as to why personal service of the answer was not effected,
indubitably, Co’s counsel violated Section 11 and the motion to
expunge was prima facie meritorious. However, the grant or
denial of said motion nevertheless remained within the sound
exercise of the RTC's discretion.”
“To Our mind, if motions to expunge or strike out pleadings for
violation of Section 11 were to be indiscriminately resolved
under Section 6 of Rule 1, then Section 11 would become
meaningless and its sound purpose negated.
Nevertheless, We sustain the challenged ruling of the RTC, but
for reasons other than those provided for in the challenged
order.”
“The 1997 Rules of Civil Procedure took effect only on 1 Jul
1997, while the answer was filed only on 8 Aug 1997, or on the
39th day following the effectivity of the 1997 Rules. Hence, Co’s
counsel may not have been fully aware of the requirements and
ramifications of Section 11. It has been several months since
the 1997 Rules of Civil Procedure took effect. In the interim, this
Court has generally accommodated parties and counsel who
failed to comply with the requirement of a written explanation
whenever personal service or filing was not practicable, guided,
in the exercise of our discretion, by the primary objective of
Section 11, the importance of the subject matter of the case, the
issues involved and the prima facie merit of the challenged
pleading.”
“However, as we have in the past, for the guidance of the Bench
and Bar, strictest compliance with Section 11 of Rule 13 is
mandated one month from promulgation of this Decision.”
“WHEREFORE, the instant petition is DISMISSED considering
that while the justification for the denial of the motion to
expunge the answer (with counterclaims) may not necessarily be
correct, yet, for the reasons above stated, the violation of
Section 11 of Rule 13 may be condoned.”
Sec. 13. Proof of service. Proof of personal
service shall consist of a written admission
of the party served, or the official return of
the server, or the affidavit of the party
serving, containing a full statement of the
date, place and manner of service. If the
service is by ordinary mail, proof thereof
shall consist of an affidavit of the person
mailing of facts showing compliance with
section 7 of this Rule. If service is made by
registered mail, proof shall be made by
such affidavit and the registry receipt
issued by the mailing office. The registry
return card shall be filed immediately upon
its receipt by the sender, or in lieu thereof
 the unclaimed letter together with the
certified or sworn copy of the notice given
by the postmaster to the addressee. (10a)
This has been discussed already.
Let’s go to this topic of CONSTRUCTIVE SERVICE that if the
registered mail was not received and therefore you want to avail
of the rules on constructive service – it is deemed served upon
the expiration of so many days. What you will file in court is the
unclaimed letter together with a certified or sworn copy of the
notice given by the postmaster to the addressee. Let us see what
happened in the case of
JOHNSON AND JOHNSON PHILS. vs. CA – 201 SCRA 768
[1991]
FACTS: The CA served Johnson and Johnson Philippines a
decision in an envelope by registered mail. After a while, the
same envelope was returned to the CA. On the face of the
envelope, it as written, “Return to Sender, Unclaimed.” On
the back of the envelope, there is an annotation “Return to
CA”.
With that, the CA applied the rule on constructive service –
considered the decision as already served. Johnson and
Johnson Philippines questioned it. It never received any
notice from the post office. But according to the CA, it is
very obvious. It is there in the envelope still sealed.
ISSUE: Is there proper application of the rules on constructive
service?
HELD: There is NO constructive service because there is no
certification by the postmaster that is claimed. This is what the
law requires not just a one sentence statement. One cannot
even ascertain who wrote the statement. Certification should
include the details of delivery and not just state that notice was
issued.
“A certification from the postmaster would be the best evidence
to prove that the notice has been validly sent. The mailman may
also testify that the notice was actually delivered. The
postmaster should certify not only that the notice was issued or
sent but also as to how, when and to whom the delivery thereof
was made.”
“There is nothing in the records of the present case showing
how, when and to whom the delivery of the registry notices of
the subject registered mail of petitioner was made and whether
said notices were received by the petitioner. The envelope
containing the unclaimed mail merely bore the notation
“RETURN TO SENDER: UNCLAIMED” on the face thereof and
“Return to: Court of Appeals” at the back. The respondent court
should not have relied on these notations to support the
presumption of constructive service.” The case of JOHNSON was
reiterated in
SANTOS vs. CA – 293 SCRA 147 [Sept. 3, 1998]
FACTS: Jesus Santos, was sued for damages on by Omar
Yapchiongco before the CFI. CFI dismissed the complaint for
lack of merit. CA reversed and declared Santos liable for
damages.
On 15 June 1995, the decision of the CA was sent by registered
mail to Santos’ counsel, Atty. Magno. On the same day, the
corresponding notice of registered mail was sent to him. The
mail remained unclaimed and consequently returned to the
sender. After 3 notices, the decision was returned to the sender
for the same reason.
On 27 September 1995, a notice of change of name and address
of law firm was sent by Atty. Magno to CA. On 28 March 1996,
the same decision of CA was sent anew by registered mail to
Atty. Magno at his present address which he finally received on
3 April 1996. On 17 April 1996, Magno withdrew his
appearance as counsel for Santos.
On 18 April 1996, Santos’ new counsel, Atty. Lemuel Santos,
entered his appearance and moved for reconsideration of CA's
decision of 6 June 1995. Yapchiongco opposed the motion on
the ground that the period for its filing had already expired.
HELD: “The rule on service by registered mail contemplates 2
situations:
(1) Actual service - the completeness of which is
determined upon receipt by the addressee of the
registered mail;
(2) Constructive service - the completeness of which is
determined upon the expiration of 5 days from the
date of first notice of the postmaster without the
addressee having claimed the registered mail.”
“For completeness of constructive service, there must be
conclusive proof that Santos’s former counsel or somebody
acting on his behalf was duly notified or had actually
received the notice, referring to the postmaster's
certification to that effect.”
“Here, Santos failed to present such proof before CA but
only did so in the present proceedings. Clearly then, proof
should always be available to the post office not only of
whether or not the notices of registered mail have been
reported delivered by the letter carrier but also of how or to
whom and when such delivery has been made.”
“Consequently, it cannot be too much to expect that when
the post office makes a certification regarding delivery of
registered mail, such certification should include the data
not only as to whether or not the corresponding notices
were issued or sent but also as to how, when and to whom
the delivery thereof was made. Accordingly, the certification
in the case at bar that the first and second notices
addressed to Atty. Magno had been "issued" can hardly
suffice the requirements of equity and justice. It was
incumbent upon the post office to further certify that said
notices were reportedly received.”
This last section, Section 14, has something to do with real
actions, land titles – notice of lis pendens.
Sec. 14. Notice of lis pendens. In an action
affecting the title or the right of
possession of real property, the plaintiff
and the defendant, when affirmative relief
is claimed in his answer, may record in the
office of the registry of deeds of the
province in which the property is situated
a notice of the pendency of the action.
Said notice shall contain the names of the
parties and the object of the action or
defense, and a description of the property
in that province affected thereby. Only
 from the time of filing such notice for
record shall a purchaser, or encumbrancer
of the property affected thereby, be
deemed to have constructive notice of the
pendency of the action, and only of its
pendency against the parties designated by
their real names
The notice of lis pendens hereinabove
mentioned may be cancelled only upon
order of the court, after proper showing
that the notice is for the purpose of
molesting the adverse party, or that it is
not necessary to protect the rights of the
party who caused it to be recorded. (24a,
R14)
This used to be in Rule 14 of the 1964 Rules of Court where it
was misplaced. I do not know why notice of lis pendens which
refers to lands, titles and deeds appears under the rules on
Summons. It was misplaced so they place it under Rule 13
which is also misplaced.
NOTICE OF LIS PENDENS is a notice of pending action or
litigation between the parties involving title to or right of
possession over real property.
Requisites:
1) Action affects the title or the right of possession of a
real property;
2) Affirmative relief is claimed;
3) Notice shall contain the name of the parties and the
object of the action or defense and a description of the
property affected thereby; and
4) Action in rem (AFP Mutual Benefit Association, Inc. vs.
CA GR No. 104769, March 3, 2000)
This serves as a warning to all persons that a particular real
property is in litigation, and that one who acquires an interest
over said property does so at his own risk, or that he gambles
on the result of the litigation over said property (Lee Tek Sheng
vs. CA, GR No. 115402, July 15, 1998)
It may involve actions that deal not only with the title or
possession of a real property, but even with the use or
occupation thereof. (Ake hernudd, Gosta Jansbo, Hans
ryngelsson, Peter Lofgren and Jordana Holdings Corporation,
for itself and on behalf of San Remo Development Corp. Inc., vs.
Lars E. Lofgren, Liza Salcedo-Lofgren, Leosyl Salcedo and San
Remo Development, Inc., GR No. 140337, Sept. 27, 2007).
The defendant may also record a notice of lis pen dens when he
claims an affirmative relief in the answer.
This is part of the Property Registration Law. The essence of
notice of lis pendens is a notice against the whole world against
sale or mortgage of the property under litigation. And whoever
deals with it is accepting the risk. Anybody who buys it is
gambling on the outcome of the case. He cannot claim he is the
mortgagee or buyer in good faith because there is a notice.
I will file a case for recovery of a piece of land and the title is in
your name. There is a danger that you will sell the land to
others who know nothing about the case. So if I win the case
and try to recover it to the buyer, the buyer will say he bought
the land in good faith, “I did not know that there is a pending
action concerning this land.” And under the law, he is protected
because he is a buyer in good faith and for value. This is if there
is no notice of lis pendens. The other risk is that the owner of
the land will mortgage his property.
A person buying a property with a notice of lis pendens is
buying it subject to the outcome of the case. So you are
gambling.
Now, as GENERAL RULE, the one who registers a notice of
lis pendens is the plaintiff.
Exception:
Q: Under Section 14, can the defendant register a notice of lis
pendens?
A: YES. The law states that “The plaintiff and the defendant
may register when affirmative relief is claimed in this answer.”
In such case, a defendant may register and normally it is done
when there is a counterclaim. The defendant is also interposing
a defense with the same property.
Take note that the action in this case affects the right of
possession over real property.
Q: How is a notice of lis pendens cancelled?
A: GENERAL RULE: The notice of lis pendens under the rules
cannot be removed without the order from the court and
generally the court cannot issue the order until the case is
finished or until the final issue of the case is determined.
EXCEPTION: But in some rare instances, the SC has
authorized the cancellation of the notice of lis pendens even
when the case is not yet terminated. One of which is
contemplated under Section 14: “After proper showing that the
notice is: [a] For the purpose of molesting the adverse party; or
[b] It is not necessary to protect the rights of the party who
caused it to be recorded.” In the case of
ROXAS vs. DY – 233 SCRA 643 [1993]
FACTS : Plaintiff filed a case against the defendant to
recover a piece of land registered in the name and
possessed by the defendant. The case has been going on for
more than 1 year, the plaintiff has been presenting evidence
he plaintiff has not yet shown that he has right over the
land.
HELD: So there is no more basis of notice of lis pendens
because your purpose is to harass the defendant for over a
year litigation without showing right over the land.
“While a notice of lis pendens cannot ordinarily be cancelled
for as long as the action is pending and unresolved, the
proper court has the authority to determine whether to
cancel it under peculiar circumstances, e.g., where the
evidence so far presented by the plaintiff does not bear out
the main allegations in the complaint.”
Rule 14
SUMMONS
Section 1. Clerk to issue summons. Upon
the filing of the complaint and the
 payment of the requisite legal fees, the
clerk of court shall forthwith issue the
corresponding summons to the
defendants. (1a)
Summons is the writ by which the defendant is notified of
the action brought against him (Cano-Gutierrez vs.
Gutierrez, 341 SCRA 670; Guanzon vs. Arradaza 510 SCRA
309).
Summons in civil cases is the counterpart of warrant of arrest
in criminal cases. Under the Rules on Criminal Procedure,
when an information is filed in court, the judge will issue a
warrant of arrest. In civil cases, when a complaint is filed in
court, the court will issue what is known as a summons under
Section 1.
The issuance of summons is not discretionary on the part of the
court or the clerk of court but is a mandatory requirement.
Section 1 directs that the clerk of court shall issue the
corresponding summons to the defendant upon
(a) the filing of the complaint, and (b) the
payment of the requisite legal fees.
The use of the term “shall” leaves no doubt as to the mandatory
character of service of summons.
Purpose of summons
Jurisdiction over the person of the defendant in a civil
case is acquired either by his voluntary appearance or service
of summons upon him (Minucher vs. CA GR No. 142963, Feb.
11, 2003)
In actions in personam
In action in personam, the purpose of summons is not only
a) to notify the defendant of the action against him
b) but also to acquire jurisdiction over his person
(Umandap vs. Sabio, Jr. 339 SCRA 243).
The mere filing of the complaint does not enable the court to
acquire jurisdiction over the person of the defendant. By the
filing of the complaint and the payment of the required filing
and docket fees, the court acquires jurisdiction only over the
person of the plaintiff, not over the person of the defendant.
Acquisition of jurisdiction over the latter is accomplished by a
valid service of summons upon him assuming he does not make
a prior voluntary appearance in the action. Service of summons
logically follows the filing of the complaint.
Service of summons is required even if the defendant is aware
of the filing of the action against him. His knowledge of the
existence of a case is not one of the modes by which a court
acquired jurisdiction over the person of the defendant (Haban
vs. Vamenta, 33 SCRpersonal
Effect of Non-Service
Unless the defendant voluntarily submits to the jurisdiction of
the court, non-service or irregular service of summons renders
null and void all subsequent proceedings and issuances in the
action from the order of default up to and including the
judgment by default and the order of execution.
The non-service or invalidity of service of summons may be a
ground for dismissal for lack of jurisdiction over the person of
the defending party.
Note: Where the defendant has already been served with
summons on the original complaint, no further summons is
required on the amended complaint if it does not introduce new
causes of action. (Ong Peng vs. Custodio, GR No. 14911, March
25, 1961)
But where the defendant was declared in default on the original
complaint and the plaintiff subsequently filed an amended
complaint, new summons must be served on the defendant on
the amended complaint as the original complaint was deemed
withdrawn upon such amendment (Atkins vs. Domingo GR No.
L19565, March 24, 1923)
General Rule: When an additional defendant is joined,
summons must be served upon him.
Exceptions:
1. When the administrator of a deceased party defendant
substitutes the deceased;
2. Where upon the death of the original defendant his
heirs are made parties; and
3. In cases of substitution of the deceased under Sec. 16
R
3)
Note: In these instances, the service of the order of substitution
is sufficient.
In actions in rem or quasi in rem
In an action in rem or quasi in rem, jurisdiction over the
defendant is not mandatory and the court acquires jurisdiction
over an action as long as it acquires jurisdiction over the res.
The purpose of summons in these actions is not the acquisition
of jurisdiction over the defendant but mainly to satisfy the
constitutional requirements of due process (Gomez vs. CA 420
SCRA 98; Biaco vs. Phil. Countryside Rural Bank 515 SCRA
106; PCI Bank v. Alejandro 533 SCRA 738).
Uniformity of the rules on summons
The rules on summons apply with equal force in actions before
the RTC and first level courts. This is because the procedure in
the first level shall be the same as in the second level except (a)
where a particular provision expressly or impliedly applies only
to either of said courts, or (b) in civil cases governed by the
Rules on Summary Procedure (Sec. 1, Rule 5).
Section 2 states the contents of a summons:
Sec. 2. Contents. The summons shall be
directed to the defendant, signed by the
clerk of court under seal, and contain:
(a) the name of the court and the names of
the parties to the action;
(b) a direction that the defendant answer
within the time fixed by these Rules;
(c) a notice that unless the defendant so
answers, plaintiff will take judgment by
default and may be granted the relief
applied for.
A copy of the complaint and order for
appointment of guardian ad litem, if any,
 shall be attached to the original and each
copy of the summons. (3a)
Service of summons without copy of the complaint
Is the defendant bound to comply with the summons where
service was made without attaching a copy of the complaint?
In Pagalaran vs. Bal-latan 13 Phil. 135, the defendant was
served summons but without a copy of the complaint. She did
not appear and file her answer as ordered. The trial court then
issued an order declaring her in default. A principal issue raised
in the SC was whether or not the proceedings in the trial court
should be annulled on the ground that the defendant had never
been summoned pursuant to the Rules because she was not
served a copy of the complaint.
The SC, while admitting that the service of summons was
defective, treated the defect as having been waived by the
defendant’s failure to seasonably challenge the trial court’s
jurisdiction over her person. She should have appeared to
challenge the jurisdiction of the court.
Q: If a complaint is amended and an additional defendant is
included, is there a necessity of issuing new summons on the
additional defendant?
A: YES. When an additional defendant is included in the action,
summons must be served upon him for the purpose of enabling
the court to acquire jurisdiction over his person. The case is
commenced against the additional defendant upon the
amendment in the complaint (Fetalino vs. Sanz, 44 Phil. 691)
Q: Suppose a defendant, who has already been summoned,
died, and there was substitution of party (under Rule 3), his
legal representative was substituted in his place, is there a
necessity of issuing new summons on the substituted
defendant?
A: NO. The order of the court ordering him to be substituted is
already sufficient. Anyway he is only a continuation of the
personality of the original defendant. Just serve the copy of the
order, where he is ordered to be substituted. (Fetalino vs. Sanz,
44 Phil. 691)
BAR QUESTION: If a defendant is served with summons and
later on the complaint is amended by the plaintiff, is there a
necessity that another summons be issued and served based on
the amended complaint? Or is the summons of the original
complaint sufficient?
ANS: It depends on whether the amendment was made before or
after defendant’s appearance in the action:
Q: What do you mean by the phrase “appearance in the action”?
A: The best example is, whether the defendant files an
answer to the complaint. Appearance in civil cases does not
mean that you are there and show your face to the judge.
That is not the meaning of the word “appearance”.
Appearance means filing something in court which would
show that the court has jurisdiction over your person, like the
filing of an answer. When the defendant filed an answer
through his lawyer, there is now appearance of the
defendant.
a) If the defendant has not filed answer to the original
complaint there must be another summons issued on
the amended complaint. A new summons must be
served all over again based on the amended complaint.
(Atkins, Kroll & Co. vs. Domingo, 44 Phil. 680)
b) If the defendant has already filed an answer to the
original complaint or he has already appeared in the
action, and after that the complaint is amended, there
is no need of issuing new summons on the amended
complaint. (Ibid; Ong Peng vs. Custodio, L-14911,
March
1961)
Q: Connecting the question with Rule 11 (on periods to file
pleadings), suppose the defendant was served with summons on
the original complaint and before he could answer, there is now
an amended complaint, so there will be new summons on the
amended complaint, what is the period to file an answer?
A: The period to file an answer is 15 days all over again. There
will be another period of 15 days to file an answer to the
amended complaint upon receipt of the amended complaint and
the summons.
Q: Suppose the defendant has already filed an answer to the
original complaint and after that there is an amended
complaint, what must the plaintiff do?
A: This time, there is no need of summons. All that the plaintiff
has to do is to furnish the defendant a copy of the amended
complaint together with the motion to admit it. Just serve the
defendant a copy of the amended complaint with a copy of the
order admitting the filing of the amended complaint.
Q: Suppose that the court allowed the admission of the
amended complaint, what is the period for the defendant to file
an answer to the amended complaint?
A: Going back to Rule 11, ten (10) days only. Ten (10) days, not
from the receipt of the amended complaint, but from receipt of
the order allowing the amended complaint.
Appearance in an action is best manifested by the filing of an
answer by the defendant. However, according to the SC in the
case of:
PAN ASIATIC TRAVEL CORP. vs. CA – 164 SCRA 623
HELD: Appearance in the action is not only limited to the
filing of an answer. When defendant files a motion for
extension of time to file his answer, that is already an
appearance in the action. If a defendant files a motion for
Bill Of Particulars under Rule 12, that is already considered
as an appearance in the action.
SEC. 3 By whom served – the summons
may be served by the sheriff, his deputy,
or other proper court officers, or for
justifiable reasons by any suitable person
authorized by the court issuing the
summons (5a)
Q: Who can serve summons? Who are authorized by law to
serve summons?
A: Under Section 3, the following:
1) Sheriff;
2) Deputy sheriff;
3) Other proper court officer (court employees); or
4) For justifiable reasons, by any suitable person
authorized by the court issuing the summons.
Note: The enumeration is exclusive
NOTE: Policemen cannot validly serve summons unless
authorized by court. (Sequito vs. Letrondo, L-11580, July 20,
1959)
EXAMPLE: I will sue somebody who is living on top of Mt. Apo.
I don’t think the sheriff would like to go there. But there are
people who go there, like the natives. So Barangay Captain
Acelar will be asked to be deputized by the court to serve and he
will be taught how to do it. So, he will become a sort of special
court officer for that purpose. But there must be a court order.
SEQUITO vs. LETRONDO – L-11580, July 20, 1959
FACTS: The summons was served by a policeman in a
remote area and the question that was asked is whether he
is authorized.
HELD: NO, he is not authorized. The policeman is not a
sheriff, he is not a deputy sheriff, and he is not a proper
court officer. He belongs to the PNP. And PNP is under the
executive branch and not a part of the judiciary.
However, there is no problem if he is the only one in that area
whom we can depend on. All you have to do is get a court order
deputizing the police officer. So he will fall under no. 3. But
without such court order, he is not among those mentioned in
Section 3.
Q: When summons is served, must it be on a weekday and not
on Saturday, Sunday, or holiday, and must be within office
hours? Can you challenge the validity of the service of
summons on the ground that it was not effected on a working
day or during office hours?
A: In the case of
LAUS vs. COURT OF APPEALS – 214 SCRA 688
HELD: The service of summons is valid because the service
of summons is MINISTERIAL. Service of summons may be
made at night as well as during the day, or even on a
Sunday or holiday because of its ministerial character.
SEC. 4 Return – When the service has been
completed, the server shall, within five (5)
days therefrom, serve a copy of the return,
personally or by registered mail, to the
plaintiff’s counsel and shall return the
summons to the clerk who issued it,
accompanied by proof of service (6a)
The person who served the summons is the sheriff or his
deputy. After that, it is the duty of the sheriff to inform the
court what has happened – was he able to serve the copy of the
complaint, together with the summons to the defendant? If so,
on what day? The duty of the sheriff after service of summons is
that he should make a report to the court as to what happened.
That is what is called a sheriff's return.
EXAMPLE: “Respectfully returned to the court with the
information that defendant was personally served with summons
on this date and on this time as shown by his signature on the
face of this original copy.” Or, “Respectfully returned to the court
with the information that defendant cannot be served with
summons because the defendant had already moved from the
address indicated in the complaint and therefore he cannot be
located.”
There must be a report because that will determine when the
period to file an answer will start to run. Or, if he failed to serve
it for one reason or another, like for example, the defendant is
no longer residing in that place and you cannot find him, at
least you must also return the summons to the court and make
a report that you cannot serve the summons. That is what you
call the Sheriff’s Return under Section 4, Rule 14.
He must also furnish a copy of his report to the plaintiff’s lawyer
so that the plaintiff’s lawyer can determine what is the deadline
for the defendant to file his answer.
SEC. 5 Issuance of Alias Summons – if a
summons is returned without being served
on any or all of the defendants, the server
shall also serve a copy of the return on the
plaintiff’s counsel, stating the reasons for
the failure of service, within five (5) days
therefrom, in such case, or if the
summons has been lost, the clerk, on
demand of the plaintiff, may issue an alias
summons (4a)
Now Section 5 contains this new requirement that the serving
officer shall also serve a copy of the return on the plaintiff's
counsel stating the reasons for the failure of service within 5
days therefrom. They should tell the lawyer what happened so
that if the summons was not served, the lawyer can file a
motion for issuance of an alias summons, like he cannot serve
the summons because the defendant is not already in the
address given. It will then be the problem of the plaintiff and his
lawyer to locate the new address of the defendant or counsel
and file said motion.
Alias summons is one issued when the original has not
produced its effects because of a defect in form or in the manner
of service, and when issued supersedes the first writ.
Q: What happens if the summons is returned unserved on any
or all of the defendants?
A: The server shall serve also a copy of the return on the
plaintiff’s counsel, stating the reasons for the failure of service.
Q: For what purpose?
A: So that the plaintiff’s lawyer will have to look now for the
defendant and once he finds the correct address, he has to
inform the court of the new address so that a new summons
can be issued on the new address. The second summons is
what lawyers call an ALIAS SUMMONS – if the first summons
was lost, upon being informed, the clerk of court will issue
another summons known as an ALIAS SUMMONS.
MODES OF SERVICE OF SUMMONS TO INDIVIDUAL
DEFENDANTS:
Now let’s go to the general modes on service of summons. This
is a very important portion of Rule 14.
Q: How is summons served?
A: There are three (3) modes of service of summons (on
individual defendant):
1) Section 6 – Service in person on defendant;
2) Section 7 – Substituted service (Section 7); and
3) Sections 14, 15, 16 – Service by publication;
First Mode: SERVICE IN PERSON (Section 6)
 SEC. 6. Service in person on defendant –
Whenever practicable, the summons shall
be served by handing a copy thereof to the
defendant in person, or if he refuses to
receive and sign for it, by tendering it to
him
(7a)
Q: How is service in person done?
A: It is effected by
(a) handing a copy thereof to the defendant in person, or (
(b) if he refuses to receive and sign for it, by tendering it
to him.
The summons must be served in person. This is literal, the
summons must be served upon the defendant himself not to
anybody else.
Q: Do you have to serve it to the defendant in his office or in his
house?
A: NO. You can serve it wherever he may be found. And the law
does not care where to do it.
EXAMPLE: I am the sheriff. I’m looking for you to serve
summons in a case and while walking along New York Street, I
saw you inside a restaurant. I entered the restaurant and
served the summons there. Then you say, “Not here. Give it to
me at home”. Under the law, service is in person. There is no
need for me to go to your house. I can serve the summons
wherever I find you.
Q: Now suppose, normally, you give the copy and you ask him
to sign the original summons but he refuses, what will I do?
A: I will write here in my return that I saw you, I offered but you
refused. That is enough. Under the law, you are served. The
court has already acquired jurisdiction over your person.
The common impression of laymen is if it is not received then
there is no proper service. No, that is of course false. You
cannot defeat a court process by refusing to accept it. And
under the law, from that moment, you are bound.
Now, under the 1964 rules, this mode of service of summons
was called PERSONAL SERVICE. Under the 1997 Rules, the
’personal service’ was changed to ‘SERVICE IN PERSON’. They
just changed the words so that it cannot be confused with Rule
13 because in Rule 13, there is also personal service. But that is
not service of summons but service of pleadings, motions, etc.
To avoid confusion, personal service was changed to service in
person. Because service under Rule 13 is also personal service
to the secretary but here in Rule 14, it is literal. Service in
person on the defendant.
Service of summons in actions in personam / Service in
person preferred
In an action strictly in personam, service in person on the
defendant is the preferred mode of service (Hamilton vs. Levy
344 SCRA 821). This is done by handing a copy thereof to the
defendant in person. If he refuses to receive and sign for it, the
remedy of the server is to tender the summons to the defendant.
If the defendant refuses the service, the server should not resort
to substituted service immediately. He must “tender” the
summons to him. Tender of summons is not a separate mode of
service. It is a part of service in person.
Substituted service when proper
If the defendant cannot be served in person within a reasonable
time, only then may substituted service under Sec. 7 be availed
of. The sheriff or server must first exert all efforts to serve the
defendant in person. If this effort fails, then substituted service
can be made. This effort must be stated in the proof of service.
This is required because substituted service is in derogation of
the usual mode of service (Laus vs. CA 219 SCRA 688;
Umandap vs. Sabio, Jr. 339 SCRA 243; Samartino vs. Raon 383
SCRA 66; Hamilton vs. Levy 344 SCRA 821.
Second Mode: SUBSTITUTED SERVICE (Section 7)
What is substituted service?
SEC. 7 Substituted Service – If, for
justifiable causes, the defendant cannot be
served within reasonable time as provided
in the preceding section, service may be
effected (a) by leaving copies of the
summons at the defendant’s residence
with some person of suitable age and
discretion then residing therein, or (b) by
leaving the copies at defendant’s office or
regular place of business with some
competent person in charge thereof (8a)
If the defendant cannot be served personally or in person under
Section 6, the sheriff may resort to what is known as
SUBSTITUTED SERVICE OF SUMMONS under Section 7. This
time, you can course it to somebody else. The place is
important and the person to whom you will serve it.
On service in person under Section 6, it is immaterial where you
find the defendant. What is important is it is served in person.
But if you want resort to substituted service under Section 7),
you better have to do it by leaving copies of the summons:
1.) at the defendant’s residence with some person of
suitable age and discretion residing therein; or
2.) in his office or regular place of business with some
competent person in charge thereof, like the manager
or the foreman.
But note the condition: “If, for justifiable causes, the
defendant cannot be served within reasonable time as
provided in the preceding section xxx.”
So, if the server cannot serve you the summons personally,
because he cannot find you despite several attempts, then he
can served it on your wife or child, who is around, or the
housemaid or houseboy, provided they are of suitable age and
discretion.
For substituted service of summons to be valid, it is
necessary to establish the following:
1) The impossibility of the personal service of summons
within a reasonable time;
2) The efforts exerted to locate the person to be served;
and
3) Service upon a person of sufficient age and discretion
residing in the same place as defendant or some
competent person in charge of his office or regular
place of business.

In substituted service, the sheriff's return must show that an
effort or attempt was exerted to personally serve the summons
on the defendant and that the same failed. (Sps. Venturanza vs.
CA GR. No. 77760, Dedc. 11, 1987)
Within a reasonable time has been interpreted to contemplate a
period of time longer than that demarcated by the word
“prompt” and presupposes that a prior attempt at personal
service had failed (Laus vs. CA 219 SCRA 688).
The case of Manotoc vs. CA 499 SCRA 21, is more specific:
“….Reasonable time is defined as so much time as is necessary
under the circumstances for a reasonably prudent and diligent
man to do, conveniently, what the contract or duty requires that
should be done….Under the Rules, the service of summons has
no set period….Since the defendant is expected to try to avoid
and evade service of summons, the sheriff must be resourceful,
persevering, canny, and diligent in serving the process on the
defendant.” For substituted service to be available there must
be several attempts by the sheriff to personally serve the
summons within a reasonable period…”Several attempts”
means at least three (3) tries, preferably on at least two different
dates. In addition the sheriff must cite why such efforts were
unsuccessful. It is only then that impossibility of service can be
confirmed or accepted.
“The Sheriff must describe in the Return of Summons the facts
and circumstances surrounding the attempted personal service
(citing Domagas vs. Jensen, 448 SCRA 663). The efforts made to
find the defendant and the reason behind the failure must be
clearly narrated in detail in the Return. The date and time of the
attempts on personal service, the inquiries made to locate the
defendant, the name/s of the alleged occupants of the alleged
residence or house of the defendant and all other acts done,
though futile, to serve the summons on the defendant must be
specified in the Return to justify substituted service….”
A mere general claim or statement in the Sheriff’s Return that
the server had made “several attempts” to serve the summons,
without making reference to the details of facts and
circumstances surrounding such attempts, does not comply
with the rules on substituted service (Manotoc vs. CA, supra). A
Return which merely states the alleged whereabouts of the
defendants without indicating that such information was
verified and without specifying the efforts exerted to serve the
summons is not enough for compliance. So is a mere general
statement that such efforts were made (Jose vs. Boyon 414
SCRA 216).
“A person of suitable age and discretion” defined
“A person of suitable age and discretion is one who has attained
the full age of full legal capacity (18 years old) and is considered
to have enough discernment to understand the importance of
summons. The Manotoc case explains:
“Discretion is defined as the ability to make decisions which
represent a responsible choice and for which an understanding
of what is lawful, right or wise may be presupposed. Thus, to be
of sufficient age and discretion, such person must know how to
read and understand English to comprehend the import of the
summons, and fully realize the need to deliver the summons
and complaint to the defendant at the earliest possible time for
the person to take appropriate action. Thus, the person must
have a ‘relation of confidence’ to the defendant, ensuring that
the latter would receive or at least be notified of the receipt of
summons. The sheriff must therefore, determine if the person
found in the alleged dwelling or residence of defendant is of
legal age, what the recipient’s relationship with the defendant is,
and whether said person comprehends the significance of the
receipt of the summons and his duty to deliver it to the
defendant or at least notify the defendant of said receipt of
summons. These matters must be clearly and specifically
described in the Return of Summons.”
“A competent person in charge of the office or regular place
of business” defined
“A competent person in charge of the office or regular place of
business” must be the one managing the office or business of
defendant, such as the president or manager; and such
individual must have sufficient knowledge to understand the
obligation of the defendant in the summons, its importance, and
the prejudicial effects arising from inaction on the summons.
Again, the details must be contained in the Return (Manotoc vs.
CA)
It is not necessary that the person in charge of the defendant’s
regular place of business be specifically authorized to receive
the summons. It is enough that he appears to be in charge
(Guanzon v. Arradaza 510 SCRA 309).
Effect when substituted service is valid but defendant failed
to actually receive summons
Where the substituted service has been validly served, its
validity is not affected by the defendant’s failure to actually
receive the summons from the person with whom the summons
had been left. It is immaterial that the defendant does not in
fact receive actual notice. The rule does not require the sheriff
or any authorized server to verify that the summons left in the
defendant’s residence or office was actually delivered to the
defendant (Montalban vs. Maximo, supra).
The proof of service of summons must
(a) indicate the impossibility of service of summons within
a reasonable time;
(b) specify the efforts exerted to locate the defendant; and
(c) state that the summons was served upon a person of
sufficient age and discretion who is residing in the
address, or who is in charge of the officer or regular
place of business of the defendant.
It is likewise required that the pertinent facts proving these
circumstances be stated in the proof of service or in the officer’s
return. The failure to comply faithfully, strictly and fully with all
the foregoing requirements of substituted service renders the
service of summons ineffective (Jose vs. Bayon 414 SCRA 216;
Miranda vs. CA 326 SCRA 278).
Service of summons to resident defendant but temporarily out –
Substituted service in addition to service by publication under
Section 16 in relation to Sec. 15
In a suit in personam against a resident of the Philippines
temporarily absent from the country, the defendant may be
served by substituted service because a man temporarily out of
the country leaves a definite place of residence or a dwelling
where he is bound to return. He also leaves his affairs to
someone who protects his interests and communicates with him
on matters affecting his affairs or business (Montalban vs.
Maximo 22 SCRA 1070; Valmonte vs. CA 252 SCRA 92).
If the defendant is out of the country, he cannot be expectedly
served within a reasonable time. The fact that “for justifiable
causes, the defendant cannot be served within a reasonable
time,” constitutes the operative fact that triggers the application
of substituted service. This mode of service in the case of a
resident temporarily absent from the country is, of course, in
addition to the summons by publication authorized by Sec. 16
in relation to Sec. 15 of this Rule.
An ineffective substituted service has certain adverse effects.
First, the period to file a motion to dismiss for lack of
jurisdiction over the defendant’s person does not commence to
run since the court has no jurisdiction to adjudicate the
controversy as to him, unless he voluntarily submits to the
jurisdiction of the court (Laus vs. CA 219 SCRA 688). Second,
the trial court does not acquire jurisdiction over the person of
the defendant (Laus vs.CA 219 SCRA 688; Litonjua vs. CA 80
SCRA 246).
When defendant prevents service of summons
What if diligent efforts were undertaken by the Sheriff to serve
summons upon the defendant but he was prevented from
effecting such service by the defendant himself?
In one case, the Sheriff was forced to serve the summons upon
the subdivision security guard because he was refused entry
therein upon instruction of the defendant.
The SC ruled:
“We have ruled that the statutory requirements of substituted
service must be followed strictly, faithfully, and fully and any
substituted service other than that authorized by the Rules is
considered ineffective (Paluwagan ng Bayan Savings Bank vs.
King GR 78252, April 12, 1989, 172 SCRA 60). However, we
frown upon an overly strict application of the Rules. It is the
spirit, rather than the letter of the procedural rules, that
governs.
“In his Return, the sheriff declared that he was refused entry by
the security guard in the subdivision. The latter informed him
that petitioner prohibits him from allowing anybody to proceed
to her residence whenever she is out. Obviously, it was
impossible for the sheriff to effect personal or substituted
service of summons upon petitioner. We note that she failed to
controvert the sheriff’s declaration. Nor did she deny having
received the summons through the security guard.
“Considering her strict instruction to the security guard, she
must bear its consequences. Thus, we agree with the trial court
that summons has been properly served upon petitioner and
that it has acquired jurisdiction over her.
The summons was therefore, properly served” (Robinson vs.
Miralles 510 SCRA 678).
SEQUIOTO vs. LETRONDO - L-11580, July 20, 1959
FACTS: Summons was served by the sheriff on the
defendant’s daughter, a 12-year old and a grade four pupil.
The child threw the summons away. The father did not
receive the summons, and he was declared in default.
HELD: The service of summons is void because defendant’s
daughter, under the circumstances, is not a person of
suitable discretion.
Q: Suppose, the sheriff goes to the defendant’s house and says,
“Is this the residence of Mr. Juan dela Cruz?” “Yes.” “Is he
around?” “No, he left for work, but he will be back 5 hours from
now.” The sheriff left the summons to the wife, sufficient of age
and discretion. In other words, the sheriff resorted to
substituted service of summons under Section 7. Is there a valid
substituted service of summons? Can a sheriff resort to Section
7 (substituted service) immediately?
A: NO. Section 7 cannot be applied unless you attempt Section
6 (Service in person). The sheriff has to try several times to
reach the defendant in person. Sheriff is not allowed to resort to
substituted service without attempting service in person several
times.
Q: So what is the condition?
A: Substituted service of summons can only be applied by the
sheriff if there is failure of personal service within reasonable
time for justifiable causes [under Rule 14, Section 7]. So if the
wife says, “come back tomorrow,” so you have to come back
tomorrow and you cannot yet serve substituted service of
summons.
Q: But suppose, the sheriff has gone to your house 5 times,
everytime he goes there you are not around, is substituted
service of summons allowed?
A: YES. I will now serve it on you (through your wife) and that
is valid. The law prefers service in person than substituted.
Substituted service according to SC, should only be resorted to
if there is failure of personal service within reasonable time for
justifiable causes. (Mapa vs. CA, 214 SCRA 417)
MAPA vs. CA – 214 SCRA 417
HELD: If a sheriff resorts to substituted service under
Section 7 and when he makes his return, his return must
specify that “I have tried many times to resort to personal
service, but he cannot do it”. He must outline his efforts to
apply Section 6, otherwise the return is defective.
“Impossibility of prompt service should be shown by stating
the efforts failed. This statement should be made in the
proof of service. This is necessary because substituted
service is in derogation of the usual method of service.”
Now, of course, if I tried several times to serve you personally
but I failed, and then I make a return but I did not explain,
there is still a valid service but you must explain in court.
There is a presumption that you did not exert efforts. To make
it a complete return, you must outline several attempts to make
personal service.
[Substituted service of summons may still be considered as
VALID even if the sheriff failed to state in his return of the facts
of the impossibility of prompt service if the server subsequently
explains in court, by giving testimony, the facts why he resorted
to a substituted service. The plaintiff should not be made to
suffer for the lapses committed by an officer of the court]
TOYOTA CUBAO INC. vs. CA – October 23, 1997
HELD: “A law prescribing the manner in which the service
of summons should be effected is jurisdictional in character
and its proper observance is what dictates the court’s ability
to take cognizance of the litigation before it. Compliance
therewith must appear affirmatively in the return. It must
be so as substitute service is a mode that departs or
deviates from the standard rule. Substitute service must be
used only in the way prescribed, and under circumstances
authorized by
law.”

DISTINCTIONS BETWEEN SERVICE OF PLEADINGS [RULE 13]
AND SERVICE OF SUMMONS [RULE 14]
Now, do not confuse substituted service of summons under Rule
14 with substituted service of pleadings, orders and other
papers under Rule 13.
Let us read Section 6, Rule 13:
Rule 13, SEC. 6. Personal service. - Service
of the papers may be made by delivering
personally a copy to the party or his
counsel, or by leaving it in his office with
his clerk or with a person having charge
thereof. If no person is found in his
office, or his office is not known, or he
has no office, then by leaving the copy,
between the hours of eight in the morning
and six in the evening, at the party's or
counsel's residence, if known, with a
person of sufficient age and discretion
then residing therein. (4a)
FIRST DISTINCTION: In Rule 13, that is known as personal
service. In Rule 14, that is known as substituted service.
Service of summons is governed by a different rule (Rule 14)
from service of pleadings, judgments and other papers (Rule
13).
Now, what is substituted service in Rule 13? Let us go back to
Section 8, Rule 13.
Rule 13, SEC. 8. Substituted service. - If
service of pleadings, motions, notices,
resolutions, orders and other papers
cannot be made under the two preceding
sections, the office and place of residence
of the party or his counsel being
unknown, service may be made by
delivering the copy to the clerk of court,
with proof of failure of both personal
service and service by mail. The service
is complete at the time of such delivery.
(6a)
SECOND DISTINCTION: In Rule 14, substituted service means if
you cannot serve the defendant in person, then you serve the
summons at the residence of the defendant with some person of
suitable age and discretion residing therein or by leaving copies
at the defendant’s office or regular place of business with some
competent person in charge thereof. That is substituted service
of summons under Rule 14.
But in Rule 13, substituted service of other pleadings,
judgments, orders, etc., if personal service or service by
registered mail have failed, then serve it on the clerk of court.
And that is known as substituted service.
In Rule 14, there is NO such thing as service of summons
through registered mail. So how can a summons be served to a
defendant in Manila? The Davao sheriff will mail the summons
to the Manila sheriff who will serve the summons to the
defendant in Manila.
So, there is a difference in meaning. Substituted service of
summons in Rule 14 is different from substituted service of
pleadings, judgments and other papers in Rule 13.
Third Mode: SERVICE OF SUMMONS BY
PUBLICATION :
(Sections 14, 15, and 16)
SERVICE BY PUBLICATION UNDER SECTION 14
(Suing an Unknown Defendant)
Going back to Section 9, Rule 13:
Rule 13, SEC. 9. Service of judgments, final
orders or resolutions. - Judgments, final
orders or resolutions shall be served either
personally or by registered mail. When a
party summoned by publication has failed
to appear in the action, judgments, final
orders or resolutions against him shall be
served upon him also by publication at the
expense of the prevailing party. (7a)
Under Rule 13, when a party summoned by publication has
failed to appear in the action, meaning the defendant failed to
file an answer, the decision can also be served upon him by
publication.
As a rule summons by publication is available only in actions in
rem or quasi in rem. It is not available as a means of acquiring
jurisdiction over the person of the defendant in an action in
personam.
Against a resident, the recognized mode of service is service in
person on the defendant under Sec. 6. In a case where the
defendant cannot be served within a reasonable time,
substituted service will apply (Sec. 7), but not summons by
publication which is permissible however, under the conditions
set forth in Sec. 14 (where the identity or whereabouts of the
defendant are unknown) and in Section 16 (when the defendant
is a resident temporarily out of the Philippines).
Against a non-resident, jurisdiction is acquired over the
defendant by service upon his person while said defendant is
within the Philippines. As once held, when the defendant is a
non-resident, personal service of summons in the state is
essential to the acquisition of jurisdiction over him (Banco de
Brasil vs. CA 333 SCRA 545). This is in fact the only way of
acquiring jurisdiction over his person if he does not voluntarily
appear in the action. Summons by publication against a non-
resident in an action in personam is not a proper mode of
service.
Publication is a notice to the whole world that the proceeding
has for its object to bar indefinitely all who might be minded to
make an objection of any sort against the right sought to be
established. It is the publication of such notice that brings in
the whole world as a party in the case and vests the court with
jurisdiction to hear and decide it (Cynthia Alaban vs. CA 470
SCRA 697). Publication is likewise not a mode of service in an
action in personam against a defendant except under certain
situations (Sections 14 and 16).
Q: What are the instances where a defendant may be served
with summons by publication?
A: Sections 14, 15 & 16 of Rule 14.
And the first one is service upon defendant whose identity or
whereabouts are unknown. That is what you call suing an
unknown defendant. Or, the defendant is known but his
whereabouts are not known. But definitely, he is in the
Philippines. That is the important condition. So, let us read
Section 14:
 Sec. 14. Service upon defendant whose
identity or whereabouts are unknown. In any
action where the defendant is designated
as an unknown owner, or the like, or
whenever his whereabouts are unknown
and cannot be ascertained by diligent
inquiry, service may, by leave of court, be
effected upon him by publication in a
newspaper of general circulation and in
such places and for such time as the court
may order. (16a)
Under this provision, service of summons is allowed:
1) where the defendant is designated as unknown owner.
Well, we have discussed that in Rule 3 – when you file
a case against an unknown defendant is allowed. But
of course, he is unknown, you have no idea where he
is
staying; and
2) where the defendant is known but his whereabouts are
unknown and cannot be ascertained by diligent
inquiry.
Take note that to avail of summons by publication, there must
be leave of court. You must file a motion, under Rule 14, for
permission to have defendant summoned by publication and the
court will issue an order allowing the defendant be served with
summons by publication where the complaint and the
summons be ordered published. The service may be effected
upon him by publication in a newspaper of general circulation
and in such places and for such time as the court may order.
Section 14 allows service of summons by publication, if the
whereabouts of the defendant is unknown, after diligent inquiry
and with leave of court. However, Section 17 requires that the
application for leave to effect service by publication must be
accompanied by a motion in writing, supported by an affidavit
setting forth the grounds for the application (Pacana-Gonzales
vs.
CA, GR No. 150908, Jan. 21, 2005)
“Of general circulation and in such places and for such time as
the court may order.” Hindi naman kailangan sa Daily Inquirer.
Puwede man sa local paper, ba. For example, sabihin mo: “We
learned that he is in Cebu pero saan sa Cebu, we do not know.”
The court may order the publication to be published in a local
newspaper of general circulation in Cebu. Of course, kasama
diyan ang complaint. How many times? Bahala na ang court.
Say, tatlong issues. So, every Monday for three weeks. Basta
the presumption is mabasa yan ng defendant or at least
somebody who must have read it will inform the defendant. So,
the law requires that you must file a motion and ask the court
to allow service of summons by publication.
Now, one thing that you have to remember is, the whereabouts
of the defendant is unknown, but he is in the Philippines. That
is the condition. If he is in the United States, this will not
apply. What is contemplated by Section 14 is that the address
of the defendant is unknown but it is positive that he is in the
Philippines.
ILLUSTRATION: Suppose your friend borrowed money from
you. Never paid you and just disappeared and the last time you
heard, he is residing somewhere in General Santos City. So you
wanted to sue by having the summons under Section 14
because his exact whereabouts is unknown. So you file a
motion for leave to serve summons by publication under this
rule. The question is, should the court allow it? Of course the
tendency is to say “yes” because his whereabouts is unknown
and cannot be ascertained by diligent inquiry.
Q: Now what kind of an action is an action to collect an unpaid
loan where the defendant cannot be located anymore?
A: That is an action in personam.
Q: If the defendant is in the Philippines and his whereabouts is
unknown and the action is in personam, can the plaintiff resort
to service summons by publication?
A: In the cases of
FONTANILLA vs. DOMINGUEZ – 73 Phil. 579
HELD: In this case, SC said service of summons is possible
even if the action is in personam because service by
publication when the whereabouts of the defendant is
unknown is allowed whether the case is in personam or in
rem. It is proper in all actions without distinction provided,
the defendant is residing in the Philippines but his identity
is unknown or his address cannot be ascertained.
So if we will follow this case what will be our answer? YES,
because it is allowed in any action without distinction.
PANTALEON vs. ASUNCION – 105 Phil 755
HELD: NO, because service of summons by publication under
this section is allowed only where the action is in rem or quasi
in rem, not in personam. In order to bind the defendant there
must be service of summons on him. Personal, he must know.
But in actions in rem quasi in rem, pwede.
“It is a well settled rule in constitutional law that an action
in personam, personal service of summons within the
Philippines (forum) is essential in the acquisition of
jurisdiction over the person of the defendant who does not
voluntarily submit himself to the authority of the court.”
In other words, summons by publication is not consistent with
the due process clause of the bill of rights because it confers
court jurisdiction over said defendant who is not in the
Philippines. So service of summons by publication of the
defendant who cannot be found in the Philippines will be
violative of the due process clause that he must be informed
personally. He must be given a chance under due process – to
be deprived of his property with due process of law. So if we will
follow the ruling in this case, the answer would be NO because
the action is in personam (collection case). So nag-conflict na.
CITIZEN’S INSURANCE SURETY vs. MELENCIO-HERRERA –
38
SCRA 369
ISSUE: What is the remedy if you are a creditor and you
want to sue your debtor and serve summons by publication
but you cannot do it because your case is in personam?
HELD: (Reiterates Pantaleon vs. Asuncion) You convert your
case from in personam to in rem or quasi in rem. How? If
you cannot find the defendant but he has properties left,
you can have that properties attached under Rule 57,
Section 1 so that you can acquire a lien over said
properties. Now that it is attached, civil action is converted
from in personam to quasi in rem because you already
acquire a lien over the property so it is quasi in rem. You
can now ask the court to effect summons by publication..
“The proper recourse for a creditor in the same situation as
petitioner is to locate properties, real or personal, of the
resident defendant debtor with unknown address and
cause them to be attached under Rule 57, Sec. l(f), in which
case, the enactment converts the action into a proceeding
in rem or quasi in rem and the summons by publication
may then accordingly be deemed valid and effective.” So
kahit isang bisekleta para lang ma-convert ang action.
MAGDALENA ESTATE INC. vs. NIETO - 125 SCRA 758
SC traced the history of this question…we reiterate CITIZEN
and PANTALEON, the action must be in rem or quasi in
rem. [That is why just read this case because it is a
complete summary of what the SC said earlier. And of
course after it, from time to time, this issue re-surfaces.]
CONSOLIDATED PLYWOOD vs. BREVA – 166 SCRA 589
(Davao case)
HELD: Judge Breva fell into the error of allowing service of
summons by publication by allowing it in an ordinary
collection case. SC said you cannot do that, the action
must be in rem or quasi in rem. Therefore the default
judgment was rendered null and void because of lack of
proper service of summons to the defendant.
Q: What is the important doctrine based from the foregoing
cases?
A: The SC said that Section 14 can only be availed of when the
action is in rem or quasi in rem. If the action is in personam, like
of collection of a sum of money, service of summons by
publication to the defendant is improper. The action should be
action in rem or quasi in rem.
Q: Therefore if your action is in personam, like collection of an
unpaid obligation, and you cannot find the defendant and you
want to avail of Section 14, what is you remedy?
A: As explained by the SC, you convert the action to in rem or
quasi in rem. How? By looking for any property of the said
defendant and have it attached under Rule 57 [i], the last
ground for attachment. Now, your action is converted to quasi
in rem. You can now file a motion for service of summons by
publication. (Pantaleon vs. Asuncion, 105 Phil. 765; Citizen’s
Surety & Insurance Co., vs.
Melencio-Herrera, 38 SCRA 369; Magdalena Estate, Inc. vs.
Nieto, 125 SCRA 758; Plywood Industries vs Breva, 166 SCRA
589)
In all these cases, the SC ruled that to validly serve summons
by publication on a defendant who is in the Philippines but
whose name is not known or whereabouts is not known, the
action must be in rem or quasi in rem.
But a minor insignificant amendment to Section 14 has cast
doubt on the validity of those doctrine. Why? You read the
opening of Section 14: “In any action…” you notice, “in any
action where the defendant is designated as an unknown… ”
You look at the old rules. Can you find the phrase “in any
action”? You look and compare it. Let us look the 1964 Rules:
1964 Rules, Rule 14, SEC. 16 “Whenever
the defendant is designated as an unknown
owner, or the like, or whenever the address
of a defendant is unknown and cannot be
ascertained by diligent inquiry, service
may, by leave of court be effected upon
him by publication in a newspaper of
general circulation and in such places and
for such time as the court may order.”
In other words, there is a case and the defendant is unknown,
but what kind of cases? It is not stated there (Section 16, old
rules). Kaya nga, it was clarified in the cases of MAGDALENA
ESTATE, PANTALEON, etc. that the action must be in rem or
quasi in rem.
But look at the new rule on Section 14 – “in any action.” What
does that mean – na puwede na ang action in personam? Is the
intention of this clause to abrogate the previous ruling in
PANTALEON, MAGDALENA ESTATE, CONSOLIDATE PLYWOOD?
If that is the intention, we are going back to the original ruling
laid down in the earlier case of FONTANILLA vs. DOMINGUEZ
which preceded all the other cases.
In the FONTANILLA case, the SC said that service of summons
by publication is proper in all actions without distinctions
provided the defendant is residing in the Philippines but he is
unknown or his address cannot be ascertained. But the
FONTANILLA ruling was abrogated by PANTALEON vs.
ASUNCION, CITIZEN’S SURETY, MAGDALENA ESTATE cases.
That is why to me, this is a very controversial issue whether
Section 14 of Rule 14 applies only to cases in rem or quasi in
rem in these decisions or it is now obsolete, or it is now
applicable whether in personam or in rem or quasi in rem.
So I was wondering what is the meaning of this – “in any action”
– whether there is an intent to return to the old rule and cancel
the rulings in MAGDALENA. To me, this is a question mark.
Even Justice Jose Feria, in his note, cannot answer it. Sabi niya,
“in any action but there is a case, decided in MAGDALENA...” He
is the author, one of the authors, but he cannot explain the
intention. Sabi niya: “the SC earlier ruled…” I asked, “but why
did you insert that?” Kaya to my mind, it is still a question
mark. Maybe it is just an inadvertent amendment without any
intention to abrogate the ruling in MAGDALENA, PANTALEON,
etc. But maybe that is the intention.
So, let us wait for the proper case at the right time to find what
is the intention of the phrase “in any action.”
BALTAZAR vs. CA – December 8, 1988
FACTS: Good Earth Enterprises, a domestic corporation
was sued. Sheriff went to the address of the corporation but
the corporation was no longer there. It moved to another
place. Subsequently, the sheriff returned the summons to
the court. Plaintiff Baltazar filed a motion for leave to serve
the summons and a copy of the complaint upon defendant
Good
Earth by publication
ISSUE: Can there be a proper service by publication in this
case?
HELD: NO. Service by Publication (Section 14) will not apply
because there was no diligent inquiry made by the sheriff.
“Under Section 14, therefore, petitioner must show that the
address of Good Earth was ‘unknown’ and that such
address could not be ascertained by diligent inquiry. More
importantly, We do not believe that the acts of the sheriff
satisfied the standard of ‘diligent inquiry’ established by
Section 14 of Rule 14. The sheriff should have known what
every law school student knows, that Good Earth being a
domestic corporation must have been registered with the
Securities and Exchange Commission and that the SEC
records would, therefore, reveal not just the correct address
of the corporate headquarters of Good Earth but also the
addresses
of its directors and other officers.”
Foregoing distinctions no longer applicable
Summons by way of publication may with leave of court be
availed of where a defendant involved in any action (in rem,
quasi in rem and in personal) is designated as an unknown
owner or whenever his whereabouts are unknown and
cannot be ascertained. The summons shall be effected
through publication in a newspaper of general circulation
and in such places and for such time as the court sets.
In Santos vs. PNOC GR No. 170943, Sept. 23, 2008) the
Supreme Court held that the in rem/in personal distinction
was significant under the old rule because it was silent as
to the kind of action to which the rule was applicable.
Because of this silence, the court limited the application of
the old rule to in rem actions only. This has been changed.
The present rule expressly states that it applied to any
action where the defendant is designated as unknown
owner, or the like, or whenever his whereabouts are
unknown and cannot be ascertained by diligent inquiry.
Thus, it now applies to any action, whether in personal, in
rem or quasi in rem.
If property is attached and later the defendant appears (and
voluntarily submits to the jurisdiction of the court), the case
becomes mainly a suit in personam ( Villareal vs. CA GR No.
107314, Sept. 17, 1998)
SERVICE BY PUBLICATION UNDER SECTION 15
(Extraterritorial Service)
When the defendant is not residing in the Philippines and he is
not physically around he must be served with summons even if
he is abroad and that is what is called extraterritorial service.
We go back to the basic question:
Q: Can you sue in the Philippines a defendant who is not
residing in the Philippines and who is not around physically?
A: NO, you cannot because there is no way for the court to
acquire jurisdiction over his person EXCEPT when action is in
rem or quasi in rem, like when the action is the personal status
of the plaintiff who is in the Philippines or the properties of the
defendant are in the Philippines. And the venue is where the
plaintiff resides or where the property is situated. That is found
in Section 3, Rule 4:
Rule 4, SEC. 3. Venue of actions against
nonresidents – If any of the defendants do not
reside and is not found in the Philippines, and
the action affects the personal status of the
plaintiff or any property of said defendant
located in the Philippines, the action may be
commenced and tried in the court of the place
where the plaintiff resides, or where the
property or any portion thereof is situated or
found.
Q: If the defendant who is not around and is not residing in
the Philippines can be sued under Rule 4, how will you serve
summons?
A: This is answered by Section 15:
Sec. 15. Extraterritorial service. When the
defendant does not reside and is not found
in the Philippines, and the action affects
the personal status of the plaintiff or
relates to, or the subject of which is,
property within the Philippines, in which
the defendant has or claims a lien or
interest, actual or contingent, or in which
the relief demanded consists, wholly or in
part, in excluding the defendant from any
interest therein, or the property of the
defendant has been attached within the
Philippines, service may, by leave of court,
be effected out of the Philippines by
personal service as under section 6; or by
publication in a newspaper of general
circulation in such places and for such
time as the court may order, in which case
a copy of the summons and order of the
court shall be sent by registered mail to
the last known address of the defendant,
or in any other manner the court may
deem sufficient. Any order granting such
leave shall specify a reasonable time,
which shall not be less than sixty (60) days
after notice, within which the defendant
must answer. (17a)
Extraterritorial service of summons under this Section 15
applies when he following requisites concur:
(a) the defendant is a non-resident;
(b) he is not found in the Philippines; and (c) the action
against him is either in rem or quasi in rem (Jose vs.
Boyon 414 SCRA 216).
A fundamental concept to be remembered in extraterritorial
service of summons is that it does not apply to a defendant who
is a resident of the Philippines. It does not also apply to an
action in personam (Kawasaki Port Service Corporation vs.
Amores 199 SCRA 230; Banco do Brasil vs. CA 333 SCRA 545
[2000]) .
The possible exception to this rule is provided for under Sec. 16
(residents temporarily out of the Philippines) where service may,
by leave of court, be effected out of the Philippines as under the
preceding section.” The preceding section is Section 15. Note
also that Sec. 16 refers to “any action”, hence, either in rem or
in personam.
Q: In what instances can you sue in the Philippine courts a
defendant who does not reside and is not found in the
Philippines? The other way of asking is, when may a defendant
be sued and served with summons by extraterritorial service?
A: Let us break up Section 15. There are four (4) instances when
a defendant who does not reside and is not found in the
Philippines may be sued and summons served by
extraterritorial service, provided the case is in rem or quasi in
rem:
1.) the action affects the personal status of the
plaintiff;
EXAMPLE: A child left behind files a case against
his father for compulsory recognition or
acknowledgement at least to improve his status
because the res is the status of the plaintiff.
2.) when the action relates to or the subject of which
is, property within the Philippines, in which the
defendant has or claims a lien or interest, actual
or contingent;

3.) when the action relates to or the subject of which
is, property within the Philippines in which the
relief demanded consists, wholly or in part, in
excluding the defendant from any interest therein;
or
4.) When the property of the defendant has been
attached within the Philippines – that is the
MAGDALENA case.
NOTE: The action must be either action in rem or
quasi in rem. So an action in personam can never be
filed against a non-resident defendant. That is the
similarity between Section 14 and 15 on the
assumption of the ruling in the MAGDALENA is still
intact. Even if the defendant is not in the Philippines,
the action must be in rem or quasi in rem. That is
their similarity – the action must be classified as in
rem or quasi in rem. That is if we follow the
MAGDALENA ESTATE ruling.
It must be noted that extra-territorial service of summons or
summons by publication applies only when the action is in rem
or quasi in rem. The first is an action against the thing itself
instead of against the defendant's person; in the latter, an
individual is named as defendant and the purpose is to subject
the individual's interest in a piece of property to the obligation
or loan burdening it. An action for specific performance is an
action in personam, hence summons by publication is
improper. (Sps. Jose vs. Sps. Boyon, GR No. 147369, Oct. 23,
2003).
Q: What is the difference between Section 14 and Section 15?
A: The difference between Section 14 and 15 is that in Section
14, the defendant is in the country but his exact whereabouts is
unknown, whereas in Section 15, he is really out of the country
and is no longer residing here.
MODES OF EXTRATERRITORIAL SERVICE
Q: How do you serve summons for such a defendant in Sect.
15?
A: Service may, with leave of court, be effected in the
Philippines:
a.) By personal service under Section 6;
b.) by publication in a newspaper of general
circulation in such places and for such time
as the court may order, in which case a copy
of the summons and order of the court shall
be sent by registered mail to the last known
address of the defendant; or
c.) In any other manner the court may deem
sufficient.
(Carriaga vs. Malaya, 143 SCRA 441)
a.) modes of extraterritorial service; PERSONAL
SERVICE
c.f. Section 6 Rule 14 – Sheriff, deputy sheriff, officer of the
court, other persons authorized by court with valid order. The
court will order that he will be served with summons just like in
Section 6. We will ask the court to allow summons to be served
outside the Philippines by personal service by sending the
sheriff to America. Bigyan siya ng visa, round trip ticket with
pocket money. That is personal service. But that is very
expensive. That could be done pero impractical.
Or, I would like to sue a defendant who is there. I have a friend
who is a balikbayan and he knows where that defendant is
residing. So I will ask the court that the defendant who is
residing in California be served with summons personally
through this person. As if he is deputized or he can send the
summons to the Philippine embassy with a request for an
employee of the embassy to serve the summons personally.
Riano’s commentaries
The personal service using the procedure in Sec. 6 will not have
the effect of acquiring jurisdiction over the non-resident
defendant even if the summons and the copy of the complaint
are personally served and received by him in the country where
he may be found. This is because of the rule that a non-resident
defendant who refuses to come to the country voluntarily
remains beyond the personal processes of the court which
therefore, cannot acquire jurisdiction over him (Banco Espanol-
Filipino vs. Palanca 37 Phil. 921; Perkins vs. Dizon 69 Phil.
186). Besides in a proceeding in rem or quasi in rem,
jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdiction on the court provided that the
court acquires jurisdiction over the res. Nevertheless, summons
is served upon the defendant not for the purpose of vesting the
court with jurisdiction over the person of the defendant but
merely for satisfying the due process requirement (Asiavest
Limited vs. CA 296 SCRA 539). Compliance with due process is
actually the underlying purpose of all modes of extraterritorial
service.
b.) modes of extraterritorial service; BY PUBLICATION IN A
NEWSPAPER OF GENERAL CIRCULATION IN SUCH
PLACES AND
FOR SUCH TIME AS THE COURT MAY ORDER, IN WHICH
CASE A
COPY OF THE SUMMONS AND ORDER OF THE COURT
SHALL BE
SENT BY REGISTERED MAIL TO THE LAST KNOWN
ADDRESS OF
THE DEFENDANT
The second manner is by publication which is similar to Section
14. The court will order the summons and complaint to be
published in a newspaper of general circulation in such places
and for such time as the court may order. In which case a copy
of the summons and order of the court shall be sent by
registered mail to the last known address of the defendant.
So, aside from publication, another copy will be sent by
registered mail to his last known address.
SAHAGUN vs. CA – 198 SCRA 44
FACTS: Defendant is residing permanently in LA, this is an
action in rem. By leave of court, summons was served
through publication by ordering to be published for 3 weeks
in the Philippine Daily Inquirer. Another copy will be sent to
his last address. Here defendant questioned the
publication. According to him, publication should be in a
newspaper in LA, not the Philippines. How can I be
expected to read it when it is published in the Philippines,
nobody will bring it to my attention. But if it is published
here, the probability that I read it is stronger or my neighbor
will bring it to my attention. ISSUE #1: Is the contention of
the defendant correct?
HELD: NO, he is wrong because nothing in the law requires
the publication to be in a foreign newspaper. What it says
is a newspaper of general circulation in such places and for
such time as the court may order. Well, if the court will
order that it should be published in a newspaper in LA,
puwede rin. If it orders that it should be in a local
newspaper, puwede rin because the law does not say ‘only
such places’.
ISSUE #2: What would happen if we will follow the argument
of the defendant which is wrong?
HELD: Another reason why the defendant is wrong is, if we
will require courts to order the publication in a foreign
newspaper, then we will require the court to have a list of all
the newspaper in LA and our courts will be required to
know the rules and rates of publication in LA and suppose
the same thing happens to a defendant in San Francisco,
the courts are required to have a list, rules and rates of
publication in said place. And you can imagine if we have
to do that in every city in every country in the world.
Imagine the trouble? It is requiring the court too much.
“In fine, while there is no prohibition against availing of a
foreign newspaper in extraterritorial service of summons,
neither should such publication in a local newspaper of
general circulation be altogether interdicted since, after all,
the rule specifically authorizes the same to be made in such
places and for such time as the court concerned may order.
If the trial court should be required to resort to publication
in a foreign newspaper it must have at hand not only the
name and availability of such newspaper or periodical. We
can very well anticipate the plethora of problems that would
arise if the same question on nonresident defendants is
replicated in
the other countries of the world.”
ISSUE #3: Is extraterritorial service of summons under
Section 15 a mode of acquiring jurisdiction over the person
of the defendant?
HELD: NO, even if you will publish the summons a
hundred times in a newspaper, still the Philippine court will
not acquire jurisdiction over the person of the defendant
because it is simply out of the country. Even if he is served
with summons, our processes have no effect outside
Philippine territory.
Actually, there is no need to acquire jurisdiction over the
person of the defendant. What is important is that res is in
the country so we can enforce the judgment so that
ownership may be transferred to plaintiff. So, hindi
kailangan ang jurisdiction over his person.
ISSUE #4: What is then the purpose of the requirement of
publication? Why will I be required to publish but just the
same the court will not acquire jurisdiction over his
person?
HELD: The purpose of publication is to comply with the
requirement of due process. He should be informed before
he loses his property. Remember that he has properties in
the Philippines which you can want to take away form him.
Remember the principle that if there is no way for the court
to acquire jurisdiction over the person of the defendant, the
substitute is jurisdiction over the res, and the res is
property here. So, the judgment will not be useless and it
can be enforced. But at least, the owner who is abroad
should be informed about it.
“Service of summons on a nonresident defendant who is not
found in the country is required, not for purposes of
physically acquiring jurisdiction over his person but simply
in pursuance of the requirements of fair play, so that he
may be informed of the pendency of the action against him
and the possibility that property in the Philippines
belonging to him or in which he has an interest may be
subjected to a judgment in favor of a resident, and that he
may thereby be accorded an opportunity to defend in the
action, if he be so minded. The only relief that may be
granted in such an action against such a nonresident
defendant, who does not choose to submit himself to the
jurisdiction of the Philippine court, is limited to the res.”
That is why also in the case of SAHAGUN, the SC emphasized
that if the summons is served by publication, any judgment that
the court can render is only good for the res. But if he submits
now to the jurisdiction of the court by filing an answer or by
hiring a lawyer in the country, the court can now render also a
judgment in personam against him. But if he will not submit, ok
lang because anyway, the res is here. [bahala siya… kung san
siya masaya, ti suportahan ta!]
EXAMPLE: I will file a case against a non-resident defendant for
recovery of a piece of land and damages. Well, the claim for
recovery of land is in rem. The claim for damages is in personam.
He is summoned by publication and based on the SAHAGUN
ruling, the court can only render judgment insofar as the land is
concerned. It cannot render judgment on the damages because
that is in personam. But if he files an answer, he is now
submitting his person to the jurisdiction of the court. There
could now be a valid judgment not only on the res but also on
the damages. That was the explanation in the case of
SAHAGUN.
The relief is limited to the res so there could be no relief for
damages unless he voluntarily submits himself to the
jurisdiction of the court.
c.) modes of extraterritorial service; IN ANY OTHER
MANNER WHICH THE COURT MAY DEEM SUFFICIENT
That is a very general term. A good example of that was what
happened in the case of
CARRIAGA, JR. vs. MALAYA – 143 SCRA 441
FACTS: Plaintiff files a case against his father in the US who
has no intention of coming back in the Philippines, for
compulsory acknowledgement or
recognition as an illegitimate child. And he is
suing as an indigent litigant.
Suppose the court will say, “Do you know the address of
your father in the U.S.?” Plaintiff, “Yes, and I even know the
zip code.” Judge, “If we will mail the complaint and the
summons by registered mail in the post office, that will cost
you P15 to P30. Kaya mo ba?” Plaintiff, “Siguro. I will raise
that amount.”
That is what happened in the case of MALAYA. They mailed
the summons abroad and the defendant received it. The
defendant questioned.
ISSUE: Is there a valid service of summons under Section 15
through registered mail?
HELD: YES. It would fall under “In any other manner the
court may deem sufficient.” And that is what exactly
happened in this case at bar where the court allowed the
service of summons abroad by a registered mail. Of course,
the defendant received the letter but still challenged the
jurisdiction of the court, the manner of service of summons
on the ground that it is not by personal service or
publication but by registered mail.
And since the defendant has received the summons, due
process has been served and the case can now proceed.
So in other words, it is very queer. The SC said extraterritorial
service of summons by registered mail may fall under the third
mode of service under Section 17 (now, Section 15) “In any
other manner the court may deem sufficient.” There is no denial
of due process to be informed because you were informed so you
cannot resort to technicality.
Q: Is there such a thing as service of summons by registered
mail under Rule 14?
A: NONE. Only personal service or by publication. Unlike in
Rule 13, when you serve and file a pleading there is such a
thing as service by registered mail.
Q: But how come in MALAYA case it is allowed?
A: Because it was considered as falling under the general
phrase, “In any other manner the court may deem sufficient”
not because it is allowed but the court considered it as deemed
covered under the phrase.
Q: If the court allows service of summons abroad, then what is
the period to file an answer?
A: The non-resident is given not less than 60 days to file an
answer. It is given a longer period in order to give him more
time. This is related with Section 1 rule 11: “The defendant shall
file his answer to the complaint within 15 days after service of
summons, UNLESS a different period is fixed by the court.”
And take note that under Section 17, there must be a motion to
effect service of summons by publication.
Sec. 17. Leave of court. Any application to
the court under this Rule for leave to
effect service in any manner for which
leave of court is necessary shall be made
by motion in writing, supported by
affidavit of the plaintiff or some person on
his behalf, setting forth the grounds for
the application. (19)
He must file a motion under Section 17 to effect service of
summons by publication. The court will then issue an order.
Now in 1996, there was a case decided by the SC on the
extraterritorial service of summons. The case of
VALMONTE vs. CA – 252 SCRA 92 [1996]
FACTS: Here, the defendant is Lourdes Valmonte who is a
foreign resident. She is residing abroad. Her husband, Alfredo
Valmonte, who is also her attorney, has a law office in the
Philippines. He is Atty. Valmonte – yung mga Valmonte sa
checkpoint cases in Constitutional law.
He is an activist-lawyer. So, his wife is residing
abroad but he is here, because he is practicing in the
Philippines.
Now, the sister of Mrs. Valmonte filed a case against her for
partition of real property. You know that you have to
implead all the co-owners. The summons intended for
Lourdes was served on her husband in the latter’s law
office because anyway, the husband is here.
ISSUE: Was there a valid service of summons on Lourdes
Valmonte?
HELD: There is NONE. There was no valid service of summons.
REASON #1: First of all, the case at bar is an action for
partition and accounting under Rule 69. So, it is an action
quasi in rem. Since this is an action quasi in rem and
Lourdes Valmonte is a non-resident who is not found in the
Philippines, summons on her must be in accordance with
Rule 14, Section 15. So you must follow the modes of
service under Section 15 because the action is quasi in rem.
In this case, the service of summons was not effected
personally because it was served on the husband. There
was also no publication. The only possibility is the third
one, “in any other manner the court may deem sufficient.”
But the third mode applies only when you are serving the
summons abroad. You cannot apply this when you are
serving the summons in the Philippines. So it does not also
fall under the third mode. This mode of service, like the first
two, must be made outside of the Philippines such as
through the Philippine Embassy in the foreign country
where the defendant resides.
REASON #2: Under Section 17, leave of court is required
when serving summons by publication. There must be a
motion where the court will direct that the summons be
served in that manner.
In this case, was there any motion filed here? Wala man ba.
Was there any order of the court authorizing it? Wala rin.
So it does not comply with Sections 15 and 17.
REASON #3: The third most important reason is that, when
the defendant is a non-resident and being served abroad
under Section 15, the law guarantees a minimum of sixty
(60) days to answer the complaint pursuant to Section 15.
And here, she was only given fifteen (15) days to file the
answer. Therefore, there was an erroneous computation of
the period to answer.
“Finally, and most importantly, because there was no order
granting such leave, Lourdes Valmonte was not given
ample time to file her Answer which, according to the rules,
shall be not less than sixty (60) days after notice. It must be
noted that the period to file an Answer in an action against
a resident defendant differs from the period given in an
action filed against a nonresident defendant who is not
found in the Philippines. In the former, the period is fifteen
(15) days from service of summons, while in the latter, it is
at least sixty (60) days from notice.”
So those are the three main reasons cited by the SC on why
there was improper service of summons on Lourdes Valmonte
under the rules.

SERVICE OF SUMMONS BY PUBLICATION UNDER SECTION
16
Sec. 16. Residents temporarily out of the
Philippines. When any action is commenced
against a defendant who ordinarily resides
within the Philippines, but who is
temporarily out of it, service may, by
leave of court, be also effected out of the
Philippines, as under the preceding
section. (18a)
In an action in personam, personal service of summons or, if
this is not possible and he cannot be personally served,
substituted service, as provided in Sec. 7, Rule 14 of the Rules
of Court, is essential for the acquisition by the court of
jurisdiction over the person of a defendant who does not
voluntarily submit himself to the authority of the court. If the
defendant cannot be served a summons because he is
temporarily abroad, but is otherwise a Philippine resident,
service of summons may, by leave of court, be made by
publication. Otherwise stated, a resident defendant in an action
in personam, who cannot be personally served a summons, may
be summoned either by means of substituted service in
accordance with Section 7, Rule 14 of the Rules of Court, or by
publication as provided in Sections 15 and 16 of the same Rule.
In all of these cases, it should be noted, defendant must be a
resident of the Philippines, otherwise an action in personam
cannot be brought because jurisdiction over his person is
essential to make a binding decision.
On the other hand, if the action is in rem or quasi in rem,
jurisdiction over the person of the defendant is not essential for
giving the court jurisdiction so long as the court acquires
jurisdiction over the res. If the defendant is a non resident and
he is not found in the country, summons may be served
extraterritorially in accordance with Sec. 15, Rule 14 of the
Rules of Court.
There are only four instances wherein a defendant who is a
nonresident and is not found in the country may be served a
summons by extraterritorial service, to wit:
(1) when the action affects the personal status of the
plaintiff;
(2) when the action relates to, or the subject of which is
property within the Philippines, on which the
defendant claims a lien or an interest, actual or
contingent;
(3) when the relief demanded in such action consists,
wholly or in part, in excluding the defendant from any
interest in property located in the Philippines; and
(4) when the defendant non-resident's property has been
attached within the Philippines. In these instances,
service of summons may be effected by
a. personal service out of the country, with leave of
court;
b. publication, also with leave of court; or
c. any other manner the court may deem sufficient.
In such cases, what gives the court jurisdiction in an action in
rem or quasi in rem is that it has jurisdiction over the res, i.e.,
the personal status of the plaintiff who is domiciled in the
Philippines or the property litigated or attached. Service of
summons in the manner provided in Section 15, Rule 14 of the
Rules of Court is not for the purpose of vesting the court with
jurisdiction, but for complying with the requirements of fair play
or due process, so that the defendant will be informed of the
pendency of the action against him; and the possibility that
property in the Philippines belonging to him, or in which he has
an interest, might be subjected to a judgment in favor of the
plaintiff and he can thereby take steps to protect his interest if
he is so minded. (Regner v. Logarta, GR No. 168747, Oct. 27,
2007).
Summary:
A. Defendant is a resident but identity or whereabouts
unknown (Sec. 14)....in any action (in rem, in
personam, quasi in rem) .... summons may be served
by publication in a newspaper of general circulation
with leave of court;
B. Defendant is a non-resident and not found in the
Philippines (Sec. 15) ... only in rem and quasi in rem
1. affects the personal status of plaintiff;
2. relates to or the subject of which is property
located in the Philippines in which defendant has
a
lien or interest; or
3. demands a relief which consists wholly or in part
in excluding the defendant from any interest in
any
property in the Philippines; or
4. property of defendant has been attached in the
Philippines) ....
service is extraterritorial
(a) with leave of court serve
outside the
Philippines by personal service; or
(b) with leave of court serve by publication in a
newspaper of general circulation in which
case a copy of the summons and order the
court must also be sent by registered mail to
the last known address of defendant; or
(c) any other manner the court deem sufficient.
C. Defendant is a resident but temporarily out of the
Philippines (Section 16) .... any action .... By
substituted service or with leave of court, personal
service out of the Philippines as under extraterritorial
service.
Note: In all these cases, it should be noted that defendant must
be a resident of the Philippines, otherwise, an action in
personam cannot be brought because jurisdiction over his
person is essential to make a binding decision (Belen vs.
Chavez, GR No. 175334, March 28, 2008).
Like in the case of an unknown defendant or one whose
whereabouts are unknown, the rule affecting residents who are
temporarily out of the Philippines applies in any action.
Let it be noted that summons by publication may be effected
against the defendant because publication is one of the modes
of service of summons under Sec. 15. But this rule authorizing
summons by publication appears superfluous and unnecessary.
Without such provision, a resident defendant temporarily
outside of the Philippines may still be served through the
substituted service under Sec. 7. This is because even if he is
abroad, he has a residence in the Philippines or a place of
business and because certainly, he cannot be served within a
reasonable period because of his absence in the Philippines,
this absence would now trigger the application of the rule on
substituted service of summons (Montalban vs. Maximo).
Q: What is the main difference between defendant in Section 15
and in Section 16?
A: In section 15, defendant is residing abroad and not even
found in the Philippines, while in Section 16 defendant is
residing in the Philippines but temporarily out of the
Philippines.
EXAMPLE: Suppose Ms. Torres is in a world tour. She is
considered a resident defendant temporarily out of the
Philippines. I can sue her but it will take months before she
comes back. The problem is, your action will already prescribe.
Q: How will you serve summons to him?
A: According to Section 16, you can serve summons just like in
Section 15 – through personal service, by publication, and in
any other manner the court may deem sufficient. So one option
is to wait for him to come back and then serve the summons
personally.
One of the leading cases on this type of defendant was in the old
case of:
MONTALBAN vs. MAXIMO – 22 SCRA 1070
FACTS: In this case, the defendant is residing in the
Philippines but on a world tour and he will be out for so
many months. Naga-tour ba! It was at that time when the
summons was served in his residence. Well of course, he is
not there. But there was somebody left in the house. So,
the sheriff said, “Who are you?” And the person said that he
is the one in charge here. “When is your boss coming
back?” Mga four or five months pa.
So, the sheriff served upon the person in charge the
summons. So, the sheriff resorted to substituted service
under Section 7. And there was a default judgment.
Pagbalik ng tao, defaulted na siya, meron ng execution. So
he questioned the service of summons because under
Section 16, in relation to Section 15, summons must be
served with leave of court by personal, publication or in any
other manner.
ISSUE #1: Can substituted service of summons be applied
to a defendant who is residing in the Philippines but
temporarily out?
HELD: YES. Substituted service is also applicable. Unlike
Section 15 where the defendant has no residence here, you
have a residence man. The sheriff resorted to substituted
service by leaving it to the person in charge, a person of
sufficient age and discretion because for justifiable reasons,
substituted service is also applicable even if the defendant
is outside of the Philippines.
It is true that personal service of summons is preferred. But
if the personal service cannot be effected within a
reasonable time, the sheriff can resort to substituted
service. And in your case, the sheriff cannot serve
personally because you will be out of the country for the
next four or five months. So the sheriff has to resort to
substituted service.
ISSUE #2: Second, sabi niya, “Equity na lang. That is
unfair, eh, because I really had no knowledge about the
case. I failed to answer because you see, during the five
months when I was abroad, I never had the opportunity to
call up the one I left behind. So there was no opportunity for
me to ask him what has been happening there. He has also
no opportunity to tell me about what happened because he
does not know where I was. So I only learned about it after
five months. So in the name of equity please set aside the
judgment.”
HELD: In the name of equity, we will not set aside the
judgment. You did not even bother to call and tell the
person left where you were. When you called up perhaps the
person left could notify you about the summons. You are
very irresponsible! What kind of a person are you? You will
leave for abroad and you will not even bother to call up to
find out what is going on. So, wala!
So the case of MONTALBAN provides that the service of
summons under Section 16 on the defendant doesn’t prevent
the application of Section 7 in addition to Section 15. Summons
can be served abroad just like in Section 15 but it does not
mean to say that you cannot apply Section 7 because anyway it
does not say MUST, it uses MAY.
And one thing that you will notice in Section 16 is that the
action is IN PERSONAM. It is purely an action for damages. So
in Section 16, when residents are temporarily outside of the
Philippines, there could be also substituted service of summons
in addition to Section 15 and the action could be in personam
as distinguished from Sections 14 and 15 where the action
must be in rem or quasi in rem.
So the action in Section 16 need not be an action in rem or
quasi in rem because he is actually residing in the Philippines
and only temporarily out.
SERVICE OF SUMMONS IN EXCEPTIONAL CASES
1.) SERVICE OF SUMMONS UPON AN ENTITY
WITHOUT JURIDICAL PERSONALITY
Sec. 8. Service upon entity without juridical
personality. When persons associated in an
entity without juridical personality are
sued under the name by which they are
generally or commonly known, service
may be effected upon all the defendants by
serving upon any one of them, or upon the
person in charge of the office or place of
business maintained in such name. But
such service shall not bind individually
any person whose connection with the
entity has, upon due notice, been severed
before the action was brought. (9a)
Section 8 is related to Rule 3, Section 15:
Rule 3, Sec. 15. Entity without juridical
personality as defendant. When two or more
persons not organized as an entity with
juridical personality enter into a
transaction, they may be sued under the
 name by which they are generally or
commonly known.
In the answer of such defendant, the
names and addresses of the persons
composing said entity must all be
revealed. (15a)
Q: Since you can sue someone without juridical personality,
how do serve summons upon him?
A: Under Section 8, by serving summons upon anyone of them,
that is sufficient. Service upon any of those defendants is
service for the entire entity already. You may also serve
summons upon the person in charge of the office of the place of
business. He may not necessarily be the owner but in-charge of
the office, he can be served with summons.
2.) SERVICE OF SUMMONS UPON SOMEBODY WHO IS
A PRISONER
Sec. 9. Service upon prisoners. When the
defendant is a prisoner confined in a jail
or institution, service shall be effected
upon him by the officer having the
management of such jail or institution
who is deemed deputized as a special
sheriff for said purpose. (12a)
Q: How do you serve summons to somebody who is a prisoner?
A: Under Section 9, summons shall be served through the
person in-charge of the jail like the jail warden. The jail warden
is automatically considered as deputized to serve it to the
prisoner. It is not necessary for the court officer to go into the
jail and look for the prisoner.
3.) SERVICE OF SUMMONS UPON MINORS AND
INCOMPETENTS
Sec. 10. Service upon minors and
incompetents. When the defendant is a
minor, insane or otherwise an
incompetent, service shall be made upon
him personally and on his legal guardian if
he has one, or if none, upon his guardian
ad litem whose appointment shall be
applied for by the plaintiff. In the case of a
minor, service may also be made on his
father or mother. (10a,
11a)
Relate this to Rule 3, Section 3 on Representatives as Parties –
trustee of a trust, guardian, administrator, etc.
Q: When you sue a minor or an insane, how is summons
served?
A: You serve the summons to the father or mother in the case of
minor. For a legal guardian, in the case of incompetent people
or to the minor himself.
Q: The law says that “service shall be made upon him (the
minor) personally” when he may not understand what it is all
about? Baka itatapon lang niya iyon.
A: Because under Rule 3, he is the real party in interest.
4.) WHEN SERVICE OF SUMMONS ON DOMESTIC
PRIVATE JURIDICAL ENTITY.
Sec. 11. Service upon domestic private juridical
entity. When the defendant is a corporation,
partnership or association organized under
the laws of the Philippines with a juridical
personality, service may be made on the
president, managing partner,
general manager, corporate secretary,
treasurer, or in-house counsel. (13a)
What do you mean by domestic? A corporation or association
organized under Philippine laws.
Now, how do you serve summons to a corporation? Actually,
they have no physical existence, they only exist by legal friction.
Ordinarily summons must be served to a human being, to
somebody who is supposed to be the representatives. Therefore,
common sense will tell that in case of a corporation, you have to
serve the summons through people who run the corporation.
Q: To whom do you serve summons if it is a corporation?
A: In the case of a corporation, summons is served upon its
officers.
Q: Who are these officers?
A: President, managing partner, general manager, corporate
secretary, treasurer, in-house counsel.
PRESIDENT. Sometimes, the president of a corporation is called
the Chief Executive Officer or CEO.
MANAGING PARTNER. This is in case of a partnership.
GENERAL MANAGER. Under the prior law, the word there is
simply “manager.” Now they added the word “general.” But
even in the old law, the word “manager” is interpreted as
general manager. In a corporation, there are so many managers
like branch managers. General manager is the over-all manager
of the corporation throughout the Philippines. He is usually
based in the head office.
CORPORATE SECRETARY. The prior law only used the word
“secretary” but it has been interpreted as corporate secretary,
not the typist secretary. The corporate secretary is the
custodian of the records of the corporation. He is also a
stockholder, because you cannot be a corporate secretary
unless you are a stockholder. The new law has already
emphasized ‘corporate secretary.’ Before illiterate sheriffs used
to serve summons on secretary-typist.
TREASURER. The prior law says “cashier” now they have
changed the word to ‘treasurer.’ It is because treasurer is
actually an officer also. He is just like a budget secretary of the
government. Cashiers are ordinary employees which is more on
clerical works.
IN-HOUSE COUNSEL. He is the lawyer of the company. He is
actually employed by the corporation. He takes care of the legal
problems. In Manila, for instance, most of the corporations
there have in-house counsels. Not so much here in Davao.
Like Ayala Corporation in Manila, they have internal legal
counsel more or less 10 while Bank of Philippine Island has
around 15. But these corporations hire lawyers from the
outside when it comes to sensitive cases. They are referred as
external legal counsel.
In the fairly recent case of Paramount Insurance Corp. vs. A.C.
Ordonez Corporation GR 175109 August 6, 2008 the Court
reiterated the rule that Sec. 11 sets out an exclusive
enumeration of the officers who can receive summons on behalf
of the corporation and that service of summons to someone
other than those enumerated is not valid. The Court further
emphasized that the argument of substantial compliance is no
longer compelling. Declared the Court:
“We have ruled that the new rule … is restricted, limited and
exclusive … Had the Rules of Court Revision Committee
intended to liberalize the rule on service of summons, it could
have done so in clear and concise language. Absent a manifest
intention to liberalize the rule, strict compliance with Section
11, Rule 14 of the 1997 Rules of Civil Procedure is required.”
The rule that summons may be served on internal legal counsel,
although appearing for the first time in the 1997 rules, is
actually an old rule. It has been ruled already in some cases
that service of summons upon an in-house counsel of a
corporation is valid. It binds the corporation under the ruling in
the case of PHILIPPINE OIL MKTG. CORP. vs. MARINE DEV’T
CORP. (117 SCRA 879) and FAR CORPORATION vs.
FRANCISCO(145 SCRA 197) that the inhouse counsel if served
with summons, there is a valid service, because anyway, if you
serve it to the general manager or the President, chances are it
will also be referred to him kay siya man ang abogado. So the
in-house counsel is new and it confirms what the SC said.
Two (2) Persons in the OLD RULE not mentioned in the new
rules:
But here is the change. In the previous law, you can serve the
summons on any of the directors of the corporation –
MEMBERS of the BOARD ba. Now, wala na yan ngayon. I think
the only member of the Board here is the Corporate Secretary.
So, the directors, hindi na puwede.
But here is the most radical change. The word ‘AGENT,’ nawala
na! Did you notice under the old law, there is agent. The word
agent was so broad and so general that the SC has actually
included there so many people.
Like in the case of R TRANSPORT CORPORATION vs. CA, (241
SCRA 77 [1995]), the summons was served to the Operations
Manager of the corporation and the SC said the service was
valid because he is considered as an agent.
In the 1993 case of GESULGON vs. NLRC (219 SCRA 561), the
summons was served on the Assistant General Manager of the
corporation and the SC said that the service was valid because
he is an agent.
In the case of FAR CORPORATION vs. FRANCISCO (146 SCRA
197), the summons was served on the Chief of Finance and
Administrative Section of the corporation and the SC said that
he will fall under the word agent.
In the cases of DELTA MOTORS vs. MASAGUN (70 SCRA 598)
and ATM TRUCKING vs. BUENCAMINO (124 SCRA 434) the
service of summon an employee employed in a corporation does
not bind the corporation because an ordinary employee who is
not an officer is not considered as agent.
However, there are cases were the service of summons to an
ordinary employee who is not an officer was valid. Among which
are:
The case of SUMMIT TRADING vs. ABENDANO (135 SCRA 397
[1985]), the summons was served on the confidential secretary
of the President and the SC said the service is valid. She is
qualified as agent.
And in the cases of J AND J CORPORATION vs. CA (158 SCRA
466), reiterated in the case of GOLDEN FARMS vs. SUN BAR
DEVELOPMENT CORPORATION (214 SCRA 295), the
summons was served on a mere clerk of the corporation. So, he
is not even an officer. But the clerk gave it to the President. The
SC said that the defect is cured. The clerk could be considered
as an agent. The need for speedy justice must prevail over
technicality. So, the word ‘agent’ has become very broad and it
practically covers all corporate officers who are presumed to be
responsible.
Now, in the 1997 rules, the word ‘agent’ disappeared. And the
law is very clear: President, managing partner, general manager,
corporate secretary, treasurer, in-house counsel.
Now, suppose you will serve it to the Branch manager? Of
course the corporation will say that there is no valid service of
summons. OK, it is void. But look at the case of GESULGON,
etc. But that is under the 1964 rules when you are deemed to
be an agent. But now, it is very specific. The intention of the
new rules is to limit the service to anyone of these. That is why
they removed the word ‘agent.’
And if that interpretation prevails that the intention of the rules
is to limit to these people, it is now very difficult to sue a
corporation based in Makati if you are here in Davao because
your summons has to be coursed through them. And these
people are not here! The President is not here; The General
Manager, etc. They are all based in the head office. Corporate
Secretary, treasure, in-house counsel – Doon man ang opisina
nila ba. The ones based here are branch managers and they are
now disqualified. If that is the intention of the law, my golly!
That is another headache!
It can be argued both sides eh. Despite this, we should stick to
the principle that technicalities should not give way.
Suppose I will serve it on the Branch Manager. He forwarded it
to their President in Manila. Eh ano pa ngayon ang reklano
ninyo? Anyway you already acquired it, you learned about it.
Can you insist that the court has no jurisdiction when actually
you are well aware already of the suit? You can say, let us go to
reality. But it can also be argued under the old law. Precisely, if
the intention is to make everybody a responsible officer, then
the word ‘agent’ should have been retained. The intention of the
law is to limit only to these people. So, both sides can be
defended.
Section 11 thus becomes another controversial provision.
Whether this change has abrogated GESULGON, FAR EAST
CORP., SUMMIT TRADING na pwede. All those doctrines have
now been rendered obsolete because of this change. All those
cases were decided based on the word ‘agent’ – are they agents?
At least there is basis, eh. Now, the word ‘agent’ is no longer
there. That is why this is a controversial provision.
E.B. VILLAROSA LTD vs. BENITO – 312 SCRA 65 [Aug. 6,
1999]
FACTS: E.B. Villarosa & Partners is a limited partnership
with principal office address at 102 Juan Luna St., Davao
City and with branch offices at Parañaque and Cagayan de
Oro City (CDO). Villarosa and Imperial Development (ID)
executed an Agreement wherein Villarosa agreed to develop
certain parcels of land in CDO belonging to ID into a
housing subdivision. ID, filed a Complaint for Breach of
Contract and Damages against Villarosa before the RTC
allegedly for failure of the latter to comply with its
contractual obligation.
Summons, together with the complaint, were served upon
Villarosa, through its Branch Manager Wendell Sabulbero at
the address at CDO but the Sheriff’s Return of Service
stated that the summons was duly served "E.B. Villarosa &
Partner thru its Branch Manager at their new office Villa
Gonzalo, CDO, and evidenced by the signature on the face
of the original copy of the summons."
Villarosa prayed for the dismissal of the complaint on the
ground of improper service of summons and for lack of
jurisdiction over the person of the defendant. Villarosa
contends that the RTC did not acquire jurisdiction over its
person since the summons was improperly served upon its
employee in its branch office at CDO who is not one of those
persons named in Sec. 11, Rule 14 upon whom service of
summons may be made. ID filed a Motion to Declare
Villarosa in Default alleging that Villarosa has failed to file
an Answer despite its receipt allegedly on May 5, 1998 of
the summons and the complaint, as shown in the Sheriff's
Return.
HELD: “We agree with Villarosa. Earlier cases have uphold
service of summons upon a construction project manager; a
corporation's assistant manager; ordinary clerk of a
corporation; private secretary of corporate executives;
retained counsel; officials who had charge or control of the
operations of the corporation, like the assistant general
manager; or the corporation's Chief Finance and
Administrative Office. In these cases, these persons were
considered as "agent" within the contemplation of the old
rule.”
“Notably, under the new Rules, service of summons upon an
AGENT of the corporation is NO LONGER authorized.”
“The designation of persons or officers who are authorized to
accept summons for a domestic corporation or partnership
is now limited and more clearly specified in Section 11, Rule
14. The rule now states "general manager" instead of only
"manager"; "corporate secretary" instead of "secretary"; and
"treasurer" instead of "cashier." The phrase "agent, or any of
its directors" is conspicuously deleted in the new rule.”
“A strict compliance with the mode of service is necessary to
confer jurisdiction of the court over a corporation. The
officer upon whom service is made must be one who is
named in the statute; otherwise the service is
insufficient. . . The liberal construction rule cannot be
invoked and utilized as a substitute for the plain legal
requirements as to the manner in which summons should
be served on a domestic corporation.”
“Service of summons upon persons other than those
mentioned in Section 13 of Rule 14 (old rule) has been held
as improper. Accordingly, we rule that the service of
summons upon the branch manager of Villarosa at its
branch office at CDO, instead of upon the GM at its
principal office at Davao City is improper. Consequently, the
RTC did not acquire jurisdiction over the person of
Villarosa. The fact that Villarosa filed a belated motion to
dismiss did not operate to confer jurisdiction upon its
person. There is no question that the Villarosa’s voluntary
appearance in the action is equivalent to service of
summons.”
“Before, the rule was that a party may challenge the
jurisdiction of the court over his person by making a special
appearance through a motion to dismiss and if in the same
motion, the movant raised other grounds or invoked
affirmative relief which necessarily involves the exercise of
the jurisdiction of the court, the party is deemed to have
submitted himself to the jurisdiction of the court. This
doctrine has been abandoned in the case of La Naval Drug
Corporation vs. CA which became the basis of the adoption
of a new provision in Section 20 of Rule 14.”
“Section 20 now provides that the inclusion in a motion to
dismiss of other grounds aside from lack of jurisdiction over
the person of the defendant shall not be deemed a
voluntary appearance. The emplacement of this rule clearly
underscores the purpose to enforce strict enforcement of
the rules on summons. Accordingly, the filing of a motion to
dismiss, whether or not belatedly filed by the defendant, his
authorized agent or attorney, precisely objecting to the
jurisdiction of the court over the person of the defendant
can by no means be deemed a submission to the
jurisdiction of the court.”
“There being no proper service of summons, the trial court
cannot take cognizance of a case for lack of jurisdiction
over the person of the defendant. Any proceeding
undertaken by the trial court will consequently be null and
void.”
“WHEREFORE, the petition is hereby GRANTED. The assailed
Orders of the public respondent trial court are ANNULLED and
SET ASIDE.”
5.) SERVICE OF SUMMONS UPON FOREIGN PRIVATE
JURIDICAL ENTITY
Sec. 12. Service upon foreign private juridical
entity. When the defendant is a foreign
private juridical entity which has
transacted business in the Philippines,
service may be made on its resident agent
designated in accordance with law for that
purpose, or, if there be no such agent, on
the government official designated by law
to that effect, or on any of its officers or
agents within the Philippines. (14a)
Q: What is the difference between corporation or entity in
Section 11 and Section 12?
A: The entity or corporation under Section 11 is domestic while
under Section 12, the corporation is a foreign corporation but
doing business in the Philippines because the law says, when
the defendant is a foreign private juridical entity which
transacted business in the Philippines…”
When a foreign corporation is not doing business in the
Philippines, it cannot be sued, just like a non-resident
defendant. The best example of a foreign corporation doing
business in the Philippines are air line companies, foreign
banks.
Q: To whom do you serve summons in this case?
A: Well, that is already touched in Rule 11, Section 2. If it has a
designated resident agent, you must serve it to him. If it has
none, then to the appropriate Philippine government officer who
will transmit it to the head office.
Q: What is the period to file answer?
A: Under Rule 11, Section 2, the period to file an answer is
longer if summons is served on a government official designated
by law for that purpose, the period is 30 days. But if the foreign
corporation has a designated resident agent in the Philippines
and summons is served on him, the period to answer is only 15
days just like any other defendant.
NORTHWEST ORIENT AIRLINES vs. CA – 241 SCRA 192
[1995]
HELD: When there is a designated resident agent to receive
summons, service of summons to that person is exclusive.
He is the only one to be served with summons in behalf of
the corporation sued. So, if there is a designated agent,
siya lang. He is the only person authorized to receive the
summons.
“If a foreign corporation has designated an agent to receive
summons the designation is exclusive. Service of summons
is without force and gives to a court no jurisdiction unless
made upon him.”
BALTAZAR vs. CA – 168 SCRA 354 [1988]
FACTS: The summons was to be served on the corporation
at an address. But when the sheriff went to that address, he
was told by the security guard that the corporation was no
longer holding office there. Lumipat na sa ibang lugar.
Therefore, we do not know already.
So, ni-report niya, “Hindi ko makita.” Therefore, the plaintiff
filed a motion in court to be allowed to serve summons by
publication under Section 14 when the whereabouts of the
defendant is unknown. So there was service of summons by
publication.
ISSUE: Was there a valid service of summons by publication?
HELD: There was NONE. The deputy sheriff should have known
what every law school student knows! – that defendant, being a
domestic corporation must have been registered with the SEC
and that the SEC records would therefore reveal, not just the
correct address of the corporate headquarters of the defendant,
but also the address of its officers.
A litigant or process server who has not gone through the
records of the SEC cannot claim to have carried out the
‘diligent inquiry’ required under the law for valid service of
summons by publication upon a domestic corporation.”
So there was no diligent inquiry. You should have gone to the
SEC and look at the records kung saan lumipat. Also with the
address of the officers like the President, you can go to his place
and serve the summons to him. So there was improper service
of summons by publication. Another case was
REBULIDO vs. CA – 170 SCRA 800
FACTS: A corporation committed a wrong and then
pagdemanda, dissolved na. When the action was filed, the
corporation was already dissolved – wala ng juridical
personality.
ISSUE #1: Can you still sue a dissolved corporation?
HELD: YES. Otherwise, if we will say that a corporation
which is already dissolved can no longer be sued, it is very
easy for a corporation to avoid liability by simply dissolving
itself after it commits a wrong.
And secondly, under the Corporation Law, even if you are
already dissolved, there is still a period for winding up
where you can collect. So, it is still functioning. And to say
that it is already dissolved or that it is no longer functioning
is not also true.
ISSUE #2: If that is so, to whom will you now serve the
summons?
HELD: You serve it on the last set of officers. The same
people mentioned – there must be a last President or a last
Corporate Secretary, etc. They are the people who whom
summons should be served.
When a corporation was placed under a Voting Trust
Agreement (VTA), the summons should be served on the
trustee. The President has no more personality – that is an
exception to Section 11. So, when a corporation is placed
under VTA, the summons should be served on the person
in whose favor the VTA was executed because the officers of
the corporation have no more personality to manage the
affairs of the corporation.
FOREIGN ENTITY TRANSACTING BUSINESS IN THE
PHILIPPINES
Finally, going back to foreign private juridical entity, take note
that under the law, the foreign private juridical entity is one
doing business in the Philippines. So, if a foreign corporation is
not doing business in the Philippines, it cannot be sued, just
like a nonresident defendant because the court can never
acquire jurisdiction over that person or foreign corporation. We
know that ‘no?
And the perennial debate is, when is a foreign private
corporation doing or not doing any business in the Philippines?
I think the Corporation Law has so many cases along that line.
EXAMPLE: A Filipino businessman wanted to buy machines
where there is only one manufacturer and supplier which is a
corporation in Europe. This corporation has no office in the
Philippines. The Filipino businessman contracted with the
foreign corporation. He ordered machineries. The foreign
corporation sent its people to deliver the machineries. They
stayed in the Philippines gor a while to check the machines and
to teach the Filipinos how to run it. Q: Now, can that
corporation be used in the Philippine courts?
A: NO, because that foreign corporation is not doing business in
the Philippines. Section 12 does not refer to a foreign
corporation with a single isolated, casual transaction. In the
cases of
PACIFIC MICRONISIAN LINE, INC. vs. DEL ROSARIO GR L-
7154
October 23, 1954
HELD: “‘Doing business’ is construed to mean such
continuity of conduct and intention to establish a
continuous business. An isolated transaction, or
transactions which are occasional, incidental or casual and
which do not evince intent to conduct continuous business
do not constitute ‘doing business in the
Philippines.’”
“In order that a foreign corporation may be regarded as
doing business in the Philippines, there must be continuity
of conduct and intention to establish a continuous
business, such as the appointment of a local agent, and not
one of a temporary character.”
FAR EAST INTERNATIONAL vs. NANKAI KOGYO CO., LTD. –
November 30, 1962
HELD: “Where a single act or transaction of a foreign
corporation is not merely incidental or casual, but is of such
character as distinctly to indicate a purpose on the part of
the corporation to do other business in the Philippines, and
to make the Philippines a base of operations for the conduct
of a part of the corporation’s ordinary business, the
corporation may be said to be ‘doing business in the
Philippines.’”
So, under the rules, a foreign corporation not doing business in
the Philippines cannot be sued. If it enters into a contract with a
Filipino business man, it is not actually doing business. Isa lang
eh! So, technically, that foreign corporation cannot be sued in
the Philippines. Your remedy is to go to Europe and sue that
corporation there. In the case of
LINGER AND FISCHER vs. IAC – 125 SCRA 522
FACTS: A Philippine corporation entered into a contract
with a foreign corporation and then their agreement says
the foreign corporation agrees to be sued in the
Philippines. So practically, puwede. And the problem now
is, to whom will you serve the summons?
When a foreign corporation not doing business in he
Philippines agrees to be sued in the Philippines, how do
you serve summons? Is Section 12 applicable?
HELD: NO, Section 12 is not applicable because in Section
12, the premise is, the foreign private corporation is doing
business in the Philippines. So Section 12 does not apply.
So, how shall we serve the summons?
In the first place, the foreign corporation, which cannot be
sued, agrees to be sued. Their agreement is similar to
venue where we can agree on the venue of the case. Now,
since it is not doing business, it is more accurate to apply
the rules on Section 15 on extraterritorial service of
summons on a non-resident defendant who is not
physically here.
So, summons should be served not in accordance with Section
12 but in accordance with Section 15 on extraterritorial service.
6.) SERVICE OF SUMMONS UPON PUBLIC CORPORATION
Sec. 13. Service upon public corporations.
When the defendant is the Republic of the
Philippines, service may be effected on
the Solicitor General; in case of a
province, city or municipality, or like
public corporations, service may be
effected on its executive head, or on such
other officer or officers as the law or the
court may direct. (10a)
An example of a public corporation is the Republic of the
Philippines. As a rule, they cannot be sued. But in cases where
it can be sued, summons may be effected on the Solicitor
General being the representative of the Republic.
Kung provinces, cities or municipalities, like the City of Davao,
service may be effected on the executive heads such as the
provincial governor, municipal or city mayor.
Summons may also be effected on “such other officer or officers
as the law or the court may direct.” So the court may order that
the summons be served on the city legal officer. Here, there is
still a valid service of summons.
Summary of Service of Summons on Different Entities
A. Entity without juridical personality (Sec. 8) .... upon
any or all the defendants being sued under common
name; or person in charge of the office.
B. Minors and incompetents (Section 10) .... in case of
minors: by serving upon the minor regardless of age,
and upon his legal guardian or also upon either of his
parents. .... in case of incompetents - by serving on
him personally and upon his legal guardian, but not
upon his parents, unless they are his legal
guardians.... In any event, if the minor or incompetent
has no legal guardian, the plaintiff must obtain the
appointment of a guardian ad litem for him.
C. Prisoner (Section 9) .... Serve on officer having
management of the jail or prison (warden).
D. Domestic private juridical entity (Section 11) ..... to the
president, managing partner,, general manager,
corporate secretary, treasurer, or in house counsel.
Note that service upon a person other than those
mentioned is invalid and does not bind the
corporation. the enumeration is exclusive.
E. Defendant is a foreign private juridical entity (Section
12) .... Serve on the resident agent; or if none, on the
government official designted by law; or any officer or
agent of the corporation within the Philippines.
F. Public corporation (Section 13) .... In case defendant is
the Republic of the Philippines by serving upon the
Solicitor General; In case of province, city or
municipality or like corporations, by serving on its
executive head or on such other officer or officers as
the law or the court may direct.
Sec. 18. Proof of service. The proof of service
of a summons shall be made in writing by
the server and shall set forth the manner,
place, and date of service; shall specify any
papers which have been served with the
process and the name of the person who
received the same; and shall be sworn to
when made by a person other than a sheriff
or his deputy. (20)
This is called a SHERIFF’S RETURN where the sheriff will state
the manner (personal or substituted, publication); place and
date; to whom served. Then you specify that you serve also the
complaint. Name of person who received the same.
Q: Must the return be sworn to?
A: NO NEED, except when made by a person other than a
sheriff or his deputy. Remember that summons can be served
by other person authorized by the court to do so.
Sec. 19. Proof of service by publication. If the
service has been made by publication,
service may be proved by the affidavit of
the printer, his foreman or principal clerk,
or of the editor, business or advertising
manager, to which affidavit a copy of the
publication shall be attached, and by an
affidavit showing the deposit of a copy of
the summons and order for publication in
the post office, postage prepaid, directed
to the defendant by registered mail to his
last known address.
(21)
 VOLUNTARY AND SPECIAL APPEARANCE

Sec. 20. Voluntary appearance. The

defendant's voluntary appearance in the
action shall be equivalent to service of
summons. The inclusion in a motion to
dismiss of other grounds aside from lack
of jurisdiction over the person of the
defendant shall not be deemed a voluntary
appearance.
(23a)

The first mode of acquiring jurisdiction over the person of the

defendant is service of summons. However, even when there is
no service of summons, or if there is improper service of
summons, if the defendant files an answer, then in effect, he is
submitting himself to the jurisdiction of the court and the court
acquires jurisdiction over his person by voluntary appearance.

Voluntary appearance is not necessarily an answer. Like a

motion for an extension of time to file an answer, or a motion for
bill of particulars – that is indicative of his submission to the
jurisdiction of the court.

That is why we said, lack of jurisdiction over the person of the

defendant because of absence of service of summons or
improper service of summons, can be waived by voluntary
appearance. That is the second mode.

Any form of appearance in court, by the defendant, by his agent

authorized to do so, or by attorney, is equivalent to service of
summons, except where such appearance is precisely to object
to the jurisdiction of the court over the person of the defendant.

Now, of course, when a defendant files a motion to dismiss on

the ground that the court has not acquired any jurisdiction over
his person, that is not a voluntary appearance. That is a
SPECIAL APPEARANCE precisely to question the jurisdiction of
the court over his person.

A special appearance is not indicative of the intention to submit

to the jurisdiction of the court. Otherwise, it becomes absurd if I
will file a motion to dismiss questioning the jurisdiction of the
court over my person and then the court will say, “Well, by filing
the motion to dismiss, you are also voluntarily submitting to the
jurisdiction of the court.” Definitely, that is not the appearance
contemplated by Section 20.

Now, the second sentence, “The inclusion in a motion to dismiss

of other grounds aside from lack of jurisdiction over the person
of the defendant shall not be deemed a voluntary appearance.” Rule 15
What is the meaning of that? Well, that principle is taken from
the ruling of the SC in the leading case of LA NAVAL DRUG MOTIONS
CORPORATION vs. CA, 236 SCRA 28, which we will discuss
more in detail when we reach Rule 16 on Motion to Dismiss.

What is a motion? Define a motion.

SECTION 1. Motion defined. A motion is an

application for relief other than by a
pleading. (1a)

Kinds of Motions

1) Motion Ex Parte is made without the presence or a

notification to the other party because the question
generally presented is not debatable, like a Motion for
 Extension of Time to File Pleadings;
2) Motion of Course is where a movant is entitled to the
relief or remedy sought as a matter of discretion on the
part of
the court;
3) Litigated Motion is one made with notice to the adverse
party to give an opportunity to oppose, like a Motion to
Dismiss);
4) Special Motion is a one addressed to the discretion of
the court.
General rule: A motion cannot pray for judgment.
In a motion, the party is asking the court for a favor other than
what is contained in the pleading. Usually, the main relief is
prayed for in the pleading, like “Judgment be rendered in favor
of the plaintiff,” or, “The complaint be dismissed.” That is what
you pray in your complaint or in your answer.
A pleading however is directly related to the cause of action or
the defense. But a motion prays for something else. In a motion,
you are asking for another relief other than the main cause of
action or the main defense. Example is a motion to postpone
trial or a motion for extension of time to file answer. You do not
do that by a complaint but by way of a motion because you are
praying for a relief other than by a pleading.
Pleadings are limited to those enumerated in Rule 6 such as
complaint, answer, cross-claim, counterclaim, etc. But if you
look at a motion, it looks like a pleading. In form, it looks
exactly like a pleading but under the law, it is not a pleading.
However, there are three (3) well known EXCEPTIONS to this.
Meaning you are praying, by way of a motion, for a relief which
normally should be prayed for in a pleading such as a motion is
praying for a judgment already. The exceptions are:
1.) Motion for Judgment to the Demurrer to
Evidence (Rule 33);
2.) Motion for Judgment on the Pleadings (Rule
34); and
3.) Motion for Summary Judgment (Rule 35).
Q: What are the requisites of a valid motion.
A: They are found from Section 2 to Section 6:
Sec. 2. Motions must be in writing. All
motions shall be in writing except those
made in open court or in the course of a
hearing or trial.
(2a)
As a rule, all motions must be in writing, “except those made in
open court or in the course of a hearing or trial” because for
example, during the trial, pagtingin mo sa relo, quarter to twelve
na. So you can move orally for continuance. And the judge will
not require you to have that typed pa. There is no more time to
do that. Anyway, it is officially recorded.
Sec. 3. Contents. A motion shall state the
relief sought to be obtained and the
grounds upon which it is based, and if
required by these Rules or necessary to
prove facts alleged therein, shall be
accompanied by supporting affidavits and
other papers. (3a)
Contents of a Motion:
1) the relief sought to be obtained;
2) the ground upon which it is based; and
3) if required by the Rules or necessary to prove facts
alleged therein, shall be accompanied by supporting
affidavit and other papers.
So a motion shall state the relief sought to be obtained and the
grounds upon which it is based. For example, you move to
postpone the trial next week because you client is still abroad.
So you cite the ground/s upon which it is based.
Q: Is it necessary that a motion be accompanied by
supporting affidavits and other papers?
A: No, unless required by the Rules or necessary to prove facts
alleged therein.
Q: Give an example of a motion where supporting affidavits
are required by the Rules.
A: A motion for new trial on the ground of fraud, accident,
mistake of excusable negligence. Under Rule 37, Section 2, in
order for a motion for new trial on that ground to be valid, there
must Be Affidavit Of Merits. If there is no affidavit of merits, the
motion will be denied.
And if necessary to prove facts alleged therein, then, the motion
must be accompanied by affidavit and other supporting papers.
Example is when you are moving for the postponement of the
trial because your client is sick, the best supporting paper
would be a medical certificate for that matter.
However, if it is not required by the Rules, or the facts are
already stated on record, there is no need of supporting
affidavits or documents. Example is when you move to declare
the adverse party in default. There is no need to support your
motion with affidavits because anyway the court can look at the
records, particularly the sheriff’s return, to check when was the
defendant was served with summons.
Sec. 4. Hearing of motion. Except for
motions which the court may act upon
without prejudicing the rights of the
adverse party, every written motion shall
be set for hearing by the applicant.
Every written motion required to be heard
and the notice of the hearing thereof shall
be served in such a manner as to ensure
its receipt by the other party at least
three (3) days before the date of hearing,
unless the court for good cause sets the
hearing on shorter notice. (4a)
Requisites of a Motion (not made in open court or in the
course of hearing or trial) under Sections 3 and 4:
1. it must be in writing (Sec. 3);
2. Hearing of Motion set by the applicant (Sec. 4);
3. Motion and notice of hearing must be served at least 3
days before the date of hearing. This is called the
Three Day Notice Rule (Sec. 4);
Exceptions to the 3 day notice rule:
 1. ex parte motions;
2. urgent motions;
3. Motions agreed upon by the parties to be heard on
shorter notice or jointly submitted by the parties; and
4. Motions for summary judgment which must be served
at least 10 days before its hearing.
Section 4, says that you must furnish the adverse party a copy
of your motion at least three (3) days before date of hearing. So,
you do not furnish him one day before the date of the hearing.
The reason there is to prevent surprise upon the adverse party
and to enable the latter to study the motion and file his
opposition (Remante vs. Bonto, L-19900, Feb. 28, 1966). So a
motion cannot be filed ex-parte, meaning, without notice of
hearing and without furnishing a copy to the opponent.
However, a motion need not be set for hearing if it is not a
litigated motion. Meaning, these are motions “which the court
may act upon without prejudicing the rights of the adverse
party” such as a motion for extension of time to file answer or a
motion to set case for pre-trial. So with this kind of motion, the
court can immediately grant your motion.
And the law says, you serve the motion in such a manner as to
ensure its receipt by the other party at least three (3) days
before the date of hearing. In other words, you have to calculate
that he will receive it at least 3 days.
One good example of this requirement is one which is
mentioned in Rule 13, Section 11, that personal service is
preferred to service by registered mail because if it is personal
service, it is assured that the adverse party received the motion
3 days before. But if it is service by mail, we will not know,
unless you mail it very much earlier because let us say, hearing
on the motion will be on Friday, and then you will mail the
motion on Monday, or 5 days before, it is possible that the
motion will reach the opponent on Sunday or two days later.
That is the reason why personal service is preferred because if
there is no explanation why you resorted to by mail rather than
personal service, the motion is deemed not filed.
Q: What is the effect if a party files a motion serving upon
the adverse party the motion in less than three days?
A: The court may refuse to take action on a motion which does
not comply with the rule requiring a three-day notice to the
adverse party, “unless the court for good cause sets the hearing
on shorter notice.” Usually these are urgent motions such as
moving for postponement because your witness got sick one day
or hours before the trial.
Sec. 5. Notice of hearing. The notice of
hearing shall be addressed to all parties
concerned, and shall specify the time and
date of the hearing which must not be
later than ten (10) days after the filing of
the motion. (5a)
Notice of Hearing shall be addressed to all parties concerned.
Date of hearing must not be later than 10 days from the filing of
the motion (Section 5);
Q: Now, what happens if a motion does not contain a notice
of hearing?
A: A motion that does not contain a notice of hearing is but a
mere scrap of paper; it presents no question which merits the
attention and consideration of the Court. It is not even a motion
for it does not comply with the rules. A motion without notice of
hearing is nothing but a piece of paper filed in court, which
should be disregarded and ignored. (Prado vs. Veridiano II, (204
SCRA 651 [1991])
Q: To whom should the notice of hearing be addressed?
A: It is addressed to all parties concerned. So, normally ganito
iyan:
Atty. Johnny Bravo
Counsel for plaintiff
Greetings! Please take notice that the undersigned is
submitting the foregoing motion for
the reconsideration of the Honorable Court on
Friday, November 28, 1997 at 8:30 in the morning.
(Signed) Atty. Hong Hunks
Counsel for Defendant
Now, some lawyers, when they prepare a notice of hearing will
state: “TO THE CLERK OF COURT, Please set the foregoing
for the consideration of the court…” Now, the law says, the
notice of hearing should be addressed to the parties and not to
the clerk of court. So, the common practice of addressing the
notice of hearing to the clerk of court is technically wrong.
The SC has already commented on that several times. One of
them was the case of
PRADO vs. VERIDIANO II – 204 SCRA 654 [1991]
HELD: “Sections 5, Rule 15 of the Rules of Court which
explicitly provide that the notice shall be served by the
applicant to all parties concerned and shall state the time
and place for the hearing of the motion. A notice of hearing
addressed to the Clerk of Court and not to the parties is no
notice at all.”
So it is very technical.
Now, take note that the new rule added the phrase that you
“must specify the time and the date of the hearing which
must not be later than ten (10) days after the filing of the
motion.” That is not found in the prior rule.
Before, some lawyers are mischievous. When they received the
complaint, instead of filing an answer, they will file a motion to
dismiss just to delay. And the motion to dismiss is denied. But
at least the period to answer is stretched. And to make it worse,
they will file it in November and they will set it for hearing in
December. One month from now.
Now, you cannot do that. Pag-file mo ng motion, maximum ten
(10) days only. You cannot say, “I will set if for hearing 2
months from now.” It is now very clear that it must not be later
than 10 days after the filing of the motion. And see to it that the
party receives it 3 days before the hearing because of Section 4.
The minimum is 3 days. So that is a new requirement found in
1997 Rules.
The general rule is that the three-day notice requirement in
motions under Sections 4 and 5 of Rule 15 is mandatory. It is an
integral component of procedural due process. But when the
adverse party has actually had the opportunity to be heard, and
has, indeed, been heard through pleadings filed in opposition to
the motion, the purpose behind the rule is deemed duly served.
The requirements of due process are substantially complied
with. (Jehan Shipping
Corporation vs. NFA, GR No. 159750, Dec. 14, 2005)
The Court has consistently held that a motion which does not
meet the requirements of Sections 4 and 5 on hearing and
notice of hearing, is a mere scrap of paper, which the clerk of
court has no right to receive and the trial court has no authority
to act upon. Service of a copy of a motion containing a notice of
the time and the place of hearing of that motion is a mandatory
requirement, and the failure of movants to comply with these
requirements renders their motions fatally defective (Vette
Industrial Sales Co., Inc. vs. Cheng GR 170232-170301,
December 5, 2006).
Sec. 6. Proof of service necessary. No written
motion set for hearing shall be acted upon
by the court without proof of service
thereof.
(6a)
Proof of service of the motion is required – “No written motion set
for hearing shall be acted upon by the court without proof of
service hereof.” This is related to Rule 13. As a general rule, you
cannot file anything in court without furnishing a copy to your
opponent. A motion cannot be filed ex-parte.
The only exceptions here are motions which can be filed ex-
parte because they are not controversial. Normally, there are
motions which can be filed without proof of service, which
generally the court will grant anyway. Another example is Rule
23, Section 21 on indigent or pauper litigants – a party may be
authorized to litigate his action, claim or defense as an indigent
upon ex-parte motion together with the complaint and a
hearing. Therefore, there is no need to furnish copy of the
motion to the other party.
But those are the only exceptions. So, as a rule, every motion
must be served to the opposite party.
Outline of Sections 2 to 6
Q: What are the requisites of a valid motion?
A: The REQUISITES OF A VALID MOTION are the following:
1) It must be in writing except those made in open
court or in the course of hearing or trial;
2) It shall state the relief sought to be obtained
and the ground upon which it is based;
3) It must be accompanied by supporting
affidavits and other papers, if required by these
Rules or necessary to prove facts alleged
therein. However, if the facts are already stated
on
record, the court can check the records;
4) There must be a notice of the hearing attached
to the motion and the adverse party must
receive the motion at least three (3) days before
the date of hearing, unless the court for
good cause sets the hearing on shorter notice;
5) There must be notice of hearing addressed to
all parties concerned, and shall specify the
time and date of the hearing which must not be
later than ten (10) days after the filing of the
motion;
and
6) There must be proof of service of the motion on
the adverse party.
Effect of failure to set the motion for hearing, to include a notice
of hearing and to serve the motion (Secs. 4, 5, 6 of Rule 15)
Note:
• Any motion that does not comply with Sections 4,
5 and 6 is a mere scrap of paper.
• It does not interrupt the reglementary period for
the filing of the requisite pleading.
The well-settled rule is that a motion which fails to comply with
such requirements is a useless piece of paper (Neri vs. de la
Pena 457 SCRA 438). It is pro forma presenting no question
which the court could decide (Boiser vs. Aguirre, Jr. 458 SCRA
430). If filed, such motion is not entitled to judicial cognizance
and does not stop the running of the period for filing the
requisite pleading (Cruz vs. CA 388 SCRA 72). A motion which
does not comply with the rules on motion is considered pro
forma and thus, will be treated as one filed merely to delay the
proceedings (Marikina Development Corporation vs. Flojo 251
SCRA 87).
Sec. 7. Motion day. Except for motions
requiring immediate action, all motions
shall be scheduled for hearing on Friday
afternoons, or if Friday is a non-working
day, in the afternoon of the next working
day. (7a)
Motion hearings are scheduled on Friday afternoons except
those motion which require urgent action. So if today is Friday
and it’s a holiday, sa Monday pa ang hearing. But again, some
judges do not follow this.
Note that there is no motion day in the Supreme Court.
OMNIBUS MOTION RULE
Sec. 8. Omnibus motion. Subject to the
provisions of section 1 of Rule 9, a motion
attacking a pleading, order, judgment, or
proceeding shall include all objections
then available, and all objections not so
included shall be deemed waived. (8a)
The word “omnibus” means “all embracing or all
encompassing.” Q: Define omnibus motion.
A: An OMNIBUS MOTION is one attacking a pleading, order,
judgment, or a proceeding which shall include all objections then
available and objections not so included shall not deemed
waived.
(Section 8; Ins. Co. of North America vs. Delgado Brokerage, L-
22974, Oct. 28, 1966)
EXAMPLE #1: Motion to Dismiss. In effect, it attacks a
proceeding. Where a party is not allowed to file a motion to
based on one ground, if denied, second motion to dismiss based
on the second ground, denied, third motion to dismiss.
Meaning, ini-installment mo. That is not allowed. If you have
two or more grounds, you file only one motion to dismiss
invoking those grounds because the rule is, any ground not so
invoked is deemed waived.
EXAMPLE #2: Rule 37 on New Trial. A second motion for new
trial under Section 5 of Rule 37 prohibits the filing of a second
motion for new trial based on grounds available to the movant
when he filed his first motion. Well, if the grounds came later,
that is different.
So, the principle there is, if you have two or more grounds
you should only file one motion where you invoke all your
grounds.
Now, obviously there is an EXCEPTION because the opening
clause of section 8 is “Subject to the provision of Section 1 of
Rule 9.”
Rule 9, Section 1. Defenses and objections
not pleaded. Defenses and objections not
pleaded either in a motion to dismiss or in
the answer are deemed waived. However,
when it appears from the pleadings or the
evidence on record that the court has no
jurisdiction over the subject matter, that
there is another action pending between
the same parties for the same cause, or
that the action is barred by a prior
judgment or by statute of limitations, the
court shall dismiss the claim. (2a)
Under Rule 9, There are four (4) exceptions. Meaning, they are
not deemed waive even if you do not raise them in a motion to
dismiss, which can be even motu propio proceeded by the court.
Q: What are the grounds not deemed waived even if not
raised in a motion to dismiss or answer. (Exceptions to the
omnibus motion rule)?
A: The following:
1) Lack of jurisdiction over the subject matter;
2) Litis pendentia;
3) Res adjudicata; and 4) Prescription.

Sec. 9. Motion for leave. A motion for leave to file a

pleading or motion shall be
accompanied by the pleading or motion
sought to be admitted. (n)

EXAMPLE: Under the OLD rules, if you want to file an amended complaint, there are
two (2) Options under the old rules. The first
option is to file a motion for leave to file amended complaint. And

when it is granted, that is the time for to you file your amended complaint. The second
option is you file your amended complaint together with the motion to admitted it.

The same thing iyong sa intervention under the OLD rules. In a motion to intervene,
“Motion to intervene. Granted, I will file my pleading in intervention.” The same thing
for certain types of motion like motion for leave to file third-party complaint: “Motion
for leave. Granted, I will file my third-party complaint.” That is under the previous rule.

NOW, hindi na puwede yan. Under the PRESENT RULE, when you
file a motion, the pleading to be admitted must already be included in your motion.
Pag-file mo nng motion, kasama na iyong pleading. The pleading sought to be amended
must already be included in

the motion. One-time filing ba!!

Sec. 10. Form. The Rules applicable to

pleadings shall apply to written motions so

far as concerns caption, designation,

signature, and other matters of form. (9a)

The rule on pleadings also applies to written motion as far as caption, designation, signature
and other matters of court. So in
appearance there is difference between the appearance of a
pleading and the appearance of a motion. But definitely, a motion is not a pleading
although it looks like a pleading.
Rule 16
MOTION TO DISMISS
Even when the allegations in the complaint are now clear
enough to enable the defendant to file his responsive pleading
because the adverse party has already submitted a bill of
particulars, the defendant need not file his answer immediately.
He may first explore the possibility of filing a motion to dismiss
under Rule 16. If there is no ground for a motion to dismiss, he
has to file his answer.
While the filing of a motion to dismiss is not prohibited, the
remedy being an integral part of the Rules of Court, the current
policy of the SC is not to encourage the filing of such motion but
to instead file an answer to the complaint. Thus, effective
August 26, 2004, within one day from receipt of the complaint,
summons shall contain a reminder to the defendant to observe
restraint in filing a motion to dismiss and instead allege the
grounds thereof as defenses in the answer (A.M. No. 03-1-09-
SC, July 13, 2004).
Motion to dismiss is the counterpart of motion to quash (Rule
117) in criminal procedure. In criminal procedure, before the
arraignment or before entering a plea the accused may instead
file what is known as motion to quash. The proceedings are
quashed on the ground that:
(1) the court has no jurisdiction over the subject matter of
the case or over the person of the accused;
(2) the person who filed it has no authority to do so;
(3) the complaint or information charges more than one
offense;
(4) because of double jeopardy; or
(5) the criminal liability has already been extinguished.
A motion to dismiss is not a responsive pleading. It is not a
responsive pleading at all.
Hypothetical admissions of a motion to dismiss
A motion to dismiss hypothetically admits the truth of the
factual allegations of the complaint (Peltan Development
Inc., vs. CA 270 SCRA 82; Cuarto vs. De Luna 22 SCRA 459).
The admission extends only to such matters of fact that have
been sufficiently pleaded and not to mere epithets charging
fraud, allegations of legal conclusions or erroneous statements
of law, inference from facts not stated, matters of evidence or
irrelevant matters (De Dios vs. Bristol Laboratories, 55 SCRA
349) Only deemed hypothetically admitted are material
allegations, not conclusions. An allegation that a contract is an
“equitable mortgage” is a conclusion and not a material
allegation. Hence, it is not deemed admitted by the motion to
dismiss (Dalandan vs. Julio 10 SCRA 4000).
A motion to dismiss generally partakes the nature of a demurrer.
It hypothetically admits the allegations stated in the complaint.
However the admission extends only to material and relevant
allegations.
If for instance the plaintiff files an action for damages against
the defendant who files a motion to dismiss, the defendant in
effect says that even assuming the facts to be true as alleged by
the plaintiff, the latter has failed to show that he has a right to
relief because his action has prescribed or because the court
where the action was filed has no jurisdiction over the subject
matter of the complaint.
Omnibus motion
When a motion to dismiss is filed, all grounds available at the
time the motion is filed must be invoked in the motion. This is
required under the “omnibus motion rule.” Grounds not so
invoked are deemed waived. The grounds not waived however,
are lack of jurisdiction over the subject matter, litis pendencia,
res judicata and prescription (Sec. 8 Rule 15; Sec. 1 Rule 9)
The above rule applies only when a motion to dismiss is filed.
Where no motion to dismiss is filed, the grounds for a motion to
dismiss may be availed of as affirmative defenses in the answer
(Sec. 6 Rule 16). No defense is waived because no motion to
dismiss was filed. There is indeed an unmistakable difference in
the legal effects between filing and not filing a motion to dismiss
in relation to waiver of defenses.
If no motion to dismiss has been filed, any of the grounds for
dismissal provided in the Rules may be pleaded as an
affirmative defense in the answer, and in the discretion of the
court, a preliminary hearing may be had thereon as if a motion
to dismiss had been filed. Based on the foregoing, a preliminary
hearing undeniably is subject to the discretion of the trial court.
The trial court’s order granting or dispensing with the need for a
preliminary hearing may not be corrected by certiorari absent
any showing that the trial court had acted without jurisdiction
or in excess thereof or with such grave abuse of discretion as
would amount to lack of jurisdiction (Misamis Occidental II
Cooperative, Inc. vs. David 468 SCRA 63).
Section 1. Grounds. Within the time for but
before filing the answer to the complaint
or pleading asserting a claim, a motion to
dismiss may be made on any of the
following grounds:
xxxxx
General rule: A court may not motu proprio dismiss a case
unless a motion to that effect is filed by a party thereto.
Exceptions:
1) Those cases where the court may dismiss a case motu
proprio (Sec. 1, R 9);
2) Sec. 3 R 17 (Failure to prosecute); and
3) Rule on Summary Procedure (Sec. 4, 1991 Revised
Rules on Summary Procedure.
Types of Dismissal of Action:
1) Upon Motion to Dismiss before Answer under Rule 16;
2) Upon Motion to Dismiss under Rule 17;
a. upon notice by plaintiff;
b. upon motion by plaintiff; or
c. due to fault of plaintiff.
3) Motion to dismiss called a demurrer to evidence after
plaintiff has completed the presentation of his evidence
under Rule 33; and
4) Dismissal of an appeal.
Q: When do you file a motion to dismiss?
A: Within the time for but before filing the answer. So, within 15
days instead of filing an answer the law allows the defendant to
file instead a motion to dismiss. The principle is within 15 days
from receipt of the summons and the complaint, the defendant
should file an answer or in lieu of an answer he may instead file
a motion to dismiss based on the grounds enumerated in
section 1.
A motion to dismiss that is filed after the answer has been
filed, is considered filed out of time and the defending
party is stopped from filing the motion to dismiss (Philville
vs. Javier 477 SCRA 533). This is only a general rule.
Note however, that a motion to dismiss may be filed even after
the filing of the answer and will not be considered filed out of
time if the ground raised in the motion is either of the following:
(a) Lack of jurisdiction over the
subject matter;
(b) Litis pendencia; (c) Res
judicata; or (d) Prescription
(Sec. 1 Rule 9).
Under said rule, when any of the above grounds appears from
the pleadings or from the evidence on record, the court shall
dismiss the claim. The authority given to the court is, from the
tenor of the rule, not only mandatory but also subject to a motu
proprio dismissal. Since the ground for dismissal may appear
from the evidence, it is obvious that the dismissal may be made
during the trial and this means, even after the answer has been
filed.
Now, a motion to dismiss is available not only for the
purpose of dismissing the complaint but also for
dismissing a counterclaim, a cross-claim, a third party
complaint because the laws says “before filing the answer
to the complaint or pleading asserting a claim.” A claim
can be ascertained not only in a compliant but also in
other pleading such as counterclaims, etc.
First Ground: [a] THAT THE COURT HAS NO JURISDICTION
OVER THE PERSON OF THE DEFENDING PARTY
Q: When will that happen?
A: When there is absence of summons or improper service of
summons.
Now based on decided cases, it would seem that this is one of
the weakest grounds for a motion to dismiss – “the court has
not acquired jurisdiction over the person” – for there are many
exceptions. There are many waivers. Because of the rule of
waiver the court may acquire jurisdiction over your person in
some other capacity.
EXAMPLE: You are improperly served with summons but you
file a motion for bill of particulars or you file a motion for
extension of time to file for an answer then the court acquires
jurisdiction over your person and you cannot any more file a
motion to dismiss. The principle is that the moment you file a
motion for bill of particulars or you file a motion for extension of
time, in effect you have already submitted to the jurisdiction of
the court. If there was any defect in the service of summons, it
was already cured.
EXAMPLE: Now, suppose the summons was served on a nine-
year old boy who is presumed to be responsible. When his
father arrived, the boy told his father that somebody came in
and left this. So in other words the father actually got the
summons. Now, suppose the father will file a motion to dismiss
on the ground that the court never acquired jurisdiction over
the person because the summons was improperly serve. Do you
think it will prosper?
There are cases in the SC which says even if the summons was
not properly served, if actually it came to the attention of the
defendant, the defect is cured. Because if you say I will not
answer for the summons is improper that is more of a
technicality. You are being technical. Actually you have received
the summons. In other words, there are cases along that line.
That is why this ground may no longer be available to you
because of those instances.
LINGER AND FISHER vs. IAC – 125 SCRA 522
FACTS: The sheriff served the summons improperly on the
defendant. And the defendant filed a motion to dismiss on
the ground that the court has no jurisdiction over his
person.
HELD: Defendant assumed that the sheriff made a mistake.
Why should we dismiss the complaint? It is not the fault of
the plaintiff. If the sheriff does not know how to do it, the
fault lies on the sheriff and the sheriff is an employee of the
court, not an agent of the plaintiff. Why should the court
blame the plaintiff? If that is what happens we will not
dismiss the case. We will instead issue an alias summons
and direct the sheriff to solve it properly.
With all these decided cases, it would seem that the objection of
no jurisdiction over the person of the defending party is getting
weaker and weaker because of so many exceptions such as:
(1) waiver;
(2) voluntary appearance;
(3) improper service but the defendant came to know
about it so you cannot rely on the technicality and
(4) then you have the case of Linger.
FAR CORPORATION vs. FRANCISCO – 146 SCRA 197
HELD: This case reiterated the ruling in LINGER where the
SC said again, if the sheriff did not know how to serve the
summons, why should the plaintiff’s complaint be
dismissed when it is not his fault. The correct procedure is
for the court to issue another summons and direct that the
sheriff should serve it properly.
On the other hand, there was a conflict before in jurisprudence
on this question:
Q: Suppose I will file a motion to dismiss. Assuming that
there is a ground of lack of jurisdiction over my person and
venue is improper. Meaning, I will cite 2, 3 or 4 grounds. Is
that possible?
LA NAVAL DRUG CORPORATION vs. CA – 236 SCRA 78
HELD: When you file a motion to dismiss citing lack of
Jurisdiction over your person together with other grounds,
there is no waiver on the defect or lack of jurisdiction. So,
you can file a motion to dismiss on that ground together
with other grounds. There is no more waiver. The inclusion
in a motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall not be
deemed a voluntary appearance.
Obviously the ruling in NAVAL is incorporated in the Rules of
Court. Let’s go back to Rule 14 Section 20:
Sec. 20. Voluntary appearance. - The
defendant's voluntary appearance in the
action shall be equivalent to service of
summons. The inclusion in a motion to
dismiss of other grounds aside from lack
of jurisdiction over the person of the
defendant shall not be deemed a voluntary
appearance.
(23a)
Second Ground: [b] THAT THE COURT HAS NO
JURISDICTION OVER THE SUBJECT MATTER OF THE
CLAIM.
That is one of the most important grounds for a motion to
dismiss.
EXAMPLE: An action for unlawful detainer is field in the RTC
and your ground is, the court has no jurisdiction over the
subject matter. Or, an action for annulment of marriage is filed
in the MTC. Now, I will file a motion to dismiss because the
court has no jurisdiction over the subject matter.
So, we are familiar already with this. Now, let’ go to important
principles on this ground.
FIRST PRINCIPLE: Jurisdiction over the subject matter is
determined by the allegations in the complaint .
Q: How do we determine whether a court has a jurisdiction
or not over a particular case?
A: By reading the complaint, we will know whether the subject
matter is within the jurisdiction of the court or not. So the
principle to remember is, jurisdiction over the subject matter of
the case is determined by the allegations in the complaint not
by the allegation of the defendant in his motion to dismiss or
answer.
EXAMPLE: A filed a complaint against B before the RTC of
Davao City to recover an unpaid loan of P350,000. By going over
the complaint, does the RTC have jurisdiction? YES. But here
comes the defendant filing a motion to dismiss under Rule 16
alleging that “it is not P350,000 but only P250,000. Therefore,
the court has no jurisdiction over the subject matter.” So the
court is confronted with this situation.
Q: What will the court do? Should the court deny the
motion to dismiss?
A: YES because jurisdiction over the subject matter is determined
by the allegations in the complaint. They are not determined by
the allegations of the defendant in his motion to dismiss.
SECOND PRINCIPLE: When a defendant files a motion to
dismiss on the ground that the court has no jurisdiction over
the subject matter, the defendant hypothetically admits all
the allegations in the complaint to be true. The defendant in
the meantime, is not allowed to present evidence that the court
has no jurisdiction. Everything must be decided on the face of
the complaint only.
But suppose it is really P250,000 only and in the course of the
trial, even plaintiff’s own evidence shows that the loan is only
P250,000. If that is so, if that becomes apparent in the middle
of the trial, Vannie Kolotski will now move to dismiss on the
ground that the lack of jurisdiction has now become apparent.
Anyway, you have not waived that defect. You can raise that
anytime. But at the start of the case, whatever the complaint
says, that is assumed to be true for the moment, if the ground
is lack of jurisdiction. So, what is the principle there?
Jurisdiction over the subject matter is determined purely
by the allegations in the complaint.
THIRD PRINCIPLE: Jurisdiction over the subject matter,
once acquired by the court upon the filing of the complaint,
the court retains the jurisdiction over that case until that
case is terminated. Any subsequent development or any
subsequent amendment of the law will no longer deprive the
court of its jurisdiction.
A perfect EXAMPLE is what happened with the effectivity of the
law expanding the jurisdiction of the MTC under RA 7691. The
jurisdiction of the MTC under the old law is P20,000 lang eh.
So, if your claim is above P20,000, RTC na. And there were
several cases pending in court already being tried – P 30,000, P
40,000 in the RTC. Then in April 1994, the jurisdiction of the
MTC was increased to P100,000. What happens now to all those
cases which were only P21,000 or P20,000? Shall the RTC
dismiss all of them or the RTC will finish it? Jurisdiction over
the subject matter once acquired continues until the case is
finished or terminated. That is the principle to remember.
The ONLY POSSIBLE EXCEPTION there is what the Supreme
Court says, if the new statute is intended to be curative in
character – to cure the defect under the old law – then the rule
on adherence of jurisdiction does not apply.
That was best exemplified by a situation years ago when there
was a controversy as to whether a claim for moral and
exemplary damages filed by an employee against the employer
for oppressive act of terminating him can be granted by the
Labor Arbiter.
Definitely, reinstatement and backwages can be granted by the
Labor Arbiter. The jurisprudence at that time when it was still
unsettled was, the claim for moral damages should be settled in
the RTC, not by the Labor Arbiter. However, where these cases
were still pending in the RTC, mga damages, in the meantime
the law naman was changed. The Labor Arbiter now was given
jurisdiction to award damages.
So, what happen to the cases for damages now pending in the
RTC? Should they be transferred to the Labor Arbiter? It we
follow the rule that jurisdiction once acquired continuous, the
answer is, the RTC should continue trying the case for damages
and the Labor Arbiter continue to try the backwages and
reinstatement. But that is practically splitting the case into two
parts.
So obviously, the intention of the law granting the Labor Arbiter
the jurisdiction is to cure the error. So, what happened? All
those cases filed in the RTC were ordered transferred to the
Labor Arbiter as an exception to the rule on adherence to
jurisdiction.
FOURTH PRINCIPLE: Lack of jurisdiction over the subject
matter may be raised:
1) In the answer;
2) In the course of the trial;
3) After the trial; 4) After the judgment; or
even 5) For the first time on appeal.
All right, let’s go to the basics:
Q: Can the issue of lack of jurisdiction over the subject
matter be raised in the middle of the trial?
A: YES, there is no waiver.
Q: Suppose there is already a decision by the trial court,
can you still raise the issue of lack of jurisdiction? Why?
A: YES. The decision is deemed void because all along the court
has no authority to try. So the trial is void. The judgment is
void. As a matter of fact it can be raised at any stage of the
proceeding even for the first time on appeal. That is the rule.
Now, that rule has somehow weakened or diluted by the ruling
in
TIJAM vs. SIBONGHANOY – 23 SCRA 29 [1968]
FACTS: The case of TIJAM was something really queer and
unique. From the start, the City Court of Cebu has no
jurisdiction. The defendant never filed a motion to dismiss.
And what is so surprising is that the court never noticed it..
So the parties will go on trial. After trial, the court rendered
judgment in favor of the plaintiff. The defendant was not
satisfied. He appealed to the former CFI (now RTC) and on
appeal that issue on lack of jurisdiction was never raised.
Talo na naman iyong defendant.
So all this process took about 10 years. Talo. So much
water has already passed under the bridge. Nagpalit ng
abogado iyong defendant and he traced the proceeding.
Actually all along, the inferior court has no jurisdiction and
everything is void from the very beginning. But take note, it
took the defendant through his lawyer 10 years or more to
raise the issue. Now, of course, if we will follow the rule, it
can be raised at any stage at any time even for the first time
on appeal on this ground that everything is void.
HELD: NO, you cannot raise it anymore. Under the
equitable doctrine of estoppel by laches, you are already
under estoppel to raise that ground because the if you will
follow the general rule and we will declare null and void
everything from the City Court to the CA, everything – a
judicial work which lasted for 10 years – will all be thrown
in the waste basket. That is practically compelling the
plaintiff to undergo a second calvary. Ulit na naman siya
just to prove his case.
But the ruling in SIBONGHANOY is not intended to be the rule.
It is not intended to overrule the rule that lack of jurisdiction
over the subject matter can be raised at any stage of the
proceeding. The ruling in the SIBONGHANOY is only to be
applied in exceptional situations
Even the SC noted that courts were applying the
SIBONGHANOY ruling indiscriminately that it will take you one
or two months to raise lack of jurisdiction – wala pa nag-unpisa
ang trial then one or two months after the case was filed, ah
estoppel na! Practically, that is saying that lack of jurisdiction
cannot be raised anymore. But the SC said NO, that is wrong.
In the case of
SEAFDEC – AGRICULTURE DEPARTMENT vs. NRLC – 206
SCRA 283
[1992]
HELD: “A rule, that had been settled by unquestioned
acceptance and upheld in decisions so numerous to cite is
that the jurisdiction of a court over the subject matter of
the action is a matter of law and may not be conferred by
consent or agreement of the parties. The lack of jurisdiction
of a court may be raised at any stage of the proceedings,
even on
appeal.”
“This doctrine has been qualified by recent pronouncements
which stemmed principally from the ruling in the cited case
of SIBONGHANOY. It is to be regretted, however, that the
holding in said case had been applied to situations which
were obviously not contemplated therein. The exceptional
circumstances involved in SIBONGHANOY which justified
the departure from the accepted concept of non-waivability
of objection to jurisdiction has been ignored and, instead a
blanket doctrine had been repeatedly upheld that rendered
the supposed ruling in SIBONGHANOY not as the
exception, but rather the general rule, virtually
overthrowing altogether the time-honored principle that the
issue of jurisdiction is not lost by waiver or by estoppel.”
(Calimlim vs. Ramirez, G.R. No. L-34362, 118 SCRA 399
[1982]).
So, this has already been clarified. The latest case was the 1995
case of
DE LEON vs. CA – 245 SCRA 166
HELD: “In the past, the principle of estoppel has been used
by the courts to avoid a clear case of injustice. Its use as a
defense to a jurisdictional error is more of an exception
rather than the rule. The circumstances outlining estoppel
must be unequivocal and intentional, for it is an exception to
standard legal norms and is generally applied only in highly
exceptional and justifiable cases.”
In other words, do not abuse the SIBONGHANOY ruling. That is
very exceptional case.
Third Ground: [c] THAT VENUE IS IMPROPERLY LAID
Here, there is no compliance with Rule 4 – the action is filed in
the place other than the proper venue under Rule 4.
Q: Suppose you file a motion to dismiss on the ground of
improper venue, but your motion to dismiss is denied. What
is your remedy?
A: Your remedy is to resort to the special civil action of
prohibition under Rule 65. And you should resort to it
immediately because if you will file your answer and go to trial,
in effect, you will be waiving the objection. The objection must
be pursued diligently. That was the pronouncement in the case
of Pangasinan
Transportation Co. v. Yatco (21 SCRA 658).
Fourth Ground: [d] THAT THE PLAINTIFF HAS NO LEGAL
CAPACITY TO SUE;
Q: Give an example when the plaintiff has no legal capacity
to sue.
A: A minor will file a case without being assisted by his
parents or guardian. Or, a person will file a case in behalf of a
minor claiming that he is a guardian when in fact he is not. He
is not the parent of the child. He is not also appointed by the
court.
According to the SC, when you say that the plaintiff lacks legal
capacity to sue, there are two (2) possible meanings. It means
any of the following:
1) when the plaintiff does not possess the necessary
qualifications to appear at the trial such as when the
plaintiff is not in the full exercise of his civil rights like
when he is a minor, or insane; and
2) when the plaintiff does not have the character or
representation which he claims like he claims to be a
guardian when in reality he is not. (Lunsod vs. Ortega,
46
Phil. 664)
EXAMPLE: I will sue you as the guardian of a minor –
guardian ad litem. But actually, you will challenge my
being a guardian. There is no court order according to
you. So, I might be of age but I have no legal capacity
to sue because I do not have the representation which
I claim I have.
Q: (Bar question) Distinguish lack of legal capacity to sue
from lack of legal personality to sue.
A: The lack of legal capacity to sue refers to disability of the
plaintiff while the lack of legal personality to sue is to the fact
that the plaintiff is not a real party in interest, in which case, the
ground for dismissal would be that the complaint states no
cause of action (Gonzales vs. Alegarbes, 99 Phil 213; Casimiro
vs. Roque, 98 Phil.
880)
ILLUSTRATION:
In lack of legal capacity to sue, you are referring to a
disability of the plaintiff, like he is a minor; or he is insane or
incapacitated.
In lack of legal personality to sue – going back to Rule 3,
when you are appointed as agent or attorney-in-fact of
somebody to manage his property and to file suit in his behalf –
while you have the authority to file cases, it does not mean to
say that you should sue in your own name because the real
party in interest is the principal, not the agent.
So if the agent files an action in his own name, rather than that
of the principal, what you are going to say is, you are not the
real party in interest. You are not challenging his age or
disability but you are challenging his being placed as plaintiff
when actually he is only the attorney-in-fact or agent. In effect,
when you raise this ground, actually that would fall more under
paragraph [g] – that the pleading asserting the claim states no
cause of action because there is no cause of action in favor of
the agent. The cause of action is in the principal.
Fifth Ground: [e] THAT THERE IS ANOTHER ACTION
PENDING BETWEEN THE SAME PARTIES FOR THE SAME
CAUSE;
Now, this is one of the most important grounds for a motion to
dismiss. This is popularly known as the ground of lis pendens.
Now, do not confuse this with the notice of lis pendens that we
discussed in Rule 13. That is the notice that you annotate on
the title of the property when you are filing a case for its
recovery although the meaning is the same because lis pendens
is Latin for pending litigation.
So the essence is that there is a case filed against you and then
while it is pending, another case is filed against you based on
the same cause of action. So what will you do? I have to move to
dismiss one case. I will allege that there is already another
action pending between the same parties for the same cause. So
in effect, what you are saying is the plaintiff is guilty of splitting
his cause of action and this ground has also been mentioned in
Rule 2, Section
4:
Rule 2, Sec. 4. Splitting a single cause of
action; effect of - If two or more suits are
instituted on the basis of the same cause
of action, the filing of one or a judgment
upon the merits in any one is available as
a ground for the dismissal of the others.
(4a)
So the filing of one case is available as a ground for the
dismissal of the other. Now, such ground is stated under Rule
16 – that there is another action pending between the
same parties for the same cause. The other legal term for it
aside from the ground of lis pendens is the ground of litis
pendentia. It means the same thing. That’s why when you read
some SC cases, the SC cites either one of the two terms. There
is another foreign term although it is less used, the ground of
action pendant.
 LITIS PENDENTIA viz a viz FORUM-SHOPPING
Now, you come analyze that when the other party files two cases
against you, at the same time – what is the correct ground for
dismissal? Litis pendentia or forum-shopping? Is there a
relationship between forum- shopping and litis pendentia?
When I file two identical cases in two courts, am I not also
forumshopping?
One of the most intelligent discussion on this topic was the case
of FIRST PHILIPPINE INTERNATIONAL BANK vs. CA (252 SCRA
259), January 24, 1996, penned for the Third Division by
Justice Artemio Panganiban.
Do you know what he said? Itong forum- shopping, how it
started? Actually, it is a concept in Private International Law
where you shop for a forum – where you look for a country
where you will file a case and then the court of that country will
now reject it on the ground for forum non conveniens. That is
where it originates. You are shopping for a forum.
FIRST PHILIPPINE INTERNATIONAL BANK vs. CA – 252
SCRA 259,
January 24, 1996
HELD: “Forum-shopping originated as a concept in private
international law, where non-resident litigants are given the
option to choose the forum or place wherein to bring their
suit for various reasons or excuses, including to secure
procedural advantages, to annoy and harass the defendant,
to avoid overcrowded dockets, or to select a more friendly
venue. To combat these less than honorable excuses, the
principle of forum non conveniens was developed whereby a
court, in conflicts of law cases, may refuse impositions on
its jurisdiction where it is not the most ‘convenient’ or
available forum and the parties are not precluded from
seeking remedies elsewhere.”
“In the Philippines, forum shopping has acquired a
connotation encompassing not only a choice of venues, as it
was originally understood in conflicts of laws, but also to a
choice of remedies.”
“As to the first (CHOICE OF VENUES), the Rules of Court,
for example, allow a plaintiff to commence personal actions
"where the defendant or any of the defendants resides or
may be found, or where the plaintiff or any of the plaintiffs
resides, at the election of the plaintiff" (Rule 4, Sec. 2 [b]).”
That is forum- shopping. lba ang rule ng venue. Where will you
file personal action? – where the plaintiff or any of the principal
plaintiff resides, or, where the defendant or any of the
defendants resides. So, mamili ka! If I am the lawyer kung saan
pabor, doon ako mag-file, and that is forum- shopping. But that
is legitimate forum- shopping because that is allowed by law.
“As to remedies, aggrieved parties, for example, are given a
choice of pursuing civil liabilities independently of the criminal,
arising from the same set of facts. A passenger of a public utility
vehicle involved in a vehicular accident may sue on culpa
contractual, culpa aquiliana or culpa criminal — each remedy
being available independently of the others — although he
cannot recover more than once.” (First Philippine International
Bank vs. CA, supra.)
That is in effect forum- shopping. If I am the offended party,
shall I prosecute the civil aspect in the criminal action or shall I
file an independent civil action or reserve the right? Nasa iyo
man iyan ba! In effect, you shop for a forum. That is also
forum- shopping. But that is legitimate forum- shopping.
“In either of these situations (choice of venue or choice of
remedy), the litigant actually shops for a forum of his action.
This was the original concept of the term forum shopping”
which is perfectly a valid act.
“Eventually, however, instead of actually making a choice of the
forum of their actions, litigants, through the encouragement of
their lawyers, file their actions in all available courts, or invoke
all relevant remedies simultaneously. This practice had not only
resulted in conflicting, adjudications among different courts and
consequent confusion inimical to an orderly administration of
justice. It had created extreme inconvenience to some of the
parties to the action.”
“Thus, ‘forum shopping’ had acquired a different concept –
which is unethical professional legal practice. And this
necessitated or had given rise to the formulation of rules and
canons discouraging or altogether prohibiting the practice.”
“What therefore originally started both in conflicts of laws and in
our domestic law as a legitimate device for solving problems has
been abused and misused to assure scheming litigants of
dubious
reliefs.”
“Consequently, where a litigant or one representing the same
interest or person sues the same party against whom another
action or actions for the alleged violation of the same right and
the enforcement of the same relief is/are still pending, the
defense of litis pendentia in one case is a bar to the others; and,
a final judgment in one would constitute res judicata and thus
would cause the dismissal of the rest. In either case, forum
shopping could be cited by the other party as a ground to ask
for summary dismissal of the two or more complaints or
petitions, and for the imposition of the other sanctions, which
are direct contempt of court, criminal prosecution, and
disciplinary action against the erring lawyer.” (First Philippine
International Bank vs. CA, supra.)
So, what is the difference between forum shopping and litis
pendentia? Actually, there is no difference. Mas maganda pa
nga i-dalawa mo – litis pendentia and forum shopping. Ano ang
effect? Sabihin mo, litis pendentia – one will be dismissed, the
other will remain alive. In forum shopping naman, parehong
patay iyan. The court will dismiss both. I-disciplinary action pa
ang abogado. There is no contempt of court in litis pendentia.
That is now the relationship of forum shopping and litis
pendentia.
Another case, also penned by Justice Panganiban in the same
year, 1996, where he also made a statement that forum
shopping and litis pendentia are almost identical is the case of
EMPLOYEES COMPENSATION COMMISSION vs. CA – 257
SCRA
717, June 28, 1996.
HELD: Forum-shopping exists where the elements of litis
pendencia are present. The test therefore in determining the
presence of forum-shopping is whether in the two (or more case)
pending, there is identity of
a) parties,
 b) rights or causes of action and
c) reliefs sought.
Forum-shopping does not require a literal identity of parties.
It is sufficient that there is identity of interests represented.
When there is already adjudication on the merits in one case to
be more accurate, RES ADJUDICATA should be alleged, and
not forum shopping as a defense because the decision in the
previous case had already become final and executory. So, when
there is already a judgment in the previous case to be exact that
should be res judicata. But when there is no decision yet, that is
litis pendentia and forum shopping.
ELEMENTS OF LITIS PENDENTIA
Now, this is one of the grounds of a motion to dismiss which is
the subject matter already of so many cases and so many
questions in the bar. One of the fundamental questions which is
asked here is: What are the requisites for litis pendencia as a
ground for a motion to dismiss. Actually, there is no wrong if I
will file as many cases as I want against you provided the
causes of action are different. Sometimes, it is difficult to
determine where there is litis pendentia or none. It is possible
for 2 cases to arise between the same parties or the 2 cases are
interrelated. But actually they arose from different causes of
action. So you will get confused.
Sometimes when you read cases decided by the SC on litis
pendentia, you will have a hard time determining whether the 2
cases are only related or they are really identical. If they are
only related, there is no basis for dismissal.
Q: What are the requisites of litis pendentia as a ground for
a motion to dismiss?
A: There are four (4) requisites:
1) Identity of parties between the two actions, or at least
such as represent the same interest in both actions;
In the 2 actions, the parties are the same – the same
plaintiff, same defendant. Literally, they may not be
the same but the persons who are filing the second
case are persons who are actually doing it on your
behalf. So they also represent the same interest.
2) Substantial Identity of rights asserted or cause of
action and relief prayed for; The rights asserted are the
same.
The relief prayed for in both actions are the same.
3) The relief must be founded on the same facts; So same
basis; same evidence.
4) The identity in these particulars should be such that
any judgment which may be rendered on the other
action will, regardless of which party is successful,
amount to res adjudicata in the action under
consideration. (Olayvar vs. Olayvar, 98 Phil. 52; Sapul
vs. Siva, 57 O.G.
1040, Feb. 6, 1961; Pampanga Bus Co. vs. Ocefemia,
L-
21793, Oct. 20, 1966) In other words, the principle of
res adjudicata will apply.
It is applicable between the same parties only when the
judgment to be rendered in the action first instituted will be
such that regardless of which party is successful, it will amount
to res judicata against the second action. (HSBC vs. Aldecoa &
Co., GR No. L 8437 March 23, 1915)
CASE: The husband filed an action for legal separation on
the ground of adultery of his wife. In the same action, the
wife demanded, in a counterclaim, maintenance and
support for her and her children. Subsequently, the wife
filed an independent action for support against her
husband. Will the second action prosper?
A: NO, the issue of support having been raised in the first action
as a counterclaim, it cannot be made an issue in a subsequent
independent action. Hence, the independent action for support
should be dismissed on the ground of lis pendens, all the other
requisites being present. (Olayvar vs. Olayvar, supra)
Litis Pendentia; Fourth Element: THE IDENTITY IN THESE
PARTICULARS SHOULD BE SUCH THAT ANY JUDGMENT
WHICH MAY BE RENDERED ON THE OTHER ACTION WILL,
REGARDLESS OF WHICH PARITY IS SUCCESSFUL, AMOUNT
TO RES ADJUDICATA IN THE ACTION UNDER
CONSIDERATION.
Now, out of these requisites the last one is the most important –
the identity of parties, rights, relief and facts should be such
that any judgment which the court will render in the other
action will automatically be res adjudicata in the present action.
Any judgment which the court will render in the first case
regardless of who wins will amount to res adjudicata in the
second action. That is a very important requisite. Let us see how
that was applied by the SC.
TAMBUNTING vs. ONG – L-2284, August 11, 1950
FACTS: It involves a case between a mortgagor and a
mortgagee. Mortgagor filed a case against the mortgagee. The
nature of the action is annulment of mortgage contract –
annulment of real estate mortgage. While their action was
pending, the mortgagee filed another action against the
mortgagor and the action is foreclosure of the same mortgage.
Now, the mortgagor, the plaintiff in the first case, filed a motion
to dismiss the second case on the ground of litis pendentia on
his argument that suppose I win in this case of annulment of
mortgage and the mortgage contract is annulled, what are you
foreclosing? There is nothing to foreclose. So the second action
for foreclosure will have as basis if the mortgage contract is
annulled in the first case. So there being litis pendencia, the
second case should be dismissed.
HELD: It is true that the second case will have no more leg to
stand on if the mortgagor will win the first case, that is if you
win. Eh paano kung talo ka? Suppose the first case of
annulment of mortgage contract is dismissed? So the mortgage
contract is valid, with more reason the mortgagee has the right
to foreclose.
Therefore, the fourth requisite is missing because the fourth
requisite is regardless of who wins in the first case, it will bar
the second case. But here, the second case would be barred if
the mortgagor wins but if the mortgagee wins, the second case
will not be barred. So the fourth element is not present. There is
no litis pendencia in this case.
FRANCISCO vs. VDA. DE BLAS – 93 Phil. 1
FACTS: Jayhan filed a case against Jessa for recovery of a piece
of land – accion publiciana. According to Jayhan, she is the
owner of the land occupied by Jessa, so Jessa should surrender
the land to him. Of course, Jessa will deny that.
While the action was pending, Jessa naman filed another case
against Jayhan for quieting of title (that your title be in effect
confirmed as valid so that you will not be molested anymore by
the plaintiff). So in effect, Jessa is asking the court to declare
him as the real owner and is therefore entitled to possess the
property.
ISSUE: Is there litis pendencia? Can both cases prosper?
HELD: Alright, let’s analyze. Suppose Jayhan wins the case for
recovery, the court in effect is saying that Jayhan is the real
owner, that practically render moot and academic because
practically if Jayhan wins the first case, the action of Jessa for
quieting of title will fail because the owner pala is Jayhan. In
other words, if Jayhan wins the first case, it will bar the second.
Now, suppose Jessa will win in the first case, the court in effect
is saying that Jayhan is not entitled to possess, she is not the
owner, Jessa is the owner. In effect, the title of Jessa is
automatically granted, rendering unnecessary the second case.
So, that is a perfect example of litis pendentia – “whoever wins
in the first case will bar the second. This is an illustration of the
fourth requisite.”
So in this case, there is litis pendentia.
Which case should be dismissed?
A motion to dismiss may be filed in either suit, not necessarily in
the one instituted first.
TEODORO vs. MIRASOL – 99 Phil. 150
FACTS: There was a lease contract between the lessor and the
lessee and they were already quarreling. According to the lessor,
“Mr. Lessee, I would like to remind you that our contract is only
good up to April. So 3 months from now, expired na. You better
look for a place to transfer because I’m not going to renew the
lease contract.”
But the lessee insisted that contract will be valid until next year
yet. The lessor asserted that the contract is only good up to
April. They already have a quarrel as to whether that contract is
only good up to April or until next year.
Now, what happens, the lessor pre-empted the filing by the
lessee of an ejectment case by filing immediately an action for
declaratory relief under Rule 63 on the issue on whether the
contract will expire by April or next year pa. The case dragged
on and April came and of course the contention of the lessor is
that the contract has expired. So he filed an unlawful detainer
on the ground that the lease contract has expired.
ISSUE: Is there litis pendentia? If there is, which case should be
dismissed?
HELD: The dismissal of the first action would be proper. Why?
What is the ground for dismissal? – that there is another action
pending between the same parties for the same cause. The law
does not say that there is another prior action pending. So, in
litis pendentia, either one can be dismissed. It does not
necessarily follow that the first one will be dismissed or the
second one. Either one will be dismissed.
Now, the most exhaustive discussion on this issue on which
case should be dismissed when there is litis pendentia was the
1993 case of:
VICTRONICS COMPUTERS INC. vs. RTC BRANCH 63 OF
MAKATI – 217 SCRA 517
HELD: As a general rule, it should be the second case that
should be dismissed by applying the principle of priority in time
and the Latin maxim of qui prior est tempore ochor estiore (he
who is before in time is the better law). Priority in time gives
preference in law. And that is common sense. Just like in Labor
Law – last in, first out – kung huli kang dumating, you are the
last to be employed. Kung termination, unahin ka rin, last ka
eh. So that’s the general rule.
But the general rule is not true all the time just like what
happened in the case of TEODORO VS. MIRASOL where the first
case was ordered dismissed. Also in the case of RAMOS VS.
PERALTA (98
Phil)
Q: What was the principle used in the case of TEODORO and
RAMOS in sustaining the dismissal of the first case instead
of the second?
A: The criterion which was applied by the SC was: What is the
more appropriate action to remain. In the case of TEODORO,
since we are talking about ejectment here, the unlawful detainer
case is the more appropriate action to remain rather than the
first
(declaratory relief). It is not a question of which case was filed
first but which action should stay for the good of the parties.
The same thing happened in the case of
ROA MAGSAYSAY vs. MAGSAYSAY – 98 SCRA 592
HELD: In this case there was also a conflict on which case
should be dismissed and which case should remain. The trial
court ordered the dismissal of the first case by applying another
criterion – the criterion of interest of justice. In applying this
standard, the court should ask which case is in a better
position to serve the interest of justice or which case
should remain to serve the interest of justice taking into
account the nature of the controversy, the comparative
accessibility of the court to the parties and other similar
factors.
So, the general rule is: dismiss the second case, let the first case
remain based on the rule on priority in time. But sometimes,
the SC ruled that it is better that the first case is dismissed by
using the standard of (1) more appropriate action or (2) interest
of justice.
And the SC said, it will boil down to this – was the first action
filed in good faith or bad faith? In the case of TEODORO, it was
obvious that the first action was filed by the lessee in bad faith
because the lessee knew that by April, the lessor will file the
action to eject. Of course, meron man siyang depensa. His
defense will be the contract will expire next year pa but siguro
he believes in the principle of priority in time, the best defense
is an offense. So, inunahan ko siya. So, may defense in the
unlawful detainer case was converted into a cause of action.
Instead of using his argument as a defense in his answer to the
unlawful detainer, he converted it into a cause of action. So, We
will dismiss you. That was what happened in TEODORO. So,
more or less, that is the explanation given by the SC in
VICTRONICS case.
Now, in a case the SC again touched on this criteria about litis
pendentia. Practically, it is a reiteration of VICTRONICS
COMPUTERS case. I am referring to the case of
ALLIED BANKING CORP. vs. CA – 259 SCRA 371, July 26,
1996
HELD: Justice Mendoza summarized the principle in this
manner: Given, therefore, the pendency of two actions, the
following are the relevant considerations in determining which
action should be dismissed:
1) the date of filing, with preference generally given to
the first action filed to be retained – that is the
priority in time rule;
2) whether the action sought to be dismissed was filed
merely to preempt the later action or to anticipate its
filing and lay the basis for its dismissal – that is the
TEODORO vs. MIRASOL case – the action is filed
merely as an anticipating action; and
3) whether the action is the appropriate vehicle for
litigating the issues between the parties.
So that is practically again the summary of VICTRONICS
COMPUTERS case.
PAMPANGA BUS CO. (PAMBUSCO) vs. OCEFEMIA – 18 SCRA
407
NOTE: This problem was already asked in the Bar.
FACTS: Cholo is a resident of Manila; Lew is a resident of
Davao. There was contract between them. Cholo filed a case
against Lew on let’s say, January 5 in Manila where he resides,
based on that contract. The venue is proper because the
plaintiff is a resident of Manila.
Now, let’s say on January 10, Lew not knowing about the
Manila case filed an identical action against Cholo in Davao
City. So hindi alam ni Lew na mayroon na palang kaso. So
dalawa na. And then on January 15, Lew received summons in
Manila case. By January 20, Cholo filed a motion to dismiss the
Davao case on the ground of litis pendentia.
According to Lew, there is no litis pendentia because when I filed
may case against Cholo, there is no pending action to talk about
because hindi ko alam. I received the summons very much
later.
ISSUE: Was there litis pendentia? Is Lew correct?
HELD: There was litis pendentia. Lew is wrong. Why? When
does an action, become pending? An action becomes pending
upon the filing of a case in court and the payment of docket fee.
The actions does not become pending only from the time you
receive the summons. It is pending form the moment it was
filed. Therefore when it was filed on January 5, it is already
pending although you did not know about it. That is the
reasoning in this case.
ANDRESONS GROUP vs. CA – GR 114928; January 21, 1997
FACTS: Willy Denate entered into an agency agreement with AG
as its commission agent for the sale of wines and liquors in
Davao City, Davao provinces and North Cotabato. On November
18, 1991, Denate filed a civil action for collection of sum of
money against AG before the RTC Davao.
Denate alleged that he was entitled to the amount of
P882,107.95, representing commissions from AG but that AG
had maliciously failed and refused to pay the same. On
December 19, 1991, AG likewise filed a complaint for collection
of sum of money with damages against Denate with the RTC
Kalookan City. AG alleged that Denate still owed it the sum of
P1,618,467.98 after deducting commissions and remittances.
Denate filed a Motion to dismiss the case with the Kalookan
RTC on the ground that there was another action pending
between the same parties for the same cause of action, citing
the case earlier filed with the RTC of Davao City.
AG filed its opposition to the Motion to Dismiss on the ground
that the RTC of Davao had not acquired jurisdiction over it.
RTC of Kalookan City ruled that: “the Davao case involves the
same parties, and involves substantial identity in the case of
action and reliefs sought, as in the instant case however,
jurisdiction over the parties has already been acquired by the
RTC Kaloocan, as Denate received the summons as early as Jan
8, 1992, and AG. On the other hand, the summons in the
Davao case has not yet been served as of Apr 21, 1992, the date
of the hearing of the instant motion, so much so that the said
Davao Court has not yet acquired jurisdiction over the parties.”
The CA reversed.
ISSUE: Should the action in the Kalookan RTC be dismissed on
the ground of lis pendens?
HELD: YES. “Lis pendens as a ground for the dismissal of a civil
action refers to that situation wherein another action is pending
between the same parties for the same cause of action. To
constitute the defense of lis pendens, it must appear that not
only are the parties in the two actions the same but there is
substantial identity in the cause of action and relief sought.”
“Further, it is required that the identity be such that any
judgment which may be rendered in the other would, regardless
of which party is successful, amount to res judicata on the case
on hand. All these requisites are present in the instant case:
1.)The parties in the Davao and Caloocan cases are the same;
2.) They are suing each other for sums of money which arose
from their contract of agency; 3.) The relief prayed for is based
on the same facts and there is identity of rights asserted; 4.)
Any judgment rendered in one case would amount to res
judicata in the other.”
“In conceptualizing lis pendens, we have said that like res
judicata as a doctrine, litis pendentia is a sanction of public
policy against multiplicity of suits. The principle upon which a
plea of another action pending is sustained is that the latter
action is deemed unnecessary and vexatious.”
“AG asserts that the Davao Court had not yet acquired
jurisdiction over the parties as the summons had not been
served as of April 21, 1992 and it claims that pendency of a
case, as contemplated by the law on lis pendens, presupposes a
valid service of summons.”
“This argument is untenable. A civil action is commenced by
filing a complaint with the court. The phraseology adopted in
the Rules of Court merely states that another action pending
between the same parties for the same cause is a ground for
motion to dismiss. As worded, the rule does not contemplate
that there be a prior pending action, since it is enough that
there is a pending action. Neither is it required that the party be
served with summons before lis pendens should apply. The rule
of lis pendens refers to another action. An action starts only
upon the filing of a complaint in court.”
“It must be emphasized that the rule on litis pendentia does not
require that the later case should yield to the earlier. The
criterion used in determining which case should be abated is
which is the more appropriate action or which court would be in
a better position to serve the interests of justice. Applying these
criteria, and considering that both cases involve a sum of money
collected in and around Davao, the Davao Court would be in a
better position to hear and try the case, as the witnesses and
evidence would be coming from said area.”
“WHEREFORE, the decision of the CA is hereby AFFIRMED.”
Sixth Ground: [f] THAT THE CAUSE OF ACTION IS
BARRED BY A PRIOR JUDGMENT OR BY THE STATUTE OF
LIMITATIONS; Actually there are two grounds here:
1.) Barred by prior judgment (RES ADJUDICATA) and
2.) Barred by statute of limitations.
BARRED BY PRIOR JUDGMENT OR RES JUDICATA. This is
also related to splitting of a cause of action. The only difference
is: there is already a judgment in the first action which has
become final and executory. That is why, you have to go back to
Rule 2, Section 4 – what is the effect of splitting a cause of
action? The pendency of one case or judgment in one case is a
ground f or the dismissal of the other.
So, if there is a case on appeal, the proper ground for dismissal
would be litis pendentia rather than res adjudicata because the
case is still pending before the CA – the judgment is not yet
final.
Res judicata as a ground for dismissal is based on two grounds,
namely:
(1) Public policy and necessity, which makes it to be the
interest of the State that there should be an end to
litigation – republicae ut sit litium; and
(2) The hardship on the individual of being vexed twice for
the same cause – nemo debet bis vexari et eadem
causa. A conflicting doctrine would subject the public
peace and quiet to the will and dereliction of
individuals and prefer the regalement of the litigious
on the part of the suitors to the preservation of the
public tranquility and happiness (Fels, Inc. vs.
Province of Batangas GR No.
168557, February 19, 2007).
Accordingly, courts will simply refuse to reopen what
has been decided. They will not allow the same parties
or their privies to litigate anew a question once it has
been considered and decided with finality. Litigation
must end and terminate sometime and somewhere.
The effective and efficient administration of justice
requires that once a judgment has become final, the
prevailing party should not be deprived of the fruits of
the verdict by subsequent suits on the same issues
filed by the same parties (ibid).
Concepts of res judicata:
(1) Bar by prior judgment, and
(2) Conclusiveness of judgment (Heirs of Wenceslao
Tabia vs. CA GR Nos. 129377 & 129399 February
22, 2007).
The first concept bars the prosecution of a second action upon
the same claim, demand or cause of action.
The second concept states that a fact or question which was in
issue in a former suit and was there judicially passed upon and
determined by a court of competent jurisdiction, is conclusively
settled by the judgment therein as far as the parties to that
action and actions in privity with them are concerned and
cannot be again litigated in a any future action between such
parties or their privies, in the same court or any other court of
concurrent jurisdiction on either the same or different cause of
action, while the judgment remains unreversed by proper
authority (Moraga vs. Spouses Somo 501 SCRA 118).
Elements of res judicata:
(1) The former judgment must be final;
(2) The court which rendered it had jurisdiction over the
subject matter and the parties;
(3) The judgment must be on the merits ; and
(4) There must be between the first and second actions,
identity of parties, subject matter and causes of action.
(PCI Leasing & Finance, Inc. Vs. Sps George M. dai
and Divina Dai GR No. 148980, Sept. 21, 2007)
The application of the doctrine of res judicata does not require
absolute identity of parties but merely substantial identity of
parties. There is substantial identity of parties when there is
community of interest or privity of interest between a party in the
first and a party in the second even if the first case did not
implead the latter (Fels, Inc. vs. Province of Batangas, supra).
The doctrine of res judicata applies to quasi-judicial proceedings
(Heirs of Wenceslao Tabia vs. CA, saupra), but there is no res
judicata in criminal proceedings.
Thus, the argument that the dismissal of a case during
preliminary investigation bars a further reinvestigation because
of the doctrine of res judicata, is untenable. Even if the
argument were to be expanded to contemplate “res judicata in
prison grey” or the criminal law concept of double jeopardy, the
reinvestigation cannot be barred by reason of double jeopardy.
The dismissal of a case during preliminary investigation does
not constitute double jeopardy, preliminary investigation not
being part of the trial (Trinidad vs. Office of the Ombudsman GR
166038 December 4, 2007).
Note: there can be res judicata without a trial, such as in a
judgment on the pleadings (Rule 34); a Summary Judgment (Rule
35); or an order of dismissal under Section 3 of Rule 17.
BARRED BY STATUE OF LIMITATIONS. Prescription. Filed
out of time.
A motion to dismiss on the ground of prescription will be given
due course only if the complaint shows on its face that the
action has already prescribed.
Prescription and laches:
1) Prescription is concerned with the fact of
delay while laches is concerned with the
effect of delay;
2) Prescription is a matter of time while
laches is a matter of equity;
3) Prescription is statutory while laches is
not;
4) Prescription applies at law, laches in
equity;
 5) Prescription is based on fixed time while
laches is not.
If the person claiming to be the owner of the property is in
actual possession thereof, the right to seek reconveyance, which
in effect seeks to quiet title to the property, does not prescribe.
One who is in actual possession of a piece of land claiming to be
the owner thereof may wait until his possession is disturbed or
his title is attacked before taking steps to vindicate his right.
(Heirs of Marcela Salonga Bituin vs. teofilo Caoleng, Sr. GR No.
15756, Aug. 10, 2007)
The grounds on motion to dismiss are waivable based on Rule 9,
Section 1 – defenses and objections not pleaded whether in a
motion to dismiss or in the answer are deemed waived.
HOWEVER when it appears from the pleadings or the evidence
on record:
1) that the court has no jurisdiction over the subject
matter
(Rule 16, Section 1 [b]);
2) that there is another action pending between the same
parties for the same cause (Rule 16, Section 1 [e]); or
3) that the action is barred by a prior judgment (Rule 16,
Section 1 [f]); or
4) that the action is barred statute of limitations (Rule
16, Section 1 [f]),the court shall dismiss the claim.
Seventh Ground: [g] THAT THE PLEADING ASSERTING THE
CLAIM STATES NO CAUSE OF ACTION;
That is also an important one – the pleading asserting the claim
does not state a cause of action. In most cases, it is the
defendant who files a motion to dismiss citing this ground.
When the ground for the dismissal is that the complaint states
no cause of action, such fact can be determined only from the
facts alleged in the complaint.
It is beside the point whether or not the allegations in the
complaint are true, for with a motion to dismiss a complaint
based on lack of cause of action, the movant only hypothetically
admits the truth of the facts alleged in the complaint; that is,
assuming arguendo that the facts alleged are true, those
allegations are insufficient for the court to render a valid
judgment upon the same in accordance with the prayer of the
complaint. (Universal Aquarius, Inc., et al., vs. Q.C. Human
Resources Management Corporation, GR No. 155990, Sept. 12,
2007)
Remember that under Rule 2, Section 1, every civil action must
be based on a cause of action. Therefore, the four (4) elements of
cause of action must be alleged. If one element is missing, there
is no cause of action and it is now a ground for dismissal.
I think the language of the previous rule is: The complaint
states no cause of action. That is the ‘64 Rules. But 1997 Rules:
The pleading asserting the claim states no cause of action. This
is broader because the pleading which does not state a cause of
action could be a complaint, counter-claim, cross-clam or third-
party complaint. So, it is broader.
Q: How will you know that the pleading (e.g. complaint)
states or does not state a cause of action?
A: The principle to remember is: Whether the pleading states a
cause of action or not is determined only by allegations in
the pleading. The rule is similar to on the ground of lack of
jurisdiction under paragraph [b].
Failure to state a cause of action and not lack or absence of
cause of action is the ground for a motion to dismiss. The
former means there is insufficiency in the allegations in the
pleading. The latter means that there is insufficiency in the
factual basis of the action.
Effect of action on motion to dismiss and corresponding
remedy:
1. Order granting a motion to dismiss is a final order
(without prejudice) -- remedy is to refile;
2. Order granting the motion with prejudice -- remedy is
appeal;
3. Order denying the motion to dismiss is interlocutory -
- file answer and proceed with the trial. If the
decision is adverse, appeal therefrom and raise as
error the denial of the motion to dismiss. If there is
grave abuse of discretion amounting to lack or excess
of jurisdiction, certiorari or prohibition may lie under
Rule 65.
The defendant is not allowed to say that the plaintiff has no
cause of action because what he is saying in his complaint is
not true and this is what is true. No, that will not lie. You have
to hypothetically admit again.
What is the rule? When a defendant files a motion to dismiss
under this ground, he hypothetically admits the truth of all the
allegations raised in the complaint. And he is posing this
question: “Assuming for the sake of argument that everything
contained in your complaint or pleading is really correct, are
you entitled to the relief prayed for?”
If the answer is YES, then it states a cause of action. If the
answer is NO, even then there is something wrong in the
complaint. It still states no cause of action. Therefore, when the
defendant disputes the truth of the allegations of the complaint,
the correct move is to file an answer and not a motion to
dismiss. He cannot dispute the allegation in the pleading
because he hypothetically admits them.
That is why the SC said in the case of
MUNICIPALITY OF BIÑAN vs. GARCIA – 180 SCRA 576
[1989]
HELD: The lack of cause of action is not a ground for the
dismissal of an action under Rule 16. The ground is the failure
of the complaint to state a cause of action which is obviously
not the same as the plaintiff not having a cause of action. The
lack of cause of action becomes evident during the course of the
trial but whether the complaint states a cause of action is only
limited to what the complaint says.
So, my complaint may state a cause of action when in reality it
does not. At that moment, you cannot dismiss it.
Now, of course the rule that a defendant who files a motion to
dismiss hypothetically admits all the allegations in the
complaint, as explained by the SC, refer only to material
allegations of ultimate facts. If those are evidentiary facts or
conclusions of fact or law, they are not admitted, for in the first
place, they have no place in the pleading.
That is the ruling in the 1990 case of
RAVA DEV'T CORP. vs. CA – 211 SCRA 144 [1992]
HELD: “The hypothetical admission is however limited to the
relevant and material facts well pleaded in the complaint and
inferences fairly deductible therefrom. The admission does not
extend to conclusions or interpretations of law; nor does it cover
allegations of fact the falsity of which is subject to judicial
notice.”
Meaning, you allege there something which is 100% false and
the court knows it, but you filed a motion to dismiss, are you
deemed to hypothetically admit something which everybody
knows is false? NO. When you file a motion to dismiss, you are
deemed to admit everything there is true except matters which
are 100% false and which the court itself knows to be false, or
the conclusions of the pleader because in the first place,
conclusions have no place in the pleading.
ROSITA TAN vs. CA – 295 SCRA 247 [Sept. 9, 1998]
FACTS: The controversy centers on 2 parcels of land, Manila
previously owned by one Alejandro Tan Keh and which were
then covered by TCT 35656.Fernando Tan Kiat claimed that he
bought the land from Tan Keh in 1954, but was unable to effect
immediate transfer of title in his favor in view of his foreign
nationality at the time of the sale. Nonetheless, as an assurance
in good faith of the sales agreement, Tan Keh turned over to
Kiat the owner's duplicate copy of TCT 35656 and, in addition,
executed a lease contract in favor of Kiat for 40 years.
However, in 1958, Tan Keh sold the subject properties to
Remigio Tan, his brother and father of Rosita Tan, with the
understanding that the land are to be held in trust by Remigio
for the benefit of Kiat and that Remigio would execute the
proper documents of transfer in favor of Kiat should Kiat at
anytime demand recovery of land.
TCT 35656 was thus cancelled and in lieu thereof TCT 53284
was issued in the name of Remigio. Another contract of lease
was executed by Tan Keh and Remigio in favor of Kiat to further
safeguard Kiat's interest on the land, but Kiat never paid any
rental and no demand whatsoever for the payment thereof had
been made on him.
Remigio was killed in 1968. At his wake, Rosita was reminded of
Kiat's ownership of the land and she promised to transfer the
land to Kiat who by then had already acquired Filipino
citizenship by naturalization.
Rosita, however, never made good their promise to convey the
land despite repeated demands by Kiat. In fact, Rosita had the
land fraudulently transferred to her name under TCT 117898.
Thus, the filing of the complaint for recovery of property.
On Nov 10, 1993, Rosita filed a Motion To Dismiss the
complaint, claiming that: the complaint stated no cause of
action; the cause of action has long prescribed; the cause of
action has long been barred by a prior judgment; and, the claim
has been waived, abandoned and/or extinguished by laches and
estoppel.
The RTC issued an order dismissing Kiat's complaint, acceding
to all the grounds set forth by Rosita in her motion to dismiss.
CA set aside the dismissal and ordered the remand of the case
for further proceedings.
HELD: There is merit in the petition. “There being no trust,
express or implied, established in favor of Kiat, the only
transaction that can be gleaned from the allegations in the
complaint is a double sale, the controlling provision for which is
Art. 1544 of the Civil Code. Kiat alleged that he bought the
subject properties from Tan Keh in 1954 but nonetheless failed
to present any document evidencing the same, while Remigio,
as the other buyer, had in his name TCT 53284 duly registered
on Oct 13, 1958.”
“Remigio, beyond doubt, was the buyer entitled to the subject
properties since the prevailing rule is that in the double sale of
real property, the buyer who is in possession of a Torrens title
and had the deed of sale registered must prevail. Rosita is in
possession of TCT 117898 which evidences her ownership of
land. Kiat relies simply on the allegation that he is entitled to
the properties by virtue of a sale between him and Tan Keh who
is now dead. Obviously, Kiat will rely on parol evidence which,
under the circumstances obtaining, cannot be allowed without
violating the "Dead Man's Statute" found in Sec. 23, Rule 130.
Clearly then, from a reading of the complaint itself, the
complaint indeed does not spell out any cause of action.”
“We also agree with Rosita's submission that Kiat's cause of
action has prescribed. TCT 53284 in the name of Remigio was
registered on Oct 13, 1958, while TCT 117898 in the name of
Rosita, was issued on Apr 21, 1975. Kiat filed his complaint on
Oct 18, 1993. CA held that the 10-year prescriptive period for
the reconveyance of property based on an implied trust cannot
apply in this case since
Kiat was in actual possession of the subject properties.”
“However, Kiat's occupation of the land was never in the concept
of an owner since he was a mere lessee who is estopped from
denying the title of Remigio as owner-lessor. It thus becomes
evident that the filing of Kiat's complaint in 1993 — 35 years
after TCT 53284 in the name of Remigio was registered and 18
years after the issuance of TCT 117898 in the name of Rosita —
was way beyond the 10-year time limit within which
reconveyance of property based on an implied trust should be
instituted. Kiat's cause of action, assuming that it exists, has
clearly prescribed.”
“Finally, Kiat is guilty of laches. Kiat's possession of the land
cannot be made the basis to deflect the effects of laches because
he is a mere lessee who, to repeat, cannot assert any adverse
claim of ownership over the subject properties against the
lessor-owner. What ought to be in focus is that, Kiat was not
able to effect the transfer of title over the subject properties in
his favor upon his purchase thereof from Tan Keh in 1954
because he was still a foreigner at that time. But Kiat later on
claimed that he was already a Filipino national when he
reminded Rosita of his ownership of the subject properties
during Remigio s wake sometime in 1968.”
“It may be reasonably deduced from these allegations that Kiat
acquired Filipino citizenship by naturalization, thus entitling
him to own properties in the 1960's, more or less. His mistake,
if it is one, is that he tarried for 30 years before formally laying
claim to the subject properties before the court. Considerable
delay in asserting one's right before a court of justice is strongly
persuasive of the lack of merit of his claim, since it is human
nature for a person to enforce his right when the same is
threatened or invaded. Thus, Kiat is estopped by laches from
questioning the ownership of the land.”
“WHEREFORE, the assailed decision of CA is SET ASIDE, and a
new one is rendered DISMISSING Fernando Tan Kiat's
complaint.”
Q: Now, is there an exception to the rule that when the
court determines whether there is a cause of action or not,
the court cannot look at the evidence – all must be based
on the complaint and there should be no appreciation of
any evidence?
A: Based on the EXCEPTION in the case of
SANTIAGO vs. PIONEER SAVINGS & LOAN BANK – 157
SCRA 100 [1987]
FACTS: The plaintiff filed a complaint against defendant with a
prayer for a preliminary injunction. So, it is not only a
complaint but plaintiff applied for a provisional remedy. And
under the law in provisional remedy, that must be heard
immediately because that is urgent, eh! And in a preliminary
injunction, there must be a hearing because preliminary
injunction cannot be granted ex parte.
So even before the answer could be filed, nagkaroon na ng
hearing and the plaintiff already presented evidence on his
cause of action during the hearing for the issuance of the writ of
preliminary injunction. Then after the hearing, here comes now
the defendant moving to dismiss the entire case because there
is no cause of action based on the evidence you presented.
Plaintiff: No, the cause of action is determined only based on the
allegations in the complaint and you do not look at the
evidence.
HELD: That is the general rule. If nag-present ka na ng
ebidensiya in the preliminary injunction, the court can now
determine whether there is a cause of action also based on the
evidence. So that is the exception because there has been a
reception of evidence ahead of a motion to dismiss.
“It is true that the determination of the sufficiency of a cause of
action must be limited to the facts alleged in the Complaint and
no other should be considered. However, where a hearing was
held and documentary evidence was presented, not on the
Motion to Dismiss but on the question of granting or denying an
application for a Writ of Preliminary Injunction, a motion to
dismiss for insufficiency of cause of action will be granted if
documentary evidence admitted by stipulation disclosing facts
sufficient to defeat the claim which authorizes the court to go
beyond disclosure in the complaint.”
So that would be the exception: where evidence has already
been presented in the main cause of action because of the
application for preliminary injunction.
Eight Ground: [h]THAT THE CLAIM OR DEMAND SET
FORTH
IN THE PLAINTIFF'S PLEADING HAS BEEN PAID, WAIVED,
ABANDONED, OR OTHERWISE EXTINGUISHED;
Under Obligations and Contracts, the modes of extinguishing
obligation are Payment, Performance, Condonation,
Compensation, Remission, etc. So if I have already paid a sum
of money and you are filing a case to collect such amount, I can
file a motion to dismiss on the ground that the claim or demand
set forth in the complaint has already been paid or otherwise
extinguished.
Laches as a ground for a motion to dismiss
In one case, in reversing the RTC’s order of dismissal, the CA
held that laches could not be a ground to dismiss a complaint
since it is not one of the grounds for the dismissal of a civil
action under Section 1 of Rule 16 of the Rules of Court. The SC
categorically held that the CA “is not entirely correct.” Under
paragraph (h) of Sec. 1 of Rule 16, one of the grounds for the
dismissal is where a claim or demand set forth in the plaintiff’s
pleading has been paid, waived, abandoned, or otherwise
extinguished. The Court declared:
“The language of the rule, particularly on the relation of the
words “abandoned” and “otherwise extinguished” to the phrase
“claim or demand deemed set forth in the plaintiff’s pleading” is
broad enough to include within its ambit the defense of bar by
laches. However, when a party moves for the dismissal of the
complaint based on laches, the trial court must set a hearing on
the motion where the parties shall submit not only their
arguments on the questions of law but also their evidence on
the questions of fact involved. Thus, being factual in nature, the
elements of laches must be proved or disproved through the
presentation of evidence by the parties (Pineda vs. Heirs of
Eliseo Guevara, GR 143188 February 14, 2007).
Ninth Ground: [i] THAT THE CLAIM ON WHICH THE ACTION
IS
FOUNDED IS UNENFORCEABLE UNDER THE PROVISIONS
OF THE STATUTE OF FRAUDS
Statute of Frauds are contracts under Article 1403 of the
Civil Code which are unenforceable if not made in writing.
However there is still a valid contract, only they are
unenforceable because they were not reduced into writing.
EXAMPLES of Statute of Frauds under Article 1403:
1) a contract that by its terms is not to be performed
within one year from the making of such contract;
2) a special promise to answer for the debt, default, or
miscarriage of another;
3) an agreement made in consideration of marriage, other
than a mutual promise to marry;
4) an agreement for the sale of goods, chattels or things
in action, at a price not less than five hundred
pesos…;
5) an agreement for the leasing for a longer period than
one year, or for the sale of real property or an interest
therein;
6) a representation as to the credit of a third person.
Tenth Ground: [j] THAT A CONDITION PRECEDENT FOR
FILING THE CLAIM HAS NOT BEEN COMPLIED
WITH.
Meaning, the law requires something to be done before going to
court and if you file the case in court immediately without
complying with that condition precedent, then the defendant
can move for dismissal of the complaint.
EXAMPLES:
1.) Failure to exhaust administrative remedies;
2.) Failure to undergo Barangay Conciliation;
For parties residing in the same city, one must
first settle or compromise the suit at the barangay
level before raising the action.
3.) Article 151 of the Family Code contemplates suit
between family members.
It must be alleged in the complaint that earnest efforts towards
a compromise is made between: husband and wife, parents and
children, ascendants and descendants, brothers and sisters,
whether full or half blood. So you are not allowed to file a case
directly between family members in order to preserve the family
as a basic social institution being the foundation of the nation.
So it should appear form a verified complaint or petition that
earnest efforts toward a compromise have been made, but the
same have failed. If it is shown that no such efforts were in fact
made, the case must be dismissed.
Q: What about a suit against a nephew?
A: Article 151 will not apply. One can file directly to the court
because even though he is your relative he is not a member of
your family.
Q: How about a suit against a brother and a stranger?
A: There is no need for the requirement of earnest efforts. It is a
mixed case, there is already a stranger included.
Now, under the last sentence of Article 151, “This rule shall not
apply to cases which may not be the subject of compromise
under the Civil Code.” This refers to Article 2035 of the New
Civil Code:
Art. 2035. No compromise upon the following questions
shall be valid:
1. The civil status of persons;
2. The validity of a marriage or a legal separation;
3. Any ground for legal separation;
4. Future support;
5. The jurisdiction of courts;
6. Future legitime.
Under the 1964 Rules, this last ground (non-compliance with a
condition precedent requirement) is not found therein. However,
there is a ground that is no longer found in the present Rules of
Court, that the suit between members of the family and that no
earnest efforts towards a compromise has been made, this was
stated as the last ground. It does not mean, however, that it
can no longer be applied. This has been incorporated under
paragraph [j] of the new rules. It is already a broader ground.
Sec. 2. Hearing of motion. At the hearing of
the motion, the parties shall submit their
arguments on the questions of law and
their evidence on the questions of fact
involved except those not available at that
time. Should the case go to trial, the
evidence presented during the hearing
shall automatically be part of the evidence
of the party presenting the same. (n)
During the hearing of a motion to dismiss, the movant is
allowed to present evidence to prove his claim. Like for example:
the venue is not properly laid or the action is already
extinguished by payment or the action is already barred by a
prior judgment.
GENERAL RULE: On hearing on a motion to dismiss, the
defendant is allowed to present evidence to prove the
ground for his dismissal.
EXCEPTION: He is not allowed when the grounds are:
1.) Lack of jurisdiction over the subject matter
(paragraph [b]); or
2.) The pleading asserting the claim states no cause of
action (paragraph [g])
When these are the grounds invoked, the defendant is not
allowed to present evidence because you are hypothetically
admitting all the allegations in the complaint as true and correct.
You are not allowed to dispute or deny those allegations. It
shall be based purely on the allegations of the complaint so you
are not allowed to prove that those allegations are not true.
And should the case go to trial, the evidence presented shall
automatically form part of the evidence of the party presenting
the same. There is no need to present those evidences again
during the trial because the evidence during the hearing is
automatically part of the evidence during the trial. This is
similar to the rule on Bail in Criminal Procedure.
Sec. 3. Resolution of motion. After the
hearing, the court may dismiss the action
or claim, deny the motion, or order the
amendment of the pleading.
The court shall not defer the resolution of
the motion for the reason that the ground
relied upon is not indubitable.
In every case, the resolution shall state clearly
and distinctly the reasons therefor.
(3a)
Q: How will the court rule on the motion to dismiss?
A: The following:
1.) The court will dismiss the action. (motion is
granted);
2.) The court will deny the motion (proceed to
trial); or
3.) The court will order the amendment of the
pleading
In resolving a motion to dismiss, the court is
required to give reasons for its resolution.
When the court orders the amendment of the pleading, in effect
the motion to dismiss is also denied. So, the rule is when the
ground for the dismissal can be cured by amending the
complaint, do not dismiss but require the party to amend the
complaint. That is a polite way of denying your motion to
dismiss.
Like for example, the cause of action is imperfectly stated,
kulang ng allegation ba. So the plaintiff would say: “Your Honor,
we will add one sentence para makumpleto.” Sabi ng judge: “No!
no! no! We will dismiss.” No, the judge cannot do that. Curable
yon eh! And amendment of the pleading is favored.
Q: Suppose the plaintiff filed a complaint and the defendant
files a motion to dismiss, can the plaintiff still amend his
complaint? Otherwise stated, can the plaintiff still amend
his complaint when there is already a motion to dismiss?
A: Ah YES! Because it is the right of the plaintiff to amend his
complaint before a responsive pleading is served upon him. And
a motion to dismiss is not a responsive pleading. It is not even a
pleading (Guirao vs. Ver, April 29, 1966) The responsive
pleading to the complaint is the Answer.
Q: Now, suppose there is already an order of dismissal in
which the court has already ordered the dismissal of the
case, because it does not state the cause of action of the
complaint. Plaintiff: “Alright! Motion to amend the
complaint to state the cause of action and set aside the
order of dismissal.” Can that still be done at that stage
where there is already an order of dismissal?
A: YES! Provided the order of dismissal has not yet become
final and executory because the rule is absolute: for as long as
there is still no responsive pleading, the right of the plaintiff to
amend his complaint is a matter of right.
The second paragraph of the section “The court shall not defer
the resolution…” is an amendment of the previous rule. Under
the previous rule, the court had four options: 1) grant the
motion; 2) deny; 3)order amendment; and 4) defer the resolution
for the reason that the ground relied upon is not indubitable.
What does it mean?
‘Indubitable’ means without a doubt, thus the ground was not
without a doubt, it is doubtful, it is not indubitable.
EXAMPLE: Defendant filed a motion to dismiss the case and the
court analyzed the ground. After analyzing, the court is not
sure. The ground seems to be valid but the court also doubts.
Parang 5050 ba.
Now the previous rule allows the court not to act—it will not act,
it will not deny. The court will just postpone the resolution of
the motion to dismiss, until the trial, because the ground is
doubtful. In the course of the trial, the court may realize
whether the ground is correct or not. When the ground
becomes clearer, the court may say, “All right, I will grant the
motion”. That was allowed under the previous rule.
NOW, that is not allowed anymore. The court really has to act
on the motion: either grant it, deny it, or order the amendment.
Even under the previous rule, there were already instances
where the SC said that the courts should not postpone the
resolution, especially when the ground of dismissal is lack of
jurisdiction over the subject matter, or that the complaint states
no cause of action. Why? The court only has to read the
complaint and there is no need of presentation of evidence to
rule on the motion. There were decided cases along that line,
and obviously that reasoning predominated the committee.
The last paragraph is self-explanatory, whether the Court denies
or grants the Motion, it must support its Order.
Sec. 4. Time to plead. If the motion is
denied, the movant shall file his answer
within the balance of the period prescribed
by Rule 11 to which he was entitled at the
time of serving his motion, but not less
than five (5) days in any event, computed
from his receipt of the notice of the
denial. If the pleading is ordered to be
amended, he shall file his answer within
the period prescribed by Rule 11 counted
from service of the amended pleading,
unless the court provides a longer period.
(4a)
Q: Suppose defendant files a motion to dismiss and the
court granted the motion. The case is dismissed. What
happens to the case?
A: It’s the end of the case. The defendant has no more
problem because the case has been ordered dismissed.
Q: Suppose the court denies the motion to dismiss?
A: Defendant is now obliged to file his answer. Under Rule
11, he has within the balance of the 15 days but not less than 5
days to file his answer.
Q: But instead of filing his answer, he files a motion to dismiss.
Like for example, after consuming 8 days, he files a motion to
dismiss, the running of the period stops. After a while, he
receives an order denying his motion. How many more days
does he have?
A: Seven (7) days only. He must file his answer within the
remaining balance of the period.
This is a radical departure from the previous Rule. Under the
1964 Rules, when you file a motion to dismiss on the eight day,
and the motion is denied, you have 15 days all over again to file
an answer. NOW, no more – you only have the remaining
balance of the 15day period.
Q: Now, suppose you file your motion to dismiss on the
13th day, so, two days to go. If your motion is denied, do
you only have two days to file your Answer?
A: NO. You are entitled to not less than five (5) days. This is
identical with Rule 12, Section 5 on Bills of Particular:
Rule 12, Sec. 5. Stay of period to file
responsive pleading. - After service of the
bill of particulars or of a more definite
pleading, or after notice of denial of his
motion, the moving party may file his
responsive pleading with the period to
which he was entitled at the time of filing
his motion, which shall not be less than
five (5) days in any event. (1[b]a) As a rule,
the filing of an answer, going through the
usual trial process, and the filing of a timely
appeal from an adverse judgment are the
proper remedies against a denial of a motion
to dismiss. The filing of an appeal from an
order denying a motion to dismiss is not the
remedy prescribed by existing rules. The
order of denial, being interlocutory, is not
appealable by express provision of Section
1(b), Rule 41.
Where the judgment or final order is not appealable, like an
interlocutory order, Rule 41 declares that the “aggrieved party
may file an appropriate civil action under Rule 65.” The remedy
therefore, would be certiorari, prohibition or mandamus. This
remedy however, is predicated upon an allegation and a
showing that the denial of the motion was tainted with grave
abuse of discretion amounting to lack of jurisdiction where the
remedy chosen is either certiorari or prohibition or both. In case
the remedy chosen is mandamus, there must be a showing that
the respondent court unlawfully neglected the performance of
an act which the law specifically enjoins. Without such showing,
Rule 65 cannot be availed of as a remedy.
Jurisprudence declares:
“An order denying a motion to dismiss is an interlocutory order
which neither terminates nor finally disposes of a case, as it
leaves something to be done by the court before the case is
finally decided on the merits. As such, the general rule is that
the denial of a motion to dismiss cannot be questioned in
a special civil action for certiorari which is a remedy
designed to correct errors of jurisdiction and not errors of
judgment. Neither can a denial of a motion to dismiss be the
subject of an appeal unless and until a final judgment or order
is rendered. In order to justify the grant of the extraordinary
remedy of certiorari, the denial of the motion to dismiss must
have been tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction (Gouglas Lu Ym vs. Gertrudes
Nabua 451 SCRA 298).
Sec. 5. Effect of dismissal. Subject to the
right of appeal, an order granting a motion
to dismiss based on paragraphs (f), (h) and
(i) of section 1 hereof shall bar the refiling
of the same action or claim. (n)
Remedies of the plaintiff if the motion to dismiss is granted
If the motion to dismiss is granted, the complaint is dismissed.
Since the dismissal is final and not interlocutory in
character, the plaintiff has several options.
Depending upon the ground for the dismissal of the action, the
plaintiff may simply refile the complaint. For instance, if the
ground was anchored on improper venue, the plaintiff may file
the action in the proper venue.
He may appeal from the order of dismissal where the ground
relied upon is one which bars the refiling of the complaint like
res judicata, prescription, extinguishment of the obligation or
violation of the statute of frauds (Sec. 5). Since the complaint
cannot be refiled, the dismissal is with prejudice. Under Section
1(g) of Rule 41, it is an order dismissing an action without
prejudice which cannot be appealed from. Conversely, where the
dismissal is with prejudice, an appeal from the order of
dismissal is not precluded. However, where the ground for
dismissal for instance, is the failure of the complaint to state a
cause of action, the plaintiff may simply file the complaint anew
but since the dismissal is without prejudice to its refiling, the
order of dismissal cannot be appealed from under the terms of
Section 1(h) of Rule 41 of the Rules of Court.
Where the ground for dismissal is lack of jurisdiction over the
subject matter, the dismissal is without prejudice to the refiling
of the complaint. Following the tenor of Sec. 1(g) of Rule 41, an
order dismissing a complaint for lack of jurisdiction over the
subject matter is a dismissal without prejudice and hence, no
appeal may be had from that order. Despite Section 1 of Rule
41, appeal may nevertheless be taken from the order dismissing
an action for lack of jurisdiction over the subject matter in a
situation contemplated under Section 8 of Rule 40. This
provision specifically allows, by necessary implication, an
appeal from orders dismissing cases on the ground of lack of
jurisdiction over the subject matter. The tenor of Section 8 of
Rule 40 therefore, operates to furnish an exception to the
general rule enunciated in Section 1 of Rule 41. This situation
applies in dismissal made in the MTC and not to a dismissal in
the RTC.
The plaintiff may also avail of a petition for certiorari. This
remedy is available if the court gravely abuses its discretion in a
manner amounting to lack of jurisdiction and is the appropriate
remedy in those instances when the dismissal is without
prejudice (Sec. 1, Rule 41).
Normally, when the motion to dismiss is granted, it does not
prevent the plaintiff from re-filing the case. Like for example, the
case is dismissed for lack of jurisdiction over the subject matter.
I can re-file that in the proper court. Or, suppose the case is
dismissed for improper venue, so I will file it in the proper
venue.
But there is a new provision, that is, if the ground for a motion
to dismiss are the following you cannot re-file it anymore. That
is: paragraphs [f], [h] and [i]. Ano iyon? Prior judgment, res
judicata, statute of limitations, prescription of the claim or
statute of frauds.
Tama man ba! common sense lang yan eh! Kaya nga na-dismiss
eh kasi res judicata na, tapos magpa-file ka na naman ng
panibago? Hindi na puwede yan. Or, it is already dismissed
because the obligation has already been paid, then you will file?
That cannot be done anymore. So, in other words, it is res
judicata already. So to summarize:
GENERAL RULE: A case that has been dismissed can be re-
filed.
EXCEPTIONS: When the case was dismissed on the following
grounds:
1) That the cause of action is barred by a prior judgment
or by the statute of limitations;
2) That the claim or demand set forth in the plaintiff’s
pleading has been paid, waived, abandoned or
otherwise
extinguished; or
3) That the claim on which the action is founded is
unenforceable under the provisions of the Statute of
Frauds.
Q: For example, the court says: “Your action is barred by
res judicata.” But actually, the court is wrong, what is your
REMEDY?
A: Your remedy is to appeal from the order of dismissal, but not
to re-file the case because that would already be res adjudicata.
That is common sense.
Sec. 6. Pleading grounds as affirmative
defenses. If no motion to dismiss has been
filed, any of the grounds for dismissal
provided for in this Rule may be pleaded as
an affirmative defense in the answer and,
in the discretion of the court, a
preliminary hearing may be had thereon as
if a motion to dismiss had been filed. (5a)
The dismissal of the complaint under this
section shall be without prejudice to the
prosecution in the same or separate action
of a counterclaim pleaded in the answer.
(n)
Q: For example, I’m a defendant, I receive a complaint and I
believe I have a ground for a Motion to Dismiss under
Section 1 from [a] to [j]. I will not file a motion to dismiss,
instead, I will file an answer, is that allowed?
A: Yes, because it is OPTIONAL for a defendant to file a
motion to dismiss. And I can file my answer and a ground for
dismissal can be raised as an affirmative defense.
So the grounds for a motion to dismiss are convertible. Instead
of filing a motion to dismiss, I will allege the grounds as
affirmative defenses, like—no cause of action, litis pendentia, res
adjudicata, payment, statute of frauds, prescription…
Now, if you will file an answer raising the ground for a motion to
dismiss as an affirmative defense, then you are prolonging the
agony because if the court has no jurisdiction, or there is
improper venue or whatever it is, if you file a motion to dismiss
in the first place and you are sustained, then tapos na sana!
Under Section 6, after filing of such answer, the defendant can
ask for a preliminary hearing on his affirmative defenses as if a
motion to dismiss has been filed. Meaning, this should be heard
ahead. And if the court grants the preliminary hearing, you can
move your affirmative defenses ahead and if you correct, the
court will dismiss the case. So, it has the same effect as if you
file a motion to dismiss. That is why a preliminary hearing may
be had as a motion to dismiss.
Now, you ask me why should the defendant do this? Why file
an answer and then preliminary hearing?
Because this is a matter of strategy on trial technique. If I will
file a motion to dismiss which is not a responsive pleading, the
plaintiff may amend the complaint, and I cannot prevent him
from amending because the amendment is still a matter of right
at that moment.
That follows the general principle in trial technique. Do not
expose your adversary’s mistake when he is in a position to
correct them. When the point is reached when he cannot
anymore correct the error, then, expose it. That is the advice in
trial technique. The second paragraph of Section 6 is new:
The dismissal of the complaint under this
section shall be without prejudice to the
prosecution in the same or separate
action of a counterclaim pleaded in the
answer. (n)
Note: If the defendant would want to file a counterclaim,
he should not file a motion to dismiss. Instead, he should
allege the grounds of a motion to dismiss as affirmative
defenses in his answer with a counterclaim. A preliminary
hearing may be had thereon, and in the event the
complaint is dismissed, the defendant can prosecute his
counterclaim pursuant to said second paragraph.
Q: Suppose I will file an answer with affirmative defenses
and with a counterclaim. If the court dismisses the
complaint, what happens to my counterclaim?
A: Under the NEW RULES, there are two possibilities:
1.) The defendant can still prosecute his counterclaim in
a separate action; or
2.) The defendant can dismiss the complaint but the
counterclaim remains alive.
In the OLD RULES, when the main case is dismissed, the
counterclaim is automatically dismissed, lalo na ‘yong
compulsory. If the defendant moved to dismiss the case, in
effect he was also moving to dismiss his counterclaim. That is
what the SC said in the case of
INT’L CONTAINER TERMINAL SERVICES vs. CA– 214 SCRA
456 [OBSOLETE!]
HELD: “A compulsory counterclaim is so intertwined with the
complaint that it would not remain pending for independent
adjudication by the court after the dismissal of the complaint
which had provoked the counterclaim in the first place. As a
consequence, the dismissal of the complaint operated also to
dismiss the counterclaim questioning the complaint. When
defendant moved to dismiss the main action, he also moved, in
effect, for the dismissal of the counterclaim.”
That is the prior rule. That ruling is already OBSOLETE
because of this new paragraph, “The dismissal of the
complaint under this section shall be without prejudice to
the prosecution in the same or separate action of a
counterclaim pleaded in the answer.” Rule 17
DISMISSAL OF ACTIONS
Section 1. Dismissal upon notice by plaintiff.
A complaint may be dismissed by the
plaintiff by filing a notice of dismissal at
any time before service of the answer or of
a motion for summary judgment. Upon
such notice being filed, the court shall
issue an order confirming the dismissal.
Unless otherwise stated in the notice, the
dismissal is without prejudice, except that
a notice operates as an adjudication upon
the merits when filed by a plaintiff who
has once dismissed in a competent court
an action based on or including the same
claim. (1a)
Q: Can a plaintiff file a complaint and later change his mind
and withdraw? Meaning, can he dismiss his own
complaint?
A: YES. And it is a matter of right.
Q: How?
A: By filing a NOTICE OF DISMISSAL, not a motion, at ANY
TIME BEFORE service of the answer or a motion for Summary
Judgment. Meaning, for as long as the defendant has not yet
filed his answer, the plaintiff has the right to dismiss his own
complaint by simply sending the court what is known as a
notice of dismissal.
This is similar to Rule 10 on amendments. When is amendment
a matter of right? For as long as there is no answer yet
amendment is a matter of right.
When the dismissal as a matter of right ceases
Under the clear terms of Section 1, the dismissal as a matter of
right ceases when an answer or a motion for summary
judgment is served on the plaintiff and not when the answer
or the motion is filed with the court. Thus, if a notice of
dismissal is filed by the plaintiff even after an answer has been
filed in court but before the responsive has been served on the
plaintiff, the notice of dismissal is still a matter of right.
Withdrawal not automatic upon filing of notice of dismissal
in court
Take note that upon filing of the notice of dismissal, the court
shall issue an order confirming the dismissal. The reason is
that, the withdrawal is not automatic. Withdrawal does not
take effect until confirmed by the court. This is in keeping
with the respect due to the court.
It is not the order confirming the dismissal which operates to
dismiss the complaint. As the name of the order implies, said
order merely confirms a dismissal already effected by the filing
of the notice of dismissal. Since the order issued by the court
merely confirms the dismissal, it follows that the court does not
have to approve the dismissal because it has no discretion on
the matter. Before an answer or a motion for summary
judgment has been served upon the plaintiff, the dismissal by
the plaintiff by the filing of a notice is a matter of right. The
dismissal occurs as of the date the notice is filed by the plaintiff
and not the date the court issues the order confirming the
dismissal.
Under the rules on civil procedure, there are two types of
dismissal:
1) Dismissal with prejudice – the case can no longer be
refiled;
2) Dismissal without prejudice –the case can be re-filed.
Q: Is the dismissal under Section 1 with or without
prejudice?
A: GENERAL RULE: The dismissal is WITHOUT PREJUDICE.
The case can be re-filed.
Exceptions: The dismissal will however, be with prejudice in
any of the following conditions:
1.) When in the notice of dismissal itself, the
plaintiff himself stated that he is dismissing
his own complaint with prejudice; OR
2.) When a notice operates as an adjudication
upon
the merits when filed by a plaintiff who has once
dismissed in a competent court an action based
on or including the same claim. This is the
TWODISMISSAL RULE.
If the plaintiff files a notice of dismissal providing therein a
reason that prevents the refiling of the complaint, the dismissal
must be deemed one with prejudice even if the notice does not
state that the dismissal is with prejudice. This happens when
for instance, the notice provides that the plaintiff recognizes the
fact of prescription or extinguishment of the obligation of the
defendant or for reasons stated in Sec. 5 of Rule 16 as when the
action is barred by res judicata.
ILLUSTRATION (Two-Dismissal Rule): I borrowed money from
Mr. Castaños and I did not pay him. So he filed a case against
me to collect the unpaid loan. Upon receipt of the summons, I
approach Mr. Castaños, “Huwag mo nalang ituloy ang kaso mo,
babayaran kita. I will not file an Answer, hindi nalang ako
kukuha ng lawyer. Idismiss mo na lang iyan, babayaran kita
next month, wala lang akong kuwarta ngayon. I will refund you
for the filing fee”. Ngayon, payag siya. He will send a notice to
the court dismissing his complaint. The case is dismissed,
without prejudice.
After one month, I did not pay again. So nagalit si Mr.
Castaños, he re-filed the same complaint, pangalawa na. I now
receive another summons. So, lapit ako sa kanya, “Bakit mo fi-
nile kaagad?” “Eh, sabi mo, after one month magbabayad ka.”
“Wala lang akong kuwarta, next month pa dadating ang
kuwarta ko. I-dismiss mo na ULI yan. Basta, promise, next
month, bayad na talaga ako. Isauli ko ang ginasta mo sa filing
fee.” Tapos, naatik na naman siya. So he files a notice of
dismissal again, doble. The same case was dismissed twice. He
availed of the dismissal in Section 1 twice.
After next month, hindi na naman ako nagbayad. So nagalit na
naman siya. So he filed the same case for the third time. I
receive the summons. You know what I will do? I will file a
motion to dismiss the case because the second dismissal is
automatically with prejudice.
Two-dismissal rule
The two-dismissal rule applies when the plaintiff has
(a) twice dismissed actions, (b) based on or
including the same claim, (c) in a court of
competent jurisdiction.
The second notice of dismissal will bar the refiling of the action
because it will operate as an adjudication of the claim upon the
merits. In other words, the claim may only be filed twice, the
first being the claim embodied in the original complaint. If the
refiled claim or complaint is dismissed again through a second
notice of dismissal, that second notice triggers the application of
the twodismissal rule and the dismissal is to be deemed one
with prejudice because it is considered as an adjudication upon
the merits.
For the above rule to apply, the complaints must have been
dismissed in a court of competent jurisdiction. To illustrate:
PP files in the RTC an action to collect P300,000.00 from DD.
The complaint was dismissed when PP immediately filed a
notice of dismissal. The same claim was again filed in the MTC.
Before DD served either an answer or a motion for summary
judgment, PP filed a notice of dismissal. Does the two-dismissal
rule apply?
It does not. The first court, the RTC was not a court of
competent jurisdiction because the claim was below its
jurisdictional amount.
Q: Suppose you file a complaint against Mr. Cruz and you
immediately changed your mind and had it dismissed under
Section 1. And then after having dismissed, you changed
again your mind and you want to re-file the action. Now,
How do you re-file the action? Do you file another
complaint again? A: That was answered in the case of
ORTIGAS AND CO. LTD PARTNERSHIP vs. VELASCO –
234 SCRA 455 [1994]
HELD: It DEPENDS on whether the order of dismissal has
already become final.
a) If within 15 days from the time it is ordered
dismissed, all that you have to do is to ask the
court to set aside the order of dismissal and re-
vive the case because the order of dismissal have
not yet become final.
b) However, if the order of the court dismissing the
complaint based on your own notice has become
final after 15 days, then the only way you can
revive it is to file an entirely new action.
Sec. 2. Dismissal upon motion of plaintiff.
Except as provided in the preceding
section, a complaint shall not be dismissed
at the plaintiff's instance save upon
approval of the court and upon such terms
and conditions as the court deems proper.
 If a counterclaim has been pleaded by a
defendant prior to the service upon him of
the plaintiff's motion for dismissal, the
dismissal shall be limited to the complaint.
The dismissal shall be without prejudice to
the right of the defendant to prosecute his
counterclaim in a separate action unless
within fifteen (15) days from notice of the
motion he manifests his preference to
have his counterclaim resolved in the
same action. Unless otherwise specified in
the order, a dismissal under this paragraph
shall be without prejudice. A class suit
shall not be dismissed or compromised
without the approval of the court. (2a)
Dismissal upon motion/Discretionary dismissal
Q: If the defendant has already filed an answer or a motion
for summary judgment, may the complaint still be
dismissed by the plaintiff?
A: YES, but it is already upon the approval of the court and upon
such terms and conditions as the court deems proper. Meaning,
the dismissal under Section 2 by the plaintiff is no longer a
matter of right because the defendant has already filed an
answer or a motion for summary judgment.
Effect of dismissal upon a counterclaim already pleaded
If a counterclaim has been pleaded by the defendant prior to the
service upon him of the plaintiff's motion for dismissal, the
dismissal shall be limited to the complaint.
Q: Suppose I file a case against you and you file an answer
with counterclaim, and I filed a notice dismissing my own
complaint. Can it be done? What happens to the
counterclaim?
A: Yes it can be done but the dismissal of the complaint DOES
NOT necessarily mean the dismissal of the counterclaim whether
compulsory or permissive. So a compulsory counterclaim
remains despite the dismissal of the complaint. The dismissal
shall be limited to the complaint.
Such dismissal shall be without prejudice to the right of the
defendant to either:
1) prosecute his counterclaim in a separate action or
2) in the same action. Should he choose to have his
counterclaim resolved in the same action, he must
notify the court of his preference within fifteen
(15) days from notice of the plaintiff’s motion to
dismiss.
Should he opt to prosecute his counterclaim in a separate
action, the court should render the corresponding order
granting and reserving his right to prosecute his claim in a
separate complaint.
A similar rule is adopted in Sec. 6 Rule 16 and Sec. 3 of Rule
17, wherein the dismissal of the complaint does not carry with it
the dismissal of the counterclaim/. The same provision also
grants the defendant a choice in the prosecution of his
counterclaim.
These alternative remedies of the defendant are available to him
regardless of whether his counterclaim is compulsory or
permissive.
Q: Now, suppose the complaint is dismissed under Section 2
upon initiative of the plaintiff, can he re-file the case?
A: Yes. The rule is the same as Section 1 – the dismissal of the
complaint under Section 2 shall be without prejudice.
Except:
1) when otherwise stated in the motion to dismiss, or
2) unless otherwise specified in the order of
dismissal.
So, the dismissal under Sections 1 and 2 is generally without
prejudice.
Court approval necessary in the dismissal or compromise of
a class suit:
The last sentence says, “A class suit shall not be dismissed or
compromised without the approval of the court.” When you file
a class suit, you are not only fighting for yourself – you are
fighting for the others. So, you cannot just withdraw it on your
own or else, you will cause prejudice to everybody. So, in order
to prevent the person who filed it from prejudicing the right of
the members of the class suit, it cannot be dismissed or
compromised without the approval of the court.
Sec. 3. Dismissal due to fault of plaintiff. If,
for no justifiable cause, the plaintiff fails
to appear on the date of the presentation
of his evidence in chief on the complaint,
or to prosecute his action for an
unreasonable length of time, or to comply
with these Rules or any order of the court,
the complaint may be dismissed upon
motion of the defendant or upon the
court's own motion, without prejudice to
the right of the defendant to prosecute his
counterclaim in the same or in a separate
action. This dismissal shall have the effect
of an adjudication upon the merits, unless
otherwise declared by the court. (3a) Q:
What are the grounds for the dismissal of
the case under Section 3?
A: The following are the grounds for the dismissal of a case
under Section 3:
1.) The plaintiff fails to appear, for no justifiable
cause, on the date of the presentation of his
evidence-inchief on the complaint;
2.) The plaintiff fails to prosecute his action for
an unreasonable length of time (Nolle
Prosequi);
3.) The plaintiff fails to comply with the Rules of
Court or
4.) The plaintiff fails to comply with any order of
the
court for no justifiable reason or cause.
First Ground: THE PLAINTIFF FAILS TO APPEAR ON THE
DATE OF
THE PRESENTATION OF HIS EVIDENCE-IN-CHIEF ON THE
COMPLAINT
Evidence-in-chief is the main evidence of the plaintiff to prove
his cause of action.
So if the plaintiff fails to appear on the date of the presentation
of his evidence-in-chief on the complaint, the case can be
dismissed.
In other words, the plaintiff's failure to appear at the trial after
he has presented his evidence and rested his case does not
warrant the dismissal of the case on the ground of failure to
prosecute. This has been taken from the ruling of the SC in the
case of:
JALOVER vs. YTORIAGA – 80 SCRA 100 [1977]
FACTS: Plaintiff appeared during the trial and presented his
evidence and then he rested. And then during the hearing of the
presentation of the defendant’s evidence, plaintiff failed to
appear. And since he failed to appear during trial, the court
dismissed the case.
HELD: The dismissal is WRONG. Why dismiss the case when he
has already presented his evidence? It is tantamount to deciding
the case against the plaintiff without considering the evidence
that he has presented. What is the remedy then?
What the court should do is to proceed with the presentation of
the defendant’s evidence without the plaintiff. Do not dismiss
the case the plaintiff has already presented his evidence.
That is why the language in the old rule is ‘failure to prosecute’
or another term is ‘non-suited’. But the rules of court now want
to avoid the word ‘non-suited’ because it carries a different
meaning.
If plaintiff fails to appear on the date of the presentation of his
evidence-in-chief, but he arrived a little bit late, or he failed to
appear because he failed to receive the notice setting it, that is
different because the law says, “for no justifiable cause.” If I am
late but a few minutes only, that is not a good basis to dismiss
the case forever. There is no intentional failure not to appear. In
which case, if there is an order of dismissal, it should be set
aside because the condition is “for no justifiable cause.”
If it was the defendant who failed to appear without justifiable
cause, the plaintiff should move that the trial shall proceed
exparte. But definitely, the defendant cannot be declared in
default because he already filed an answer.
Second Ground: FAILURE OF PLAINTIFF TO PROSECUTE
HIS ACTION FOR UNREASONABLE LENGTH OF
TIME.
EXAMPLE: Maybe every time his case is called to trial, he
appears but he is not ready and so he postpones. The next
hearing, he postpones again. That’s one interpretation.
Another interpretation of “failure to prosecute” the complaint is
filed, answer if filed, the case has not been set for pre-trial, the
plaintiff did not take the initiative to have the case set for pre-
trial. For more than one year, the case has not been set for pre-
trial and the plaintiff is not moving.
Or, the case cannot be tried because the defendant cannot be
summoned. The court keeps asking the plaintiff for the correct
address of the defendant. And for more than one year, the
plaintiff cannot supply the court of the correct address of the
defendant. The judge cannot have the case docketed in court
forever.
Third Ground: FAILURE TO COMPLY WITH THE RULES OF
COURT OR ANY ORDER OF THE COURT.
EXAMPLE: The court says, “Plaintiff, you are hereby directed to
amend the complaint.” Plaintiff refuses to amend. The court will
dismiss the case.
Remember that case I cited where the complaint was filed in the
name of for example, “PANINGKAMOT STORE vs. SO and SO.”
The SC said that PANINGKAMOT STORE cannot be the
plaintiff; it is not a person. It is only the name of the business
establishment. Only natural person or juridical persons may be
subject of the suit.
Sabi naman ng SC, but do not dismiss. Give the plaintiff a
chance to amend in order to reflect the owner of the store. So
the court directs the plaintiff to amend. Ayaw mo i-amend ha?
This time i-dismiss ko for failure to comply with the court’s
order.
Other Examples: Amend the pleading, submit a bill of
particulars or certification of non-forum shopping.
Now, Section 3 says, “…may be dismissed upon motion of the
defendant or upon the court’s own motion (motu propio).”
Dismissal generally upon motion; exceptions
Q: As a general rule, can a court dismiss a complaint
without any motion made by the defendant?
A: GENERAL RULE: The court should not dismiss the case upon
its own initiative, because the grounds for dismissal are
waivable. If the defendant fails to move for dismissal, he is
waiving the defect.
Q: Give the EXCEPTIONS (When may the court dismiss the
complaint motu propio?).
A: The following:
1) Section 3, Rule 17 (Plaintiff’s fault);
2) When on its face, the complaint shows that the court
has no jurisdiction over the subject matter;
3) When there is litis pendentia; or res adjudicata; or
when the action has prescribed;
4) Under the Summary Rules, the court is empowered to
dismiss immediately without any motion.
Effect of dismissal under Sec. 3 on the counterclaim
Take note of what the law says, if the complaint is dismissed
under Section 3, it is without prejudice to the right of the
defendant to prosecute his counterclaim in the same or
separate action. Again, the dismissal of the main action or
complaint does not mean the dismissal of the counterclaim.
This is the same with Section 2.
Read Pinga vs. Heirs of Santiago GR 170354, June 30, 2006.
Dismissal is adjudication upon the merits
Q: If the complaint is dismissed under Section 3, can it still
be refiled?
A: NO, the dismissal this time shall have the effect of
adjudication upon the merits. Meaning, res adjudicata applies,
as if the case has already been decided. Therefore the elements
of res adjudicata should also be present. The dismissal is with
prejudice unless otherwise declared by the court.
GENERAL RULE: Dismissal due to the fault of the plaintiff court dismissed the case. Can the case be re-filed? NO, the
is with prejudice. dismissal is with prejudice. (General Rule)

EXCEPTION: Unless the court provides otherwise or if the Suppose the court will say, “For non-appearance of the plaintiff,
court has not yet acquired jurisdiction over the person of the the complaint is dismissed without prejudice.” Can the case be
defendant. (Herrera vol. 1 p. 798) refiled? YES. (Exception)

EXAMPLE: When the case was called for trial, plaintiff did not On the other hand, one of the interesting cases on this (the
appear. Defendant moved to dismiss under Section 3. The effect of res adjudicata – because when we say res adjudicata, it
had to
be correlated with the elements of res adjudicata in Rule 39) is the case of

REPUBLIC PLANTERS BANK (RBP) vs. MOLINA – 166 SCRA 39

[1988]

FACTS: The RPB filed a case against the defendant for a sum of money. Defendant
cannot be summoned because his whereabouts is now unknown. Several attempts
made by the plaintiff to look for
him failed. After a while the court dismissed the complaint for

RBP’s failure to prosecute. And the order of dismissal was silent.

So, following Section 3, the dismissal is with prejudice.

Then later on, the plaintiff (RPB) discovered the whereabouts of the defendant. The
RPB re-filed the complaint. Defendant moved to dismiss because when the first
complaint was dismissed and the order of dismissal was silent then the dismissal has
the effect of an adjudication on the merits.

HELD: Since We are talking of res adjudicata, let us correlate it with the elements of
res adjudicata under Rule 39. One of the elements of res adjudicata is: When the case
is terminated, the court has jurisdiction over the case both as to the person and the
subject
matter;

In the case of RPB, the court never acquired jurisdiction over the
person of the defendant because he was never served with

summons. Therefore, such dismissal did not have the effect of res adjudicata.

Meaning, Section 3 presupposes that the court acquired jurisdiction

over the subject matter of the case, and the parties in the previous case in order that the
dismissal be with prejudice.

Sec. 4. Dismissal of counterclaim, cross-claim,

or third-party complaint. The provisions of
this Rule shall apply to the dismissal of any
counterclaim, cross-claim, or third-party
complaint. A voluntary dismissal by the
claimant by notice as in section 1 of this Rule,
shall be made before a responsive pleading or a motion for summary
judgment is served
or, if there is none, before the introduction of evidence at the trial
or hearing. (4a)

It means that the rules apply to dismissal of cross-claim,

counterclaim, or third-party complaint – at any time before an answer is filed against a

counterclaim, cross-claim or third-party complaint, plaintiff may dismiss his claim
under Section 1, Rule 17.

A dismissal or discontinuance of an action operates to annul orders, rulings or judgments

previously made in the case, as well as all proceedings had in connection therewith and
renders all pleading ineffective. (Servicewide Specialist, Inc. vs. CA GR No. 110597, May
8, 1996)

Rule 18 Pre-trial is mandatory in civil cases (Sec. 2; Interlining

PRE-TRIAL
Pre-trial is a mandatory conference and personal confrontation
before the judge between the parties and their respective counsel.
Corporation vs. Philippine Trust Company 378 SCRA 521; Tiu
vs. Middleton 310 SCRA 580). It is a procedural device held
prior to the trial for the court to consider the purposes
enumerated in Section 2.
It is mandatory for the trial court to conduct pre-trial in civil cases
in order to realize the paramount objective of simplifying,
abbreviating, and expediting trial. In light of these objectives, the
parties are mandatorily required to submit their respective pre-
trial briefs. Failure of the parties to do so is a ground for
dismissal of the action with prejudice, unless otherwise ordered
by the court. (Dr. Emmanuel Vera vs. Ernesto F. Rigor and CA,
GR No. 147377, August 10, 2007)
In all criminal cases cognizable by the Sandiganbayan, First
Level and Second Level courts,pre-trial is also mandatory (Sec.
1 R 118).
A pre-trial conference is likewise mandatory in both civil and
criminal cases under the Rules on Summary Procedure (Sec. 7,
Sec. 14, 1991 Rule on Summary Procedure).
Referral to the Philippine Mediation Center
At the start of the preliminary conference, the judge is
mandated to refer the parties and/or their counsels to the
mediation unit of the Philippine Mediation Center (PMC) for
purposes of mediation. If mediation fails, the judge will schedule
the continuance of the preliminary conference. This rule applies
to Metro Manila, Cebu, Davao City and other places where
Philippine Mediation Center Units may be further organized and
designated (Administrative Circular No. 20–2002, March 24,
2002; Administrative Circular No. 50-2005, April 26, 2005).
How is pre-trial called?
Section 1. When conducted. After the last
pleading has been served and filed, it shall
be the duty of the plaintiff to promptly
move ex parte that the case be set for pre-
trial. (5a, R20)
In civil actions, after the last pleading has been filed (Reply or
Answer) the plaintiff is duty bound to move promptly and ex
parte that the case be set for pre-trial.
The ex-parte motion to set case for pre-trial is to be made by the
plaintiff after the last pleading that has been served and filed
(Sec. 1). Specifically, the motion is to be filed within five (5) days
after the last pleading joining the issues has been served and
filed (Administrative Circular No. 3-99, January 15, 1999). If the
plaintiff fails to file said motion within the given period, the
branch clerk of court shall issue a notice of pre-trial (A.M. No.
03-1-09-SC, July 13, 2004).
Meaning of “last pleading”
The last permissible pleading that a party can file is the reply to
the answer to the last pleading asserting a claim. The claim
could be the original complaint, the counterclaim, the cross-
claim or the 3rd Party Complaint. If an answer is filed and served
in response to these claims, the pleading in response to these
answers is the reply (Sarmiento vs. Juan 120 SCRA 403) which
is to be filed within 10 days from the service of the pleading
responded to (Sec. 6 R 11).
When the last pleading has not yet been served and filed, the
case is not yet ready for pre-trial (Pioneer Insurance & Surety
Corporation v. Hontanosas 78 SCRA 439). However, the “last
pleading” need not be literally construed as one having been
served and filed. For purposes of the pre-trial, the expiration of
the period for filing the last pleading without it having been
served and filed is sufficient (Sarmiento v. Juan, supra).
Sec. 2. Nature and purpose. The pre-trial is mandatory.
The court shall consider:
(a) The possibility of an amicable settlement or of a
submission to alternative modes of dispute
resolution;
(b) The simplification of the issues;
(c) The necessity or desirability of amendments to the
pleadings;
(d) The possibility of obtaining stipulations or
admissions of facts and of documents to avoid
unnecessary proof;
(e) The limitation of the number of witnesses;
(f) The advisability of a preliminary reference of
issues to a commissioner;
(g) The propriety of rendering judgment on the
pleadings, or summary judgment, or of dismissing
the action
should a valid ground therefore be found to exist;
(h) The advisability or necessity of suspending the
proceedings; and
(i) Such other matters as may aid in the prompt
disposition of the action. (1a, R20)
(a) THE POSSIBILITY OF AN AMICABLE SETTLEMENT
OR OF
A SUBMISSION TO ALTERNATIVE MODES OF DISPUTE
RESOLUTION
Remember that the policy of the law in civil cases is settlement
to save time and expense.
There was an article where it says that one of the best gauge of
a good lawyer is not that he has many cases, but that he knows
how to settle a case because he saves his client from a lot of
trouble.
While a bad lawyer is one whose cases always end up in trial –
he has many cases and he does not have the time anymore to
study each cases. So, he ends up inefficient.
As a matter of fact, even Abraham Lincoln who was a lawyer
and became one of the best presidents of the United State, gave
an advice to lawyers: “Discourage litigation. Persuade your
neighbors to compromise whenever you can. Point out to them
how the nominal winner is often a real loser in fees, expenses
and waste of time. As a peacemaker, the lawyer has a superior
opportunity of being a good man there will still be business
enough.” Meaning, if you are a lawyer, you have a strong
influence to convince your client to settle the problem with his
opponent. You do not have to worry about losing fees for there
are still cases to come. Even if you will come out the winner in
the case, you are still the loser in terms of waste of time, money
and effort.
“…of a submission to alternative modes of dispute resolution.” –
how to dispose of the case without passing to court, ba. This is
similar to voluntary arbitration in the Labor Code – mas
mabilis!. Kung sa court yan, matatagalan pa yan. Example is a
controversy in the construction industry. Pagawa ka ng
building. You quarrel with your contractor whether the building
is properly constructed or not. That kind of dispute has to pass
through arbitration like contractors. They will be the one to
judge because they are experts in construction. So it is faster.
Anong malay ng judges sa engineering? So, yan ang tinatawag
na alternative modes of dispute resolution.
Now, assuming that the parties cannot settle at the pre-trial
stage, does it mean to say that the pre-trial was a failure? NO,
go to [b] to [i] on other ways to hasten the trial.
(b) THE SIMPLIFICATION OF THE ISSUES
Based on the answers filed, issue will be simplified or
lessened/reduced to the most important and relevant ones.
(c) THE NECESSITY OR DESIRABILITY OF
AMENDING THE PLEADINGS;
Take note that there is already a complaint and answer and yet
during the pre-trial, the parties can still amend their complaint
or answer. That means that amendments of pleadings are
favored even at this stage. Amendment is necessary which is
favored by the liberality principle, to adjudicate the case upon
proper merits.
INSURANCE CO. OF NORTH AMERICA vs. REPUBLIC – 21
SCRA 887
BAR PROBLEM: Suppose A sued B. After pre-trial, it was
determined that there was a necessity for amending the
complaint. It was amended. Is there a need for a new pre-
trial for the amended complaint?
ANS: Where a pre-trial has already been had, the fact that an
amended complaint is filed, does not mean the need for a new
pretrial. Pre-trial is not mandatory. Exception to this is when
the parties agree to conduct another pre-trial.
(d) STIPULATION OF FACTS
Stipulation of facts means we can agree on some facts and there
is no need of proving them in court because we already agreed.
Such will hasten the trial because matters validly agreed upon
can be dispensed with (e.g., size of the land, improvements
thereon, stipulations, due execution of documents, etc.)
Now, while the law encourages stipulation of facts, courts
cannot compel the parties to do stipulate facts under the threat
of dismissal. In the 1988 case of:
FILOIL MARKETING CORP. vs. DY PAC & CO – 160 SCRA
333
HELD: There is no law which compulsorily requires litigants to
stipulate at pre-trial on the facts and issues that may possibly
crop up in a particular case, upon pain of dismissal of such
case. The process of securing admissions whether of facts or
evidence is essentially voluntary, since stipulations of facts, like
contracts, bind the parties thereto who are not allowed to
controvert statements made therein.
When the parties are unable to arrive at a stipulation of
agreed facts, the court must close the pre-trial and proceed
with the trial of the case.
(e) THE LIMITATION OF THE NUMBER
OF WITNESSES;
During the pre-trial if there is no settlement, the court will ask,
“Mr. Plaintiff, how many witnesses will you present?” The
plaintiff will say that he will present one hundred witnesses. So
the court will start asking, “Why so many? Will it be possible to
limit the number of witnesses from 100 to 15 or 10? Anyway,
what one witness will say will just be the same as what the
other witness will say.”
That is allowed and that is part of the pre-trial because it will be
shortened if the number of witnesses will be reduced in
number.
(f) THE ADVISABILITY OF A
PRELIMINARY REFERENCE OF
ISSUES TO A COMMISSIONER;
This refer to Rule 32 the title of which is “Trial by
Commissioners.” A commissioner is a person who may be
appointed by a judge to assist the court in determining certain
issues.
EXAMPLE: Two people dealing with each other ended up suing
each other because according to plaintiff, “You secured these
amounts from me and ito lang ang binayad mo. So, may utang
ka pa.” But defendant said, “No, no, no! Based on my record,
overpaid pa ako.” That can happen where there has be
confusion already on the invoices and receipts. Now, if we will
try this case in court it will take time because you have to
present to the judge every receipt, every invoice. And these
invoices may number by hundreds. And what is worse is that
the judge is not an accountant so he will have a hard time
reconciling these receipts and invoices.
Suppose the judge will say, “Alright, since this is a matter of
accounting, I will appoint a CPA to assist me. You can choose
whoever this accountant or he may be appointed by this court.
Then you go to him and present all your documents. And then
he will now analyze and then submit to me his findings. Based
on his findings we will find out whether the defendant still owes
the plaintiff or there is no more utang.”
That is what you call, reference of issues to a commissioner.
That will shorten the proceedings because if the judge will go
over the documents one by one it will take time.
EXAMPLE: A boundary dispute between two neighboring
landowners. Plaintiff says, “Your fence has already encroached
on my property.” Defendant answers, “No, no, no. This is the
boundary.” So bakbakan na naman kayo. The court will ask,”
Is it true you encroached on his property?” How will the court
know that? I think that is very technical. It is a geodetic
engineer surveyor to resolve the issue. He will plot the
measurement and then he will submit a sketch. Then we will
find out if there is an encroachment or not.
As far as the judge is concerned, he does not know anything
about description of the land, he is not a surveyor, not a
geodetic engineer. So it will be faster if a geodetic engineer
surveyor will be appointed. What do you call this surveyor? He
is a commissioner.
(g) THE PROPRIETY OF RENDERING JUDGMENT ON THE
PLEADINGS, OR SUMMARY JUDGMENT, OR OF DISMISSING
THE
ACTION SHOULD A VALID GROUND THEREFORE BE
FOUND TO
EXIST;
Q: What do you mean by judgment on the pleadings? What do
you mean by summary judgment?
A: That was already mentioned under Rule 17, Section 1. But
we will not take them up because they will be taken up when we
reach Rule 34 and 35. Judgment on the pleadings or summary
judgment are remedies or procedure devised under the Rules of
court for the speedy determination of a civil case. It is one way
of speedily terminating a civil case.
The court, during a pre-trial, is authorized to render a judgment
on the pleadings or a summary judgment if there is a ground. In
the same manner, the court may order the dismissal of the
action should a valid ground therefor be found to exist because
it is possible that based on the complaint, there is no ground to
dismiss but in the course of pre-trial, the plaintiff may admit
something which turns out to be a ground for dismissal.
EXAMPLE: According to the plaintiff, the defendant borrowed
money from him three years ago and did not pay. But during
the pre-trial, defendant said, “Actually, judge, hindi man yan
three years ago. That was thirty years ago!” Plaintiff answered,
“Actually, judge, totoo yan.” So judge said, “My golly, the action
has prescribed so I will order the dismissal.” These things can
come out in the pre-trial.
(h) THE ADVISABILITY OR NECESSITY OF SUSPENDING THE
PROCEEDINGS;
This means that the case will be suspended, nothing will
happen in the meantime. Hindi naman dismissed. The case
will just be held in abeyance.
EXAMPLE: Suppose the parties will say, “Judge, so far we
cannot settle. But maybe if you will give us one or two months
we will be able to come up with a solution. We will meet once
every three days para mag-istorya.” I think that is a good
ground. In other words, pwede pa silang mag-areglo, o sige!
Because the law encourages amicable settlement.
Q: Is there a provision in the Rules on the suspension of
proceedings in relation to what we are talking about now? What
are the possible grounds for suspending the proceedings in a
civil case?
A: Rule 20, Section 8 on suspension of actions.
Sec. 8. Suspension of actions. - The
suspension of actions shall be governed by
the provisions of the Civil Code. (n)
Actually, Section 8 points to Article 2030 of the New Civil Code:
Art. 2030. Every civil action or proceeding
shall be suspended:
1. If willingness to discuss a possible
compromise is expressed by one or
both parties; or
2. If it appears that one of the parties,
before the commencement of the
action or proceeding, offered to
discuss a possible compromise but
the other party refused the offer.
The duration and terms of the suspension
of the civil action or proceeding and
similar matters shall be governed by such
provisions of the rules of court as the
Supreme Court shall promulgate. Said
rules of court shall likewise provide for the
appointment and duties of amicable
compounders.
So a civil action may be suspended if at any time one of the
parties offered to discuss a possible compromise because the
policy of the law is to have civil cases settled between the parties
amicably. Let the parties talk among themselves to come up
with the possibility of amicable settlement even if one of the
parties refuse to accept such an offer.
(i) SUCH OTHER MATTERS AS MAY AID IN THE PROMPT
DISPOSITION OF THE ACTION.
That is very broad – any other matter which will hasten the
case. Anything under the sun can fall under this.
PURPOSE OF A PRE-TRIAL
A review of Section 2 will show that the primary purpose of a
pretrial is how to end the case immediately because of
amicable settlement. If the parties can settle, then there is no
need to proceed to trial. But if for valid or serious reason they
cannot settle, because the court can only encourage and not
force a settlement, then they shall proceed with the pre-trial to
find out if we can have the case tried speedily and decided
immediately by talking about other things like amending the
pleadings, stipulation of facts, admission of documents to avoid
unnecessary proofs, limitation in the number of witnesses. So if
we cannot settle, we can talk of other things to speedily
terminate the case. Instead of trying the case for two years, we
can probably finish in six months.
DEVELOPMENT BANK vs. CA – 169 SCRA 409
NOTE: This case penned by Justice Narvasa, is practically all
about pre-trial. It is actually the bible on pre-trial. And this is
what exactly Justice Narvasa said:
HELD: “Everyone knows that a pre-trial in civil actions is
mandatory, and has been so since January 1, 1964 (effectivity
of the Revised Rules of Court). Yet to this day its place in the
scheme of things is not fully appreciated, and it receives but
perfunctory treatment in many courts [Meaning, it is only
complied with for the sake of compliance.] Some courts consider
it a mere technicality, serving no useful purpose save perhaps,
occasionally to furnish ground for non-suiting the plaintiff, or
declaring a defendant in default, or, wistfully, to bring about a
compromise. The pre-trial device is not thus put to full use.
Hence it has failed in the main to accomplish the chief objective
for it: the simplification, abbreviation and expedition of the trial,
if not indeed its dispensation. This is a great pity, because the
objective is attainable, and with not much difficulty, if the
device were more intelligently and extensively handled.”
The Supreme Court noted the inability of trial judges to properly
apply and appreciate the value of Rule 18.
Sec. 3. Notice of pre-trial. The notice of
pretrial shall be served on counsel, or on
the party who has no counsel. The counsel
served with such notice is charged with
the duty of notifying the party
represented by him. (n)
This is in compliance with Rule 13. Notice should be served on
counsel or to the party who has no counsel. Under the PRIOR
RULE, the procedure was, there must be notice to lawyer and
notice to the party but NOW, to simplify the job of the court
processor, the rule is, notice to the counsel is now notice to the
party.
Notice is so important that it would be grave abuse of discretion
for the court for example, to allow the plaintiff to present his
evidence ex parte for failure of the defendant to appear before
the pre-trial who did not receive through his counsel a notice of
pre-trial. Accordingly, there is no legal basis for a court to
consider a party notified of the pre-trial and to consider that
there is no longer a need to send notice of pre-trial merely
because it was his counsel who suggested the date of pre-trial
(Agulto v. Tecson 476 SCRA 395)
ARCILLA vs. ARCILLA – 138 SCRA 560
FACTS: There was a pre-trial conference on July 29, where all
the parties are notified through their lawyers pursuant to
Section 3. They appeared but somehow the pre-trial was
terminated on July 29. The court decided to reset the pre-trial
on Oct. 2. The parties agreed. Normally, the procedure is,
when that happens, there will be another written notice. There
should be another written notice sent to the lawyers and
parties.
In this case, no such written notice was issued. On Oct. 2, the
defendant did not appear. With that, he was declared to have
lost his rights to present his side. He was considered in default.
He questioned the order on the ground that he did not receive
any notice on the Oct. 2 pre-trial conference. Therefore, all
subsequent proceedings, including the judgment rendered
against the defendant were void. Is he correct?
HELD: “At first blush, petitioner’s aforesaid contention appears
very tenable, for indeed it is settled that a declaration of default,
in the absence of a notice of pre-trial constitutes denial of due
process. But a deeper examination of the pleadings and the
record of the case would show that petitioner was present
during the pre trial conference on July 29, 1975 when the lower
court re-set the pre-trial to October 2, 1975. On the said date,
however, although notified, both petitioner and his counsel did
not appear, hence, the declaration of default.”
So when the lower court reset the pre-trial on Oct. 2, the
defendant although ratified VERBALLY earlier, he failed to
appear that is why he was penalized under Section 5. When the
court reset the pre-trial, he agreed. He already knew.
Notification need not be too technical. Despite the lack of a
written notice, the defendant was penalized in the ARCILLA
case.
Under the present rules the court cannot declare anymore an
answering defendant in default if he fails to appear during the
pretrial conference despite due notice. The consequence of such
nonappearance is that the plaintiff will be allowed to present ex-
parte.
Sec. 4. Appearance of parties. It shall be the
duty of the parties and their counsel to
appear at the pre-trial. The non-appearance
of a party may be excused only if a valid
cause is shown therefor or if a will represent the corporation. So, the manager for example,
representative shall appear in his behalf
fully authorized in writing to enter into an
amicable settlement, to submit to
alternative modes of dispute resolution,
and to enter into stipulations or
admissions of facts and of documents. (n)
There must be notice of pre-trial which will be
issued after you comply with Section 1. Then
there will be a schedule. The notice will be
served upon the counsel or upon a party,
assuming that he is not represented by a
lawyer. The counsel served with such notice is
charged with the duty of notifying the party
represented by him. Appearance of parties
and counsel:
And under Section 4, it shall be the duty of both the parties and
their counsel to appear at the trial. Meaning, the appearance of
the lawyer alone unless he is duly clothed with pre-trial
authority from his client.
Section 3 says “a counsel served with such notice is charged
with the duty of notifying the party represented by him.” That
is new provision. The OLD LAW is, based on decided cases,
aside from notice to the lawyer, there must be another notice to
the party. So if you notify the lawyer but you did not send a
separate notice to the party and therefore the party did not
appear, you cannot take it against him. Under Rule 13, notice
to lawyer is notice to party, except in pre-trial, sabi ng SC. That
is the old jurisprudence – OBSOLETE!
But the PRESENT RULE is: Notice to lawyer is notice to
party.
Q: Is it possible for a party who will not appear at a pre-trial
but his appearance is not necessary?
A: YES, Section 4, if a valid cause is shown like, he got sick. Or, if
a representative shall appear in his behalf duly authorized in
writing to enter into an amicable settlement, to submit to
alternative modes of dispute resolution, etc.
Meaning, you can delegate somebody who has a written
authority. Sometimes it is the lawyer who is given the Power of
Attorney authorizing him to enter into an amicable settlement.
Otherwise, you will see in the next section what is the effect if
you fail to appear in a pre-trial.
Q: Suppose one of the parties in the case is a CORPORATION. A
corporation cannot appear because it has no physical existence.
Who is authorized to appear in a pre-trial in order to enter into
an amicable settlement? Are the managers or vice-president,
authorized to appear in a pre-trial in behalf of the bank which is
a party to the case?
A: NO! Even the president or the chairman of the board has no
power.
Q: Who can bind a Corporation?
A: Only the Board of Directors has the authority to bind a
corporation.
Q: If there will be a pre-trial of a case involving one of the banks
in Manila but the case is in Davao, am I saying that everytime
there is a pre-trial all the members of the Board will fly to Davao
to attend the pre-trial and pass a resolution inside the
courtroom?
A: No. The Board can pass a resolution naming the person who
can appear in the pre-trial provided he is authorized through a
board resolution.
Again, the RULE is: Both the lawyer and the party should
appear in the pre-trial because the first purpose of pre-trial is
the possibility of an amicable settlement and the lawyer alone
has no authority to enter into an amicable settlement.
Non- appearance of counsel or a party may be EXCUSED
only if:
1) a valid cause is shown therefor and
 2) A representative shall appear in his behalf fully authorized
in writing (e.g. SPA) to:
a. enter into an amicable settlement;
b. submit to alternative modes of dispute resolution; and
c. enter into stipulations or admissions of facts and of
documents.
Note: written authority must be in the form of a Special Power
of Attorney. If the party is a corporation the SPA must be
supported by a board resolution (Riano, 2007, p. 306)
Note: The mere presentation of such written authroity is not
sufficient, but must be complemented by a showing of valid
cause for the non-appearance of the party himsel.
Q: If it is a corporation, what is that authority?
A: It is a board resolution because only the board of directors
has the authority to bind the corporation.
EFFECTS OF FAILURE TO APPEAR IN PRE-TRIAL
Sec. 5. Effect of failure to appear. The failure
of the plaintiff to appear when so required
pursuant to the next preceding section
shall be cause for dismissal of the action.
The dismissal shall be with prejudice,
unless otherwise ordered by the court. A
similar failure on the part of the defendant
shall be cause to allow the plaintiff to
present his evidence ex parte and the
court to render judgment on the basis
thereof. (2a, R20)
Q: What happens if it is the plaintiff who failed to appear in
the pre-trial?
If the PLAINTIFF fails to appear, his case will be dismissed for
not appearing. And as a rule, the dismissal is with prejudice
except when the court orders otherwise. It has the same effect
as Rule 17, Section 3: Failure to appear during the trial for the
presentation of his evidence-in-chief. So, if the plaintiff fails to
appear during the trial when it is his turn to present his
evidence, under Rule 17, his case shall be dismissed and
generally the dismissal is with prejudice, or an adjudication
upon the merits. (Res Adjudicata applies).
The old rule was that the plaintiff will be declared non- suited.
NOW, it shall be a cause for dismissal of the action.
Q: Is there any difference between non-suited and dismissal of
action?
A: There is suppose to be a difference based on the case of
BA FINANCE CORP. vs. COURT OF APPEALS – 224 SCRA
163
[OBSOLETE!]
HELD: When the defendant moves to dismiss the case, then
you are also killing your counterclaim. If you are, the
defendant you should not move for the dismissal. You only
move to declare the plaintiff as non-suited because when
the plaintiff is non-suited, he is bared from proving his
cause of action but the case is not dismissed. Since the
case is not dismissed, it is like the plaintiff who is in
default.
It does not anymore apply because now, you can have the case
dismissed but your counterclaim is still alive. So, the ruling in
BA FINANCE CORP. is now OBSOLETE.
What is the remedy of the plaintiff in case of dismissal for
his failure to appear?
Since the dismissal is with prejudice or an adjudication upon the
merits of the case, the remedy of the plaintiff is to appeal from
the order of dismissal. An order dismissing an action with
prejudice is appealable. Under the rules, it is only when the
dismissal is without prejudice that appeal cannot be availed of
(Sec. 1[g] R 41). Since appeal is available, certiorari is not the
remedy because the application of a petition for certiorari under
Rule 65 of the Rules is conditioned upon the absence of appeal
or any plain, speedy and adequate remedy (Sec. 1 R 65).
Effect of failure of the defendant to appear
Q: What happens if it is the defendant who failed to appear in
the pre-trial?
A: If it is the DEFENDANT who failed to appear, the law says, it
shall be a cause to allow the plaintiff to present his evidence ex-
parte and for the court to render judgment on the basis thereof.
You will notice that if it is the defendant who failed to appear
under the old law, he will be considered as in default. NOW, the
word ‘default’ is avoided. The non-appearance of defendant
during the pre-trial is not a ground to declare him in default.
Instead the rule says, “it shall be a cause to allow the plaintiff to
present his evidence ex parte and the court to render judgment
on the basis thereof.” That is the same effect as the old rule.
Q: Why is the new rules avoiding the word ‘default’?
A: Because, strictly you cannot really have the defendant
declared in default when he has filed an answer.
Q: Defendant failed to appear in the pre-trial. Plaintiff was
allowed to present his evidence ex parte. Now, what is the
REMEDY of the defendant? Because if you look at Rule 9 on
default, the proper motion for the defendant in default is to file
a motion to lift the order of default on the ground of F.A.M.E.
and that he has a meritorious defense. Is that also the remedy
for the defendant who failed to appear in the pre-trial? A: NO,
that is the case of
JUNGCO vs. CA – 179 SCRA 213 [1989]
HELD: Under Rule 9 on default, if you are declared in default,
you only file a motion to lift the order of default and you have to
allege that you have a meritorious defense. But in Rule 18, when
you file a motion, it is a simply a motion for reconsideration
where you will state the reason why you failed to appear and
ask that the order be reconsidered and that the judgment be set
aside.
Under Rule 18, there is no use to say that you have a
meritorious because you have already filed an answer. The
defense is already there. Unlike in defaulted defendant, the
court has no idea what is your answer kaya nga you must
convince the court that you have a meritorious defense.
So a simple MOTION FOR RECONSIDERATION is sufficient.
Appeal not available
The order of the court allowing the plaintiff to present evidence
exparte does not dispose of the case with finality. The order is
therefore, merely interlocutory hence, not appealable. Under
Sec. 1© of Rule 41, no appeal may be taken from an
interlocutory order. The defendant who feels aggrieved by the
order may move for the reconsideration of the order and if the
denial is tainted with grave abuse of discretion, he may file a
petition for certiorari.
Q: Assuming that the plaintiff is already presenting evidence,
and the defendant filed a motion for reconsideration. The court
reconsidered and recalled the plaintiff’s ex-parte presentation of
evidence. Do they have to go back to pre-trial.
A: GENERAL RULE: NO. (DBP vs. CA, 169 SCRA 409)
EXCEPTION: YOUNG vs. CA, 204 SCRA 584
General Rule: DEVELOPMENT BANK vs. CA – 169 SCRA 409
[1989]
HELD: When a pre-trial is terminated, you do not go back to
it. The court shall let the plaintiff continue and just let the
defendant cross-examine the plaintiff’s witnesses. As a
general rule a second pre-trial cannot be granted, the
remedy instead is to go to trial.
Exception: YOUNG vs. COURT OF APPEALS – 204 SCRA 584
[1991]
HELD: “The pre-trial stage is completed after a party had
been ordered non-suited and the complaint is dismissed or
after the court allows the plaintiff to present his evidence
ex-parte. The order lifting it does not revert the action to its
pre-trial stage, or authorize, much less, a second pre-trial
UNLESS the parties themselves had voluntarily agreed that
the case be set anew for pre-trial. Neither the Rules nor the
doctrine bars the parties from agreeing, after such lifting, to
hold a pre-trial and to effectively accomplish its objectives.”
PRE-TRIAL BRIEF
Sec. 6. Pre-trial brief. The parties shall file
with the court and serve on the adverse
party, in such manner as shall ensure their
receipt thereof at least three (3) days
before the date of the pre-trial, their
respective pretrial briefs which shall
contain, among others:
(a) A statement of their willingness to
enter into amicable settlement or
alternative modes of dispute
resolution, indicating the desired
terms thereof;
(b) A summary of admitted facts and
proposed stipulation of facts;
(c) The issues to be tried or resolved;
(d) The documents or
exhibits to be
presented, stating the purpose thereof;
(e) A manifestation of their having
availed or their intention to avail
themselves of discovery procedures or
referral to commissioners; and
(f) The number and names of the
witnesses, and the substance of their
respective testimonies.
Failure to file the pre-trial brief shall have the
same effect as failure to appear at the pre-
trial. (n)
This is a new provision not found in the 1964 Rules. However,
the requirement of a pre-trial brief is not new because this was
a requirement in SC Circular No. 1-89 which was issued on
January 19, 1989. The submission of pre-trial briefs by lawyers
has been required by that Circular. This circular is now
incorporated.
Take note that at least three (3) days before the date of pre-trial
the parties’ lawyers should file pre-trial briefs to be furnished
with each other. In that brief, you summarize everything
covered by your pleadings. It contains cause of action,
defenses, etc. The court, instead of reading the pleadings and
answer, only the document where you condensed everything will
be read. It contains: Cause of action; defenses; issued to be
tried; admitted facts; facts you believe should be stipulated; the
documents or exhibits you would like to present; or who are the
witnesses and what are they going to testify, etc. That’s a
summary of everything that is going to happen from the
beginning of the trial up to the end.
Importance of identification and marking of evidence
It is vital to have documents and exhibits identified and marked
during the pre-trial. The current rule establishes the policy that
no evidence shall be presented and offered during the trial in
support of a party’s evidence-in-chief other than those that had
been earlier identified and pre-marked during the pre-trial,
except if allowed by the court for good cause shown (A.M. No.
03-1-09-SC, July 13, 2004)
Legal effect of representations and statements in the pre-
trial brief
The parties are bound by the representations and statements in
their respective pre-trial briefs (A.M. 03-1-09-SC, July 13,
2004). Hence, such representations and statements are in the
nature of judicial admissions in relation to Sec. 4 R 129)
Effect of failure to file a pre-trial brief
Last paragraph, “Failure to file the pre-trial brief shall have the
same effect as failure to appear at the pre-trial conference.” So,
if it is the PLAINTIFF who failed to file a pre-trial brief, his
complaint may be ordered dismissed. If it is the DEFENDANT
who failed to file a pre-trial brief, that would be a cause for the
court to allow the plaintiff to present his evidence ex-parte.
The dismissal of the complaint for failure to file pre-trial brief is
discretionary on the part of the trial court (Ramos v. Spouses
Lavendia, GR 176706, October 8, 2008).
Q: Up to this point, let us try to summarize. What are the
instances where the PLAINTIFF may be penalized by the court
with a dismissal of his complaint?
A: In the following instances:
 1) Where plaintiff fails to appear during the presentation
of his evidence-in-chief to prove his cause of action
(Rule
17, Section 3);
2) Failure to appear in the pre-trial conference (Rule 18,
Section 5);
3) Failure to file a pre-trial brief (Rule 18, Section 6)
Q: On the other hand, when would the DEFENDANT be
penalized by the penalty that plaintiff be allowed to present his
evidence ex parte and judgment be rendered based purely on
such evidence?
A: In the following instances:
1) Failure to file an answer under Rule 9 on Default;
2) Failure to appear in a pre-trial conference (Rule 18,
Section 5);
3) Failure to file a pre-trial brief (Rule 18, Section 6)
No termination of pre-trial for failure to settle
The judge should not allow the termination of pre-trial simply
because of the manifestation of the parties that they cannot
settle the case. Instead, he should expose the parties to the
advantages of pre-trial. He must also be mindful that there are
important aspects of the pre-trial that ought to be taken up to
expedite the disposition of the case (A.M. No. 03-1-09-SC July
13, 2004).
If all efforts to settle fail, the trail judge shall endeavor to
achieve the other purposes of a pre-trial like, among others,
obtaining admissions or stipulations of fact. To obtain
admissions, the judge shall ask the parties to submit whatever
depositions have been taken under R 23 and the answers to
written interrogatories under R 25 and the answers to request
for admission by the adverse party under R 26. He may also
require the production of documents or things requested by a
party under R 27 and the results of the physical and mental
examination under R 28 (ibid).
Principles involved in Compromise Agreements
The authority to compromise a litigation is not mandatorily
required to be in writing. The vital thing is that the authority
was made expressly. The authority to compromise if not in
writing may be established by evidence.
Compromise agreements entered into without authority are not
void but unenforceable and may be ratified (Lim Pin vs Liao
Tan, GR No. L-47740, July 20, 1982)
The court shall ask the parties to agree on the specific dates for
continuous trial, adhere to the case flow chart determined by
the court and use the time frame for each stage in setting the
trial dates. Adherence to the One Day Examination of Witness
Rule shall be required where the witness shall be fully examined
in one day only, subject to the court’s discretion during the trial
on whether or not to extend the examination for justifiable
reasons. Where no settlement has been effected, the court shall
follow the Most Important Witness Rule, where the court shall
determine the most important witnesses and limit the number
of such witnesses and require the parties and/or counsels to
submit to the branch clerk of court the names, addresses and
contact numbers of the witnesses to be summoned by
subpoena. Note however, that the court may also refer the case
to a trial by commissioner under R 32 (ibid).
Questions are to be asked by the judge
During the pre-trial, the judge shall be the one to ask questions
on issues raised by the parties and all questions or comments
by counsel or parties must be directed to the judge to avoid
hostilities between the parties (ibid).
Sec. 7. Record of pre-trial. The proceedings
in the pre-trial shall be recorded. Upon the
termination thereof, the court shall issue
an order which shall recite in detail the
matters taken up in the conference, the
action taken thereon, the amendments
allowed to the pleadings, and the
agreements or admissions made by the
parties as to any of the matters
considered. Should the action proceed to
trial, the order shall explicitly define and
limit the issues to be tried. The contents
of the order shall control the subsequent
course of the action, unless modified
before trial to prevent manifest injustice.
(5a, R20)
A pre-trial conference although it is less formal than a trial,
that’s why in most cases, pre-trial is not done in open court but
inside the chamber of the judge where the atmosphere is more
relaxed because you are going to talk about settlement, eh.
However, do not believe that that is just a decoration. That is
an official proceeding. Everything there is recorded. According
to section 7, after a pre-trial conference is terminated, the court
will issue what is known as pre-trial order. That is now
expressly required by the rules.
Pre-Trial Order
This order of the court is issued upon the termination of the
pretrial. Under A.M. No. 03-109-SC dated July 13, 2004, the
pre-trial order shall be issued within ten (10) days after the
termination of the pre-trial. This order recites in detail the
following:
(a) A statement of the nature of the case;
(b) The matters taken up in the conference;
(c) the action taken thereon;
(d) the amendments allowed to the pleadings; and
(e) the agreements or admissions made by the parties as to
any of the matters considered (Sec. 7) including
testimonial and documentary evidence. These admissions
embodied in the pre-trial order are binding upon the
parties and conclusive upon them (Heirs of Conahap v.
Regana 458 SCRA 741).
(f) the issues involved, factual and legal; (g) number of
witnesses; and (h) the dates of trial.
Another important point to remember about the pre-trial order
is stated in the rule thus: “Should the action proceed to trial, the
order shall explicitly define and limit the issues to be tried.
The contents of the order shall control the subsequent
course of the action, unless modified before trial to prevent
manifest injustice.” The other exceptions are:
1. issues impliedly included in the issues stated or
inferable therefrom by necessary implication (Velasco vs.
Apostol, GR No. 44588, May 9, 1989) and 2. amendment to
conform to evidence under Rule 10 Sec.
5)
A party is deemed to have waived the delimitations in a
pre-trial order if he failed to object to the introduction of
evidence on an issue outside of the pre-trial order, as well
as in cross-examining the witness in regard to said
evidence.
It may be an ordinary sentence but the effect of that is
terrible.
Suppose here is the complaint and it is answered. Based on the
complaint and the answer, you can determine the issues based
on the admissions and denials in the answer. For instance,
there are five issues, they are to be stated in a pre-trial brief.
During the pretrial conference, the court may reject other issues
which are not important with the agreement of the parties.
Thus, there may be only one real issue like whether or not the
loan has been paid. The court may then issue a pre-trial order
containing such issue. The defendant may have also several
defenses in his answer. After the pre-trial order is issued, such
order should be followed. Forget the complaint and the answer.
In effect, the complaint and the answer has already been
superseded by the pre-trial order. This section in effect says
that the pre-trial order supersedes the pleadings.
That is why the case of DBP vs. CA, supra, where the Court
through Justice Narvasa, emphasized the importance of a pre-
trial. The Court noted that if there is a pre-trial order because
the judge followed Rule 18 religiously, during the trial the judge
will not have a hard time in determining what is the issue to be
resolved. And babasahin lang niya ay ang pre-trial order.
Everything is to be based there. Without the pre-trial order, you
will still have to look at the pleadings of both parties. The pre-
trial order is a very important piece of document.
There was a case years ago, Plaintiff vs. Defendant. Banggaan
ba. In a vehicular collision, the plaintiff is claiming damages
from the defendant. His allegations naturally would point out
that all fault and negligence is caused by the defendant. As
usual, when the defendant files his answer, he is denying that.
As a matter of fact, he will claim that the one negligent is the
plaintiff. Chances are, since his vehicle was also damaged, the
defendant will file a counterclaim. So, pasahan yan!
What happened in the pre-trial conference is that, the lawyers
were asked to define the issues. The plaintiff’s lawyer asked the
defendant’s lawyer to define the issues: “ (1.) Is the plaintiff
liable for actual damages on defendant’s counterclaim? (2.) Is
the plaintiff liable to the defendant on his counterclaim for
exemplary damages? (3.) Is plaintiff liable to the defendant on
his counterclaim for attorney’s fees and expenses for the
litigation?”
So, those were the issues. The plaintiff’s lawyer, siguro hindi
nakikinig ba. Judge asked, “O, do you agree panyeros?” Yes,
Okay. When the pre-trial order was issued, those issues were
contained. Where’s the defendant’s liability to the plaintiff? Wala
na! The issue is whether or not the plaintiff is liable to the
defendant. During the trial, the plaintiff presented his evidence
to prove the defendant’s liability. The defendant’s lawyer
objected on the ground that there was no issue contained in the
order on the liability of the defendant. The only issue is
whether plaintiff is liable to the defendant. Naisahan ang
plaintiff… akala kasi niya ang pre-trial order is not important.
by both the accused and counsel, otherwise, they cannot be used against the
accused (Sec. 2 R 118)
5. The sanctions for non-appearance in a PT are imposed upon the plaintiff and the defendant in a civil case (Sec. 4
R 18)
but in criminal cases, the sanctions are imposed upon the counsel for the
accused or the prosecutor (Sec. 3 R 118)
(Dean did not know how the case ended, but commented: “The
plaintiff asked for the amendment of the pre-trial order because
this is a manifest injustice. Plaintiff is the one suing and how
he is to be held liable. Now, if I were the judge, I will really
modify because it’s unfair no! You are the one suing and now
you end up as a defendant. But I will stress to the plaintiff na
huwag kang tatanga-tanga sa pre-trial! [gago!])
Now, an example of the last sentence of Section 7 – “UNLESS
modified before trial to prevent manifest injustice – is the case of
SESE vs. IAC (152 SCRA 585 [1987]) where even if the pre-trial
order does not recite the issue, it can still be proven. Under
Section 5 of Rule 10, even if an issue was not raised I n a pre-
trial order and no one objected to the issue raised, it can be
tried and later the pretrial order can be amended to conform
with issue/s raised.
Pre-Trial in civil and criminal cases compared:
1. The pre-trial in a civil case is set when the plaintiff
moves ex-parte to set the case for pre-trial (Sec. 1 R
18).
The PT in a criminal case is ordered by the court and
no motion to set case for pre-trial is required from
either party (Sec. R 118);
2. The motion to set case for PT in a civil case is made
after the last pleading has been served and filed
but in a criminal case, the PT is ordered by the court
after arraignment and within 30 days from the date
the court acquires jurisdiction over the person of the
accused;
3. The PT in a civil case considers the possibility of an
amicable settlement as an important objective (Sec. 2
R
18)
but in a criminal case it does not generally consider
such possibility as a purpose of PT (Sec. 1 R 118);
4. In a civil case, the agreements and admissions made
are not required to be signed by both the parties and
their counsels. Under the Rules, they are instead to be
contained in the record of PT and the PT order (Sec. 7
R. 18. However, A.M. No. 03-1-09-SC date July 13,
2004 now requires the [proceedings during the
preliminary conference to be recorded in the “Minutes
of Preliminary Conference” to be signed by both parties
and /or counsel. The rule allows either the party or his
counsel to sign the minutes.
In a criminal case, there is a stricter procedure
required. All agreements or admissions made or
entered during the PT conference shall be reduced in
writing and signed
 6. A PT brief is specifically required to be submitted in a civil case (Sec. 6) but not in a criminal case.

Preliminary Conference under the Revised Rules on Summary

Procedure

1) Under the said rules, a preliminary conference shall be held not later than 30
days after the last answer is filed. Here, the rules on PT in ordinary cases
shall apply except
when inconsistent with the rules on summary procedure
(Sec. 7, II);

2) The failure of the plaintiff to appear in the conference shall be cause for
dismissal of the complaint and the defendant who appears in the absence of
the plaintiff
shall be entitled to judgment on his counterclaim. All
cross-claims shall be
dismissed (ibid)

3) Within 5 days from the termination of the conference, the court shall issue an
order stating the matters taken
up in the conference (Sec. 8 II)

Outline

Pre- Trial

A. If no Settlement is reached

The court will issue an order indicating the agreements made by the parties; amendments
to the pleadings; schedule of trial.

Trial will then follow

B. If there is an amicable settlement, the court will render a

judgment based on said compromise agreement.

C. If there is failure to appear

1. If plaintiff is absent, when so required to attend, the court may dismiss the case.

2. If defendant is absent, the court may hear the evidence of the

plaintiff ex parte.

If evidence is insufficient to prove palintiff's cause of action or

defendant's counterclaim, the court rules in favor of either one or

dismisses the case.

KATARUNGANG PAMBARANGAY
For now, we will leave the rules on civil procedure. We will go to
another law which is also connected with the study on civil
procedure. This is the Barangay Conciliation Law. It is
appropriate to discuss what the law is all about because under
Rule 18 on pretrial, you will notice it has emphasized that the
primary purpose of a pre-trial is the possibility of amicable
settlement. That is usually encouraged. No case may reach the
trial stage without passing through the Pre-trial Rule. We have
to exhaust all avenues and settlement.
There is a law known as the BARANGAY CONCILIATION LAW
which mandate that before an action can be filed by an
individual complainant against another individual defendant,
both of them are residing in the same city or municipality, there
should be a prior attempt to conciliate in the barangay level –
under the rules, the barangay of the defendant. And if the action
if filed without observing that procedure, the action is
dismissible.
Suppose a case will be filed in court, according to the SC, the
plaintiff must allege in a complaint that before filing the case he
exerted or complied with the Baranagay Law. It is a condition
precedent. Normally, after you exhaust in the barangay level
but is not successful, the Barangay Chairman will issue a
certification to file an action. That should be stated in the
complaint.
According to the SC in the case of VDA. DE BORROMEO vs.
PUGOY (126 SCRA 217), the failure of a complaint to allege
compliance with the requirement of the barangay law is fatal. He
must make an allegation that before filing his complaint, he
complied with the barangay law. Otherwise, his complaint will
be ordered dismissed.
If the action is filed without observing that procedure, the action
is dismissible. But as clarified by the SC in many cases, among
them are EBOL vs. AMIN (125 SCRA 438)and GONZALES vs. CA
(151 SCRA 289) the defect is NOT JURISDICTIONAL. You do not
say the court has no jurisdiction.
The ground for dismissal is more on PREMATURITY OF THE
ACTION. You can cite the new ground now as “the condition
precedent required by law has not been observed.” Actually, it
will also affect the cause of action- Based on decided cases,
there must be an allegation in the complaint that before filing a
case, there has been an attempt to undergo a conciliation in the
barangay level.
Now, this law used to be the Katarungang Pambarangay Law,
PD 1508. However, it was superseded on January 1, 1992 by
RA 7160, otherwise known as the Local Government Code Of
1991 (LGC). The Barangay Conciliation requirement is now
embodied in RA 7160. The barangay requirement is found in
Sections 399-422 and also Section 515. It is around 25 sections
of the law.
To help you, the SC in 1993 issued Administrative Circular No.
1493 where the SC tried to condense the important
requirements of the law – who are covered and who are not. It is
addressed to all RTC and MTC judges. Subject: Guidelines on
the Katarungang Pambarangay conciliation Procedure to prevent
circumvention on the Revised Katarungang Pambarangay Law.
We will summarize the law and discuss some important
features. Under the law, you cannot file a case against
somebody without attempting to settle matters before the
barangay level.
SOME IMPORTANT FEATURES OF THE BARANGAY
CONCILIATION LAW:
The law applies only when you are suing somebody who resides
in the same city or municipality where you reside. Or in the
event of different municipalities, they are adjacent. So when two
towns are near each other, you are suing somebody there, the
law will apply. Generally, when you (from Davao City) sue
somebody from General Santos City, the law is inapplicable
because it is a different city.
The law will not apply if one of the parties in the dispute is a
juridical person – i.e. corporation. It only applies to suits
between natural persons.
Under the law, it is the barangay where the defendant resides
which is the venue for conciliation. If the dispute arose in a
workplace or in school, the venue is the barangay where the
workplace or the school is located.
Q: If I’m from Sasa and you are from Toril, but we are residing in
the same city, which barangay is the proper venue?
A: Under the law, it is the barangay where the defendant resides,
unless the dispute arose in a workplace or in school.
If the dispute refers to REAL property, it is where the property is
situated. If the dispute refers to Real Property (e.g. land), and
I’m from Matina, and you are from Sasa, but the case involves a
land in Toril, then the correct venue is the place where the land
is situated – i.e. the barangay in Toril.
When you say, both the parties reside in the same city or
municipality, what do you mean by RESIDENCE? The same
interpretation as laid down by the SC in
GARCES vs. CA – 162 SCRA 504
FACTS: Garces lives in Cavite but works in Malate. He rented an
apartment in Malate and stays there on weekends.
HELD: For purposes of the Barangay Law, Garces is a resident
of Malate. The word ‘RESIDES’ refers to actual or physical
residence, not domicile.
In the case of
BEJER vs. CA – 169 SCRA 566
FACTS: Andre lives in Laguna but has a house in Manila
where his children live.
ISSUE: Is Andre a residence of Manila?
HELD: NO, because Andre is not a registered in the
barangay as a voter. Physical presence alone is not
sufficient. So, the SC added another qualification, that
residence is determined by membership in the barangay.
Therefore, even if you are in that area but you are not a
member of the barangay, you are not a resident thereof.
This is because “the primary purpose of the law is to
provide the conciliation mechanism, as an alternative to
litigations in dispute settlement, to members of the
corresponding barangays who are actually residing therein.
Residence alone, without membership, in said barangays
would not be an accurate and reliable criterion, considering
that such residence may be actual but be merely
temporary, transient or categorized into other permutations
as in the case of a house guest or a sojourner on a visit of a
day or two.”
“On the other hand, mere membership in a barangay,
without actual residence therein, should not suffice since
absentee membership would not subserve the avowed
purpose of the law for lack of the common bond and sense
of belonging generally fostered in members of an identified
aggroupment.”
Q: Suppose the defendant will not show up everytime he is
called.
A: That is now a ground for the barangay captain to issue a
certificate to file an action. The defendant cannot complain later
that there is non-compliance of the barangay law. The defendant
cannot use his own default to profit it. That was the ruling in
SAN MIGUEL VILLAGE SCHOOL vs. PUNDOGAR (173 SCRA
704).
Take note that the barangay cannot decide. It can only convince
the party to settle. A barangay court has no power to make
decisions. But if you agree to something and in case you failed
to comply with your agreement, that can be enforced by the
barangay. But actually, the decision came from you, and not
from the barangay court.
There are other interesting cases under the Barangay Law. In
the
1989 case of
RAMOS vs. CA – 174 SCRA 690

FACTS: This case originated in barangay Lanang, Davao
City. The parties failed to agree before the barangay
captain. He tried to convince them to settle, but they
refused to settle. With that, the barangay captain issued a
certificate to file an action. So the case was filed in the RTC.
The defendant questioned the procedure.
HELD: The procedure is wrong. The case cannot be filed.
Under the Barangay Law which is now incorporated in 410-
d of the Local Government Code, the correct procedure for
this is, if the barangay captain cannot effect settlement, he
should throw the case to the Pangkat, the Lupon. If the
barangay captain cannot settle, the next step is the Lupong
Tagapamayapa. So, you cannot immediately issue a
certification to file action.
BUT the ruling in RAMOS seems to have been CHANGED
already in the light of the new Local Government Code. In the
1995 case of
DIU vs. CA – 251 SCRA 472 [1995]
FACTS: What happened here is exactly similar to what
happened to the case of RAMOS. When the barangay captain
could not effect a settlement, he issued certificate to file action.
That was questioned. It was not referred to the Lupon.
Therefore, it was premature, citing Section 410-d of the LGC.
HELD: The SC cited a new section in the LGC which is Section
412 which seems to give the barangay captain the authority to
issue a certificate without necessarily referring anymore to the
Lupon.
pangkat was formed, we believe that there was substantial
compliance with the law. It is noteworthy that under Section
412 of the Local Government Code, the confrontation before the
lupon chairman OR the pangkat is sufficient compliance with
the pre-condition for filing the case in court.”
“This is true notwithstanding the mandate of Section 410(b) of
the same law that the barangay chairman shall constitute a
pangkat if he fails in his mediation efforts. Section 410(b) should
be construed together with Section 412. On this score, it is
significant that the barangay chairman or punong barangay is
himself the chairman of the lupon under the Local Government
Code.”
Anyway, if we look to the pangkat under the LGC, the
chairman of the lupon is also the barangay captain. So,
either one or the other will do. So, the case of DIU has
effectively set aside the ruling in
RAMOS.
CANDIDO vs. MACAPAGAL – 221 SCRA 328 [1993]
FACTS: Here, plaintiff Eltor files a case against defendants
Jenny, Gemma, and Jayce. Eltor and Jenny reside in Davao
City. So they (Eltor and Jenny) are covered by the law. But
Gemma and Jayce reside in General City. So there is no problem
with Gemma and Jayce because there is no need to effect
conciliation. But how about Jenny? Should the case be
dismissed against Jenny if there was no prior barangay
conciliation between Jenny and Eltor?
HELD: NO. The fact that Eltor and Jenny reside in the same
municipality does not justify compulsory conciliation WHERE
the other defendants reside in different municipalities or cities.

“While no pangkat was constituted, it is not denied that the

So, it would seem na pag nahaluan na ng iba, you are not also
parties met at the office of the barangay chairman for possible
covered anymore. That seems to be the implication. That seems
settlement. The efforts of the barangay chairman, however,
to jive with another ruling of the SC on the issue of “members of
proved futile as no agreement was reached. Although no
the
same family” because under the law, if the plaintiff and defendant NOTE: Only natural persons can undergo barangay
conciliation.
are members of the same family, they cannot also file a case against each other without conciliation. But if there is a stranger 5.
Disputes involving parties who actually reside in included, the requirement will not apply. barangays of different cities or
municipalities, except where such barangay units adjoin each other and the
July 15, 1993 parties thereto agree to submit their differences to amicable settlement by an appropriate
Lupon;
ADMINISTRATIVE CIRCULAR NO. 14-93 6. Offenses for which the law prescribes a maximum
penalty of imprisonment exceeding one (1) year or a
Subject : Guidelines on the Katarungang Pambarangay fine over five thousand pesos (P5,000.00); conciliation procedure to
prevent circumvention of the Revised 7. Offenses where there is no private offended party; Katarungang Pambarangay Law
(Sections 399-422, chapter VII, 8. Disputes where urgent legal action is necessary to Title I, Book III, R.A. 7160, otherwise
known as the Local prevent injustice from being committed or further
Government Code of 1991). continued, specifically the following:

To : All Regional Trial Courts, Metropolitan Trial Courts, Municipal NOTE: “Urgently.” A good example in civil action is where the
Trial Courts and Municipal Circuit Trial Courts action is coupled with a provisional remedy such as
preliminary injunction, attachment, replevin or support. Or,
The Revised Katarungang Pambarangay Law under R.A. 7160, actions which may be barred by the statute of limitations. otherwise
known as the Local Government Code of 1991, effective on January 1, 1992, and which repealed P.D. 1508, a.) Criminal cases
where accused is under police introduced substantial changes not only in the authority granted custody or detention (See Sec.
412 (b)(1), Revised to the Lupon Tagapamayapa but also in the procedure to be Katarungang Pambarangay Law);
observed in the settlement of disputes within the authority of the b.) Petitions for habeas corpus by a person illegally
Lupon. deprived of his rightful custody over another or a
person illegally deprived of his liberty or one
In order that the laudable purpose of the law may not subverted acting in his behalf;
and its effectiveness undermined by indiscriminate, improper
c.) Actions coupled with provisional remedies such as
and/or premature issuance of certifications to file actions in court preliminary injunction, attachment, delivery of
by the Lupon or Pangkat Secretaries, attested by the personal property and support during the
Lupon/Pangkat Chairmen, respectively, the following guidelines pendency of the action; and
are hereby issued for the information of trial court judges in cases
d.) Actions which may be barred by the Statute of
brought before them coming from the Barangays:
Limitations.
I. All disputes are subject to Barangay conciliation pursuant to the 9. Any class of disputes which the President may Revised
Katarungang Pambarangay Law (formerly P.D. 1508, determine in the interest of justice or upon the repealed and now replaced
by Secs. 399-422, Chapter VII, Title I, recommendation of the Secretary of Justice;
Book III, and Sec. 515, Title I, Book IV, R.A. 7160, otherwise known 10. Where the dispute arises from the Comprehensive as
the Local Government Code of 1991), and prior recourse Agrarian Reform Law (CARL) (Secs. 46 & 47, R.A. 6657); thereto is a
pre-condition before filing a complaint in court or any 11. Labor disputes or controversies arising from employergovernment
offices, EXCEPT in the following disputes: employee relations (Montoya vs. Escayo, et al., 171
SCRA 442; Art. 226, Labor Code, as amended, which
1. Where one party is the government, or any subdivision grants original and exclusive jurisdiction over or
instrumentality thereof; conciliation and mediation of disputes, grievances or
2. Where one party is a public officer or employee, and problems to certain offices of the Department of Labor the dispute
relates to the performance of his official and Employment);
functions;
3. Where the dispute involves real properties located in different cities and municipalities, unless the parties NOTE: In the
case of Montoya vs. Escayo (171 SCRA 442), the thereto agree to submit their difference to amicable conciliation there is in
the Department of Labor. settlement by an appropriate Lupon;
12. Actions to annul judgment upon a compromise, which 4.
Any complaint by or against corporations, partnerships may be filed directly in court (See Sanchez vs. Tupaz,
or juridical entities, since only individuals shall be
158 SCRA 459). parties to
Barangay conciliation proceedings either as
complainants or respondents (Sec. 1, Rule VI, Under the provisions of R.A. 7160 on
Katarungang Pambarangay
Katarungang Pambarangay Rules); conciliation, as implemented by the Katarungang Pambarangay
Rules and Regulations promulgated by the Secretary of Justice,
the certification for filing a complaint in court or any settlement, and there has been no
government office shall be issued by Barangay authorities settlement as certified by the datu or
only upon compliance with the following requirements: tribal leader or elder to the Punong
Barangay of the place of settlement (Secs.
1) Issued by the Lupon Secretary and attested by the 1, 4, & 5, Rule IX, Katarungang
Lupon Chairman (Punong Barangay), certifying that Pambarangay Rules); and
a confrontation of the parties has taken place and 2) If mediation or conciliation efforts before
that a conciliation or settlement has been reached, the Punong Barangay proved unsuccessful,
but the same has been subsequently repudiated there having been no agreement to
(Sec. 412, Revised Katarungang Pambarangay Law; arbitrate (Sec. 410 [b], Revised Rule
Sec. 2[h], Rule Katarungang
III, Katarungang Pambarangay Rules); Pambarangay Lay; Sec. 1, c, (1), Rule III,
Katarungang Pambarangay Rules), or
where the respondent fails to appear at
2) Issued by the Pangkat Secretary and attested by the mediation proceeding before the
the Pangkat Chairman, certifying that: Punong Barangay (3rd par. Sec. 8, a, Rule
VI, Katarungang Pambarangay Rules), the
a) a confrontation of the parties took place but Punong Barangay shall not cause the
no conciliation/settlement has been reached issuance of this stage of a certification to
(Sec. file action, because it is now mandatory
4[f], Rule III, Katarungang Pambarangay Rules; for him to constitute the Pangkat before
or whom mediation, conciliation, or
b) that no personal confrontation took place arbitration proceedings shall be held.
before the Pangkat through no fault of the III. All complaints and/or informations filed or raffled to your
complainant sala/branch of the Regional Trial Court, Metropolitan Trial
(Sec. 4[f], Rule III, Katarungang Pambarangay Court or Municipal Trial Court shall be carefully read and
Rules). scrutinized to determine if there has been compliance with
prior Barangay conciliation procedure under the Revised
Katarungang Pambarangay Law and its Implementing Rules
1) Issued by the Punong Barangay, as and Regulations, as a pre-condition to judicial action,
requested by the proper party on the particularly whether the certification to file action attached
ground of failure of settlement where the to the records of the case comply with the requirements
dispute involves members of the same hereinabove enumerated in par. II;
indigenous cultural community, which
shall be settled in accordance with the
customs and traditions of that particular IV. A case filed in court without compliance with prior
cultural community, or where one or more Barangay conciliation which is a pre-condition for formal
of the parties to the aforesaid dispute adjudication (Sec. 412[a] of the Revised Katarungang
belong to the minority and the parties Pambarangay Law)
mutually agreed to submit their dispute to
the indigenous system of amicable 1) may be dismissed upon motion of defendant/s,
not for lack of jurisdiction of the court but for
 failure to state a cause of action or prematurity
(Royales vs. IAC, 127 SCRA 470; Gonzales vs. CA,
151 SCRA 289), or
2) the court may suspend proceedings upon petition
of any party under Sec. 1, Rule 21 of the Rules of
Court; and refer the case motu propio to the
appropriate Barangay authority, applying by
analogy Sec. 408[g], 2nd par., of the Revised
Katarungang Pambarangay Law which reads as
follows:
"The Court in which non-criminal cases not falling
within the authority of the Lupon under this Code are
filed may at any time before trial, motu proprio refer the
case to the Lupon concerned for amicable settlement.
Strict observance of these guidelines is enjoined. This
Administrative Circular shall be effective immediately.
Manila, Philippines. July 15, 1993.
Sgd.) ANDRES R. NARVASA
Chief Justice
Rule 19
INTERVENTION
Q: Define intervention.
A: An INTERVENTION is proceeding in a suit or action in
which a third person, not a party to the case, is permitted
by the court to make himself a party to the case. (33 C.J.S.
447)
Intervention is a legal proceeding by which a person who is not
a party to the action is permitted by the court to become a party
by intervening in a pending action after meeting the conditions
and requirements set by the Rules of Court. This third person
who intervened is one who is not originally impleaded in the
action (First Philippine Holdings Corporation v. Sandiganbayan
253 SCRA 30)
It is a remedy by which a third party, not originally impleaded in
the proceedings, becomes a litigant therein to enable him to
protect or preserve a right or interest which may be affected by
such proceeding (Office of the Ombudsman v. Samaniego GR
175573, Sept. 11, 2008).
Intervention is never an independent proceeding but is ancillary
and supplemental to an existing litigation. Its purpose is to
enable a stranger to an action to become a party to protect his
interest (Santiago Land Development Corporation v. CA 267
SCRA 79).
An intervention cannot alter the nature of the action and the
issues already joined (Castro v. David 100 Phil. 454).
Intervention in an action is neither compulsory nor
mandatory but only optional and permissive (Mabayo Farms
Inc. v. CA GR 140058 August 1, 2002)Hence, the court has full
measure of discretion in permitting or disallowing the same
(Yau v. Manila Banking Corporation GR 126731 July 11, 2002).
This discretion however, must be exercised judiciously and only
after consideration of all the circumstances obtaining in the
case. Thus, where the substantial interest of the movant in the
subject matter is undisputed, a denial of a motion to intervene
is an injustice (Mago v. CA GR No. 115624 Feb. 25, 1999).
EXAMPLE: Leo – creditor; Rucel – debtor; Rayda – surety. Rucel
and Rayda signed a promissory note in favor of Leo.
Q: Leo sues Rucel and Rayda. What pleading should
Rucel file to protect herself?
A: Rucel should file a CROSS-CLAIM against her co-party
Rayda.
Q: Leo sues only Rucel. What is the remedy of Rucel to
protect herself?
A: Rucel should file a THIRD-PARTY COMPLAINT against
Rayda.
Q: What if Rucel does not file a third party complaint
against Rayda? What can Rayda do to be able to join
the case?
A: Rayda can, with leave of court, INTERVENE under Rule
19. The initiative should come from her.
So an intervention is related to a third-party complaint. It is a
process by which a stranger or a third party is included in a
case, but with the difference that in a third-party complaint, it
is the party who brought you in. While in intervention, the
initiative comes from the third person and he is known as the
intervenor. And the process of entering is called intervention.
And take note that a person cannot simply intervene for the
sake of intervening. There must be a legal ground for
intervention which can be found in Section 1:
Section 1. Who may intervene. A person who has
a legal interest in the matter in litigation, or in
the success of either of the parties, or an
interest against both, or is so situated as to be
adversely affected by a distribution or other
disposition of property in the custody of the
court or of an officer thereof may, with leave of
court, be allowed to intervene in the action.
The court shall consider whether or not the
intervention will unduly delay or prejudice the
adjudication of the rights of the original
parties, and whether or not the intervenor's
rights may be fully protected in a separate
proceeding. (2[a], [b]a, R12)
Q: What are the grounds for intervention?
A: The following are the GROUNDS for intervention:
1) The intervenor has a legal interest on the matter under
litigation;
2) The intervenor has a legal interest in the success of
either of the parties;
3) The intervenor has a legal interest against both; or
4) The Intervenor is so situated as to be adversely affected
by a distribution or other disposition of property in the
custody of the court or of an officer thereof.
Intervention is never an independent proceeding but is ancillary
and supplemental to an existing litigation. Hence, the final
dismissal of the principal action results in the denial of the
pending motion for intervention.
Exception:
The intervenor in a pending case is entitled to be heard like any
other party. A claim in intervention that seeks affirmative relief
prevents a plaintiff from taking a voluntary dismissal of the main
action. Where a complaint in intervention was filed before
plaintiff's action had been expressly dismissed, the intervenor's
complaint was not subject to dismissal on the ground that no
action was pending, since dismissal of plaintiff's action did not
affect the rights of the intervenor or affect the dismissal of
intervenor's complaint. (Metro Bank vs. Presiding Judge, RTC
Manila Branch 39, GR No. 89909, Sept. 21, 1990)
Denial of motion to intervene does not constitute res judicata.
Remedy of the intervenor is to file a separate action. (Asuncion
vs.
Pineda GR No. L-47924, July 31, 1989)
Factors to be considered by the court:
1. whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original
parties; and
2. whether or not the intervenor's rights may be fully
protected in a separate proceeding.
First Ground: THE INTERVENOR HAS A LEGAL
INTEREST ON THE MATTER UNDER
LITIGATION;
Meaning of legal interest
The legal interest must be one that is actual and material,
direct and of an immediate character, not merely contingent
or expectant so that the intervenor will either gain or lose by the
direct legal operation of the judgment. Thus, when the title to
the property has been already declared void by final judgment,
intervention will not revive or reinstate the movant’s title derived
from the title declared void (Firestone Ceramics v. CA 313 SCRA
522; Office of the Ombudsman v. Samaniego).
The assignee of the property who assumed payment of whatever
amount may be finally adjudged against the assignor may
intervene in a proceeding involving the execution of the property
pursuant to a judgment (Robles v. Timario 6 SCRA 380).
In an action for foreclosure of mortgage, the alleged owners of
the land sought to be foreclosed may intervene (Roxas v.
Dinglasan 28 SCRA 430).
EXAMPLE #1: Tarzan died survived by his children. Chita is
appointed as administrator of his estate. Chita filed a case to
recover a piece of land which he believes belongs to the
deceased. The children would like to intervene.
Q: Do children have the legal personality or the right to
intervene involving the estate of Tarzan?
A: YES, because they have a legal interest in the matter in
litigation. If the case will succeed they will be richer. The
property will go to them. (Dais vs. CFI of Capiz, 51 Phil. 396)
EXAMPLE #2: Suppose Victor filed a case against Ping to
recover a piece of land. Victor’s children (Mary, Rose and Ador)
would like to intervene contending that when their father
(Victor) would die in the future, their inheritance is affected.
Q: Can the children of Victor intervene?
A: NO. They cannot intervene the legal interest they are
claiming is contingent, expectant – there is no assurance that
your father will die ahead of you. The interest referred to by the
law is an interest that is direct immediate, actual existing
interest as distinguished from expectant, inchoate or contingent
interest. (Garcia vs. David, 67 Phil. 279)
How do you distinguish the second example from the first case?
In the first case, the father is dead and you inherit the property.
Technically, the property belongs to you. So the right of the
heirs over the property litigated by the administrator is not
expectant or inchoate.
Second Ground: THE INTERVENOR HAS A LEGAL
INTEREST IN THE SUCCESS OF EITHER OF THE
PARTIES;
So you are interested in the plaintiff winning or the defendant
winning.
EXAMPLE: In an action filed by the creditor against the surety
only to recover the debt of the principal debtor without
impleading the principal debtor. The principal debtor may
intervene if he would like to join forces with the surety.
Third Ground: THE INTERVENOR HAS AN INTEREST
AGAINST BOTH PARTIES;
I am not interested in the victory of either the plaintiff or the
defendant. I am interested with my victory against both. So it
becomes a three-cornered fight.
EXAMPLE: Steven Spielberg filed a case against Ridley Scott
who has the right to possess the property and then here I come
– I will intervene. I am the one, not both of you, who has the
right over the property. Wala kayong lahat!!! Mga ungas!! So
bakbakan na iyon. I have a better right against both of you.
Fourth Ground: THE INTERVENOR IS SO SITUATED AS TO
BE
ADVERSELY AFFECTED BY A DISTRIBUTION OR OTHER
DISPOSITION OF PROPERTY IN THE CUSTODY OF THE
COURT OR OF AN OFFICER THEREOF.
EXAMPLE: Sonny secures a writ of preliminary attachment
against Gemma but the property attached preliminarily
happens to be my property. So I can move to intervene because
I am adversely affected by the distribution.
Can you not file a third-party claim if your property is
wrongfully attached? YES you can, but that is not the only
remedy. The law allows the third person to file an intervention
in the main action.
INTERVENTION, NOT A RIGHT
Q: Is the intervention a right or a privilege?
A: NO. It is discretionary. A motion for intervention must be
filed by the intervenor. And under Section 1, the court may or
may not grant the motion - the court shall consider
a.) whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original
parties and
b.) whether or not, the intervenor’s rights maybe fully
protected in a separate proceeding.
For example, the case between the original parties is about to
end, the trial of the case is about to end and at that point, you
will have to intervene. If you intervene, we will start all over
again. So, it will be dilatory. But even if you will not be allowed
to intervene, the court may say that you can file your case in
the future. You can file a separate action later against the
parties.
WHEN AND HOW TO FILE
Sec. 2. Time to intervene. The motion to
intervene may be filed at any time before
rendition of judgment by the trial court. A
copy of the pleading-in-intervention shall
be attached to the motion and served on
the original parties.
Sec. 3. Pleadings-in-intervention. The
intervenor shall file a complaint-
inintervention if he asserts a claim against
either or all of the original parties, or an
answer-in-intervention if he unites with
the defending party in resisting a claim
against the latter. (2[c]a, R12)
Q: When do you move to intervene?
A: Under Section 2, at any time before rendition of judgment by
the trial court. So, you cannot intervene when there is already a
decision.
Requisites for Intervention
The following requisites must be complied with before a non-
party may intervene in a pending action:
(a) There must be a motion for intervention filed before
rendition of judgment by the trial court. A motion is
necessary because leave of court is required before a
person may be allowed to intervene (Section 1);
(b) The movant must show in his motion that he has a (1)
legal interest in
a) matter in litigation,
b) the success of either of the parties in the action, or
c) against both parties, or
d) That the movant is so situated as to be adversely
affected by a distribution or other disposition of
property in the custody of the court or of an officer
thereof (Sec.1)
After rendition of judgment, a motion to intervene is barred,
even if the judgment itself recognizes the right of the movant.
The remedy of the movant is to file a separate action.
Exceptions:
1) with respect to indispensable parties, intervention may
be allowed even on appeal (Falcasantos vs. Falcasantos
GR No. L-4627, May 13, 1952;
2) when the intervenor is the Republic (Lim vs. Pacquing,
GR No. 115044, Jan. 27, 1995);
3) Intervention may be allowed after judgment where
necessary to protect some interest which cannot
otherwise be protected; and for the purpose of
preserving the intervenor's right to appeal (Herrera vol.
1 p. 847)
4) Class suit (Section 12, Rule 3)
Rule 3, Sec. 12. Class suit. - When the subject
matter of the controversy is one of common or
general interest to many persons so numerous that
it is impracticable to join all as parties, a number
of them which the court finds to be sufficiently
numerous and representative as to fully protect
the interests of all concerned may sue or defend
for the benefit of all. Any party in interest shall
have the right to intervene to protect his
individual interest. (12a)
 Did you notice that last sentence? “Any party in
interest shall have the right to intervene.” So, in
other words, in a class suit and you are already
included, law says, you have the right to intervene
in so far as your individual interest is concerned.
So, that would be another instance where
intervention seems to be a matter of right rather
than a matter of discretion.
That the intervention must not unduly delay or prejudice the
adjudication of the rights of the original parties and that the
intevenor’s rights may not be fully protected in a separate
proceeding (Mabayo Farms Inc., v. CA GR 140058 August 1,
2002).
And when you file a motion to intervene, the pleading-
inintervention that you want to file should already be included.
Now, under the old procedure, first, you file a motion to
intervene. After filing your motion and your motion is granted,
then you file your pleading in intervention. So, motion first
before pleading. That was the old rule.
NOW, the copy of the pleading and intervention shall be attached
to the motion and served on the original parties. That is also in
consonance with Rule 15 Section 9 on motions in general.
Rule 15, Sec. 9. Motion for leave. - A motion
for leave to file a pleading or motion shall
be accompanied by the pleading or motion
sought to be admitted. (n)
So, in other words, when you file a motion for leave, the
pleading must already be included in your motion. An example
is a motion to intervene where it must already be accompanied
by the pleading-in-intervention.
Now, what are these PLEADINGS-IN-INTERVENTION? It’s there
in Section 3. It’s either a complaint-in-intervention or an
answer-inintervention. So it DEPENDS:
If you are joining forces with the plaintiff, or you are asserting a
claim against both, then you file a COMPLAINT-IN-
INTERVENTION. If you are uniting with the defendant to resist
the plaintiff, you file an ANSWER-IN-INTERVENTION.
So, these are among the pleadings recognized by the rules. Let’s
try to go back to the basic. What are the types of pleadings
allowed by the rules of court? Rule 6, Section 2:
Sec. 2. Pleadings allowed. The claims of a
party are asserted in a complaint,
counterclaim, cross-claim, third (fourth,
etc.)
party complaint, or complaint-
inintervention.
xxxxx
Actually a complaint-in-intervention is the pleading referred to
now in Rule 19.
Sec. 4. Answer to complaint-in-intervention.
The answer to the complaint-in
-intervention shall be filed within fifteen
(15) days from notice of the order
admitting the same, unless a different
period is fixed by the court.
(2[d]a, R12)
In other words, just like any other complaint, it should be
answered within 15 days. A complaint-in-intervention must be
answered within fifteen (15) days from notice of the order
admitting the same, unless a different period is fixed by the
court. So you have 15 days.
Remedies from denial of intervention:
1) appeal, or
2) mandamus, if there is grave abuse of discretion 3)
certiorari, if there is improper granting of
intervention.
Q: Now, suppose there is an amendment of a complaint-
inintervention. What is the period to answer?
A: Let us go back to Rule 11, Section 3:
Sec. 3. Answer to amended complaint. Where
the plaintiff files an amended complaint as
a matter of right, the defendant shall
answer the same within fifteen (l5) days
after being served with a copy thereof.
Where its filing is not a matter of right, the
defendant shall answer the amended
complaint within ten (10) days from notice
of the order admitting the same. An answer
earlier filed may serve as the answer to the
amended complaint if no new answer is
filed.
This Rule shall apply to the answer to an
amended counterclaim, amended
crossclaim, amended third (fourth, etc.)
party complaint, and amended complaint-
in-
intervention. (3a)
Q: What is the period to answer an amended complaint-
inintervention?
A: It is either 10 or 15 days just like answering an ordinary
amended complaint.
DISMISSAL OF THE MAIN ACTION; EFFECT ON
INTERVENTION
There is a case between Pches and John. Tommy intervened
while the case is going on. Suppose the case was dismissed
either by the court or the plaintiff withdrew it. Can the
intervention proceed independently? Can it proceed when there
is no more main action? In the case of
BIG COUNTRY RANCH CORP. vs. CA – 227 SCRA 161 [1993]
HELD: An intervention is merely collateral or accessory or
ancillary to the principal action and not an independent
proceeding. It is an interlocutory proceeding dependent on or
subsidiary to the case between the original parties. Where the
main action ceases to exist, there is no pending proceeding
wherein the intervention maybe based. If the main action dies,
the intervention dies also.
BUT there is another answer given by the SC in the case of:
METROPOLITAN BANK AND TRUST CO. vs. PRESIDING
JUDGE, RTC OF MANILA – 189 SCRA 820 [1990]
HELD: When the intervention is granted and the main action is
withdrawn or dismissed, it would be unfair to dismiss the
intervention. So the intervention proceeds notwithstanding the
withdrawal of the main action.
“The simple fact that the trial court properly dismissed plaintiffs
action does not require dismissal of the action of the intervenor.
An intervenor has the right to claim the benefit of the original
suit and to prosecute it to judgment. The right cannot be
defeated by dismissal of the suit by the plaintiff. Where a
complaint in intervention was filed before plaintiff’s action had
been expressly dismissed, the intervenor’s complaint was .not
subject to dismissal on the ground that no action was pending.”
So how do you reconcile these conflicting decisions now? Well, I
think it DEPENDS on the ground for intervention. To illustrate:
EXAMPLE #1: The creditor files a case against the surety. The
debtor intervened. So, he is joining the surety. Then creditor
withdrew the complaint. What will happen to the intervention?
The intervention cannot go on because the intervention is
actually to assist the surety. So, if the complaint against the
surety is dismissed, wala ng utang. There is no more basis to
assist the surety. (BIG COUNTRY ruling)
EXAMPLE #2: But suppose Pches filed a case against John
claiming that she has a superior right to posses a piece of land.
And then Tommy will intervene also claiming that he has the
superior right to possess. So the three of them will fight. And
then later, Pches will withdraw the case. What will happen to
Tommy’s intervention? The dismissal of the main action does
not mean that Tommy cannot prove his right against John. The
intervention should continue. Bahala ka kung nag-withdraw
ka, basta ako I will continue. I will claim that the land is mine.
(METROBANK ruling) It depends on what kind of intervention
you are talking about.
Now, an intervention may be confused with another procedure
under Rule 3, Section 19 on Transfer of Interest. For example:
When a property under litigation is sold and there is a notice of
lis pendens, the person who buys is called the TRANSFEREE
PENDENTE LITE. In the case of
SANTIAGO LAND CORP. vs. CA – January 28, 1997
FACTS: Rose brought an action against a bank to enforce an
alleged right to redeem certain real properties foreclosed by the
bank. With notice of the pending civil action, Leo purchased
from the bank one of the properties subject of the litigation. So
Leo is now called the TRANSFEREE PENDENTE LITE. And later,
Leo filed a motion to intervene. Rose opposed Leo’s motion for
intervention.
ISSUE: Does a transferee pendente lite of the property in
litigation have a right to intervene?
HELD: The SC here made a distinction between the rights of a
transferee pendente lite (Rule 3, Section 19) and an intervenor
(Rule 19).
ISSUE: Is a writ of MANDAMUS available to compel a trial court
to grant a motion for intervention?
HELD: “As provided under Rule 19, Section 1, intervention shall
be allowed in the exercise of discretion by a court. Ordinarily,
mandamus will not prosper to compel a discretionary act. But
where there is gross abuse of discretion, manifest injustice or
palpable excess of authority equivalent to denial of a settled
right to which petitioner is entitled, and there is no other plain,
speedy and adequate remedy, the writ shall issue.”
Procedure for Intervention
1) The intervenor shall file a motion for intervention
attaching thereto his pleading-in-intervention. The
pleading to be filed depends upon the purpose of the
intervention. If the purpose is to assert a claim against
either or all of the original parties, the pleading shall
be called a complaint-in-intervention; If the pleading
seek to unite with the defending party in resisting a
claim against the latter, he shall
file an answer-in-intervention (Sec. 3);

“The purpose of Rule 19 on intervention is to enable a stranger 2) The motion and the pleading shall be served upon the
to an action to become a party to protect his interest and for the original parties;
court incidentally to settle all conflicting claims. On the other
hand, the purpose of Rule 3, Section 19 is to provide for the 3) The answer to the complaint-in-intervention shall be
substitution of the transferee pendente lite precisely because he filed within 15 days from notice of the order admitting
is not a stranger but a successor-in-interest of the transferor, the same, unless a different period is fixed by the
who is a party to the action. As such, a transferee’s title to the courts (Sec. 4).
property is subject to the incidents and results of the pending
litigation and is in no better position than the vendor in whose
shoes he now stands.”
“As such, he stands exactly in the shoes of his predecessor in
interest, the original defendant, and is bound by the
proceedings had in the case before the property was transferred
to him. He is a proper, but not an indispensable, party as he
would, in any event, have been bound by the judgment against
his predecessor.”

“How then can it legally be possible for a transferee pendente

lite to still intervene when, for all intents and purposes, the law
already considers him joined or substituted in the pending
action, commencing at the exact moment when the transfer of
interest is perfected between the original party-transferor and
the transferee pendente lite? And this even if the transferee is
not formally joined as a party in the action. Because the
transferee pendente lite simply takes the place of the transferor,
he is barred from presenting a new or different claim.”

“On the other hand, one who intervenes has a choice not to
intervene and thus not to be concluded by any judgment that
may be rendered between the original parties to the action.”

Meaning, if you are a TRANSFEREE PENDENTE LITE, there is no

need for you to intervene because you are already a (necessary)
party. On the other hand, an INTERVENOR can decide whether
or not he wants to join to be bound by the judgment of the main
case. So that is the ruling in SANTIAGO LAND.

There is another case on the issue again of intervention. The

case of

FIRST PHILIPPINE HOLDINGS CORP. vs. SB 253 SCRA 30

[Feb 1,
1996]

FACTS: There was a motion to intervene and the trial court

denied it.

Rule 20
CALENDAR OF CASES
Section 1. Calendar of cases. The clerk of
court, under the direct supervision of the
judge, shall keep a calendar of cases for
pretrial, for trial, those whose trials were
adjourned or postponed, and those with
motions to set for hearing. Preference shall
be given to habeas corpus cases, election
cases, special civil actions, and those so
required by law. (1[a], R22)
The clerk of court has a calendar of cases – cases for pre-trial,
trial cases, which were postponed. When will be the
continuation of the trial? May scheduling yan eh. Of course,
the law says, preference shall be given to certain type of cases
like habeas corpus. It is very important because that involves
the freedom of an individual.
Sec. 2. Assignment of cases. The assignment
of cases to the different branches of a
court shall be done exclusively by raffle.
The assignment shall be done in open
session of which adequate notice shall be
given so as to afford interested parties the
opportunity to be present. (7a, R22)
For example, in Davao City, there are more than 10 branches.
Now, when you file a case, how will we determine whether the
case will be assigned to Judge Malcampo or Judge Quitain or
Judge Torres? Raffle ‘yan. Niraraffle ‘yan. I remember the
ordinary raffling day in Davao City is every Tuesday. They raffle
the cases. All representatives of the different branches are there
and then they have a system of raffling. Which case will go to
you? Para hindi ka makapili. So, that is how cases are
assigned.
So, pag-raffle ng kaso, there should be adequate notice to the
parties. This is one section where the clerk of court had a hard
time applying it. Do you know why?
Because the present practice, pag-file mo ng kaso, they will
immediately raffle it and then i-assign na sa branch. The
branch clerk of court will now issue the summons. Meaning, by
the time it reaches the defendant, naka-assign na. Suppose the
defendant will object, “When that raffling was done, I was not
notified. I will question the raffle because it would seem that the
requirement is that the plaintiff and the defendant should be
notified of the raffling.” Yaan!
Rule 21
SUBPOENA
Section 1. Subpoena and subpoena duces
tecum. Subpoena is a process directed to a
person requiring him to attend and to
testify at the hearing or the trial of an
action, or at any investigation conducted
by competent authority, or for the taking
of his deposition. It may also require him
to bring with him any books, documents,
or other things under his control, in which
case it is called a subpoena duces tecum.
(1a, R23)
Rule 21 applies to both civil and criminal cases.
Q: What are the types of subpoena under the law?
A: The following are the types of subpoena:
1) Subpoena Ad Testificandum; and
2) Subpoena Duces Tecum
Now, the first one is commonly known as subpoena for short.
So, when you say that refers to the first one.
Q: Define Subpoena Ad Testificandum.
A: SUBPOENA AD TESTIFICANDUM is a process directed to a
person requiring him to attend and to testify at the
hearing or trial of an action, or at any investigation
conducted by competent authority, or for the taking of his
deposition. So you are required to appear there and testify
in court.
Q: Define Subpoena Duces Tecum.
A: SUBPOENA DUCES TECUM is a process directed to a person
where it requires him to bring with him any books, documents or
other things under his control. So, in other words we are more
interested in his documents, which are in his custody. Whereas
in ad testificandum, we are more interested in his oral
testimony.
Now, take note that a subpoena is a process which requires a
witness to testify not only during the hearing or the trial of his
case but also any investigation conducted by “competent
authority” like quasi-judicial bodies such as the Labor Arbiter or
the Senate Blue Ribbon Committee. Now, under Section 1, you
may wonder what do you mean by subpoena “for the taking of
his deposition”? That’s because that will clearer when we reach
Rule 23. So we will just reserve talking deposition when we
reach Rule 23.
 Sec. 2. By whom issued. The subpoena may be issued
by:
a) the court before whom the witness is
required to attend;
b) the court of the place where the deposition
is to be taken;
c) the officer or body authorized by law to do
so in connection with investigations
conducted by said officer or body; or
d) any Justice of the Supreme Court or of the
Court of Appeals in any case or investigation
pending within the
Philippines.
When application for a subpoena to a
prisoner is made, the judge or officer shall
examine and study carefully such application
to determine whether the same is made for a
valid purpose.
No prisoner sentenced to death, reclusion
perpetua or life imprisonment and who is
confined in any penal institution shall be
brought outside the said penal institution for
appearance or attendance in any court unless
authorized by the Supreme Court. (2a, R23)
Q: Who are authorized to issue subpoena?
A: The following:
1. The court before whom the witness is required to attend –
the most common is the court where the court is
pending;
2. The place where the deposition is to be taken – we will
discuss that when we reach Rule 23;
3. The officer or body authorized by law to do so in
connection with investigations conducted by said officer
or body – Now, even administrative bodies or quasi-
judicial officers are authorized to issue subpoena like
the Labor Arbiter in connection with investigation
conducted by said
officer or body;
4. Any Justice of the Supreme Court or of the Court of
Appeals in any case or investigation pending within the
Philippines – So, practically any justice can issue a
subpoena to attend a particular case although it is not
before the SC. They are empowered to issue a
subpoena.
Q: Can you subpoena a PRISONER to appear in court?
A: YES, but the law says that the judge should be very careful
to find out whether it is issued for a valid purpose because there
is a risk. If a prisoner is going to be brought out in jail because
he has to testify in a case, that might be an occasion for him to
escape. So, the court should be very careful about that. The
court should have to find out whether it is necessary.
And take note, “No person sentenced to death, reclusion
perpetua, or life imprisonment and who is confined in a penal
institution shall be brought outside the said penal institution
for appearance or attendance in any court unless authorized by
the Supreme Court.” This is something new.
I think this last paragraph is from the case of former
Congressman Nicanor de Guzman of Nueva Ecija who was
convicted of gun running. He was sentenced in Muntinlupa then
one day, because of subpoena to testify in his hometown, he
was escorted in his hometown to attend the fiesta and then I
think he just used that as an excuse to attend the fiesta. And
that was attacked by the media – why was he allowed to leave
the national penitentiary when he is sentenced to reclusion
perpetua? So, this paragraph now appears. You cannot remove
him from any National Penal institution without authority of the
SC.
Sec. 3. Form and contents. A subpoena shall
state the name of the court and the title
of the action or investigation, shall be
directed to the person whose attendance
is required, and in the case of a subpoena
duces tecum, it shall also contain a
reasonable description of the books,
documents or things demanded which
must appear to the court prima facie
relevant. (3a, R23)
Now, actually that is simple. You are required to testify on this
date or time or you are required to bring with you the following
documents, which was described in the subpoena duces tecum.
Now, can a subpoena be quashed? To quash means to have it
dissolved. What are the grounds to quash a subpoena? Section
4:
Sec. 4. Quashing a subpoena. The court
may quash a subpoena duces tecum upon
motion promptly made and, in any event,
at or before the time specified therein if it
is unreasonable and oppressive, or the
relevancy of the books, documents or
things does not appear, or if the person in
whose behalf the subpoena is issued fails
to advance the reasonable cost of the
production thereof.
The court may quash a subpoena ad
testificandum on the ground that the
witness is not bound thereby. In either
case, the subpoena may be quashed on the
ground that the witness fees and
kilometrage allowed by these Rules were
not tendered when the subpoena was
served. (4a, R23)
GROUNDS TO QUASH SUBPOENA DUCES TECUM
To quash there must be motion filed.
Q: What are the grounds for quashing a subpoena duces
tecum?
A: The following are the grounds:
1) If the subpoena duces tecum is unreasonable and
oppressive;
2) The relevancy of the books, things or documents does not
appear;
3) the person in whose behalf the subpoena is issued fails to
advance the reasonable cost for the production thereof.
First Ground: IF THE SUBPOENA DUCES TECUM IS
UNREASONABLE AND OPPRESSIVE
Well, the best example is if it violates Section 3 – it does not
contain a reasonable description of the book, documents or
things demanded.
EXAMPLE: I will subpoena a business man to a business
company, “Mr. Manager you are required to bring to court all
your ledgers, all your receipts, and all your documents from
1990 to the present.” My golly! That would involve how many
truck loads. Meaning, it would involve bringing to court
thousand of documents. So, it becomes unreasonable and
oppressive. The subpoena duces tecum should be more specific.
Second Ground: THE RELEVANCY OF THE BOOKS OR
DOCUMENTS DOES NOT APPEAR
Meaning, there appears to be no connection between the
documents which are being sought, and the issues in the case.
Example, in a collection case, you were required to bring your
birth certificate, marriage contract, etc. My golly! Anong
pakialam ng mga niyan sa collection case?
Third Ground: THE PERSON IN WHOSE BEHALF THE
SUBPOENA IS
ISSUED FAILS TO ADVANCE THE REASONABLE
PRODUCTION THEREOF
This is a very common situation:
A bank received his subpoena duces tecum, “Present to court
the ledger of the return check of somebody.” And this check was
issued and send to you four years ago. Do you know the
inconvenience when a company is asked to bring to court
documents especially ‘yung matagal na? Practically, the
company has to assign the employee out of his usual job. He is
pulled out from his usual job to look for these in the archives.
Isa-isahin niya iyan. Maybe it will take him two or three days to
locate and then he will be required to go to court where you will
miss your work because you will be in court and yet the person
who demand the subpoena duces tecum has never been
bothered to pay service fee for that. Meaning, dapat magbayad
siya reasonable cost.
Of course, the law does not say how much. Sa gobyerno nga
papirma ka lang diyan ng isang pirma bayad ka na ng service
fee. How much more in the private sector, where you are
requiring a company to look for a document? He is the one to
look and then somebody will go to court. He will not be
reporting for job and yet you have not even offered anything to
the company. We experienced this many times subpoena duces
tecum, and then the manager of the bank will say, “do we have
to comply with these?” Well, you do not want to comply.
Puwede man.
When you received the subpoena duces tecum, may bayad ba?
Did the person offer any amount for the trouble in looking for
these documents and in going to court? “Wala.” Okay, we will
move to quash. In other words, sometimes companies and
banks just waived this. Sige lang, bayaan mo na. Maliit na
bagay lang iyan. But it is a ground for quashing a subpoena.
GROUND TO QUASH SUBPOENA AD
TESTIFICANDUM Q: How do you quash a subpoena ad
testificandum?
A: The court may quash a subpoena ad testificandum on the
ground that the witness is not bound thereby.
Q: When is a witness not bound by a subpoena?
A: The best answer is Section 10 of this rule – if your residence
is more than 100 kilometers from the place of trial. So, you
cannot subpoena someone from Cebu to come to Davao because
that is more than 100 kms. But suppose you are willing to pay
for his transportation? Never mind, even if he is willing to pay
the transportation. Pag ayaw niya, wala kang magagawa
because it is more than 100 kms.
In either case, the subpoena may be quashed for failure to
tender the witness fees and kilometrage allowed by the Rules.
In either case, whether subpoena duces tecum or ad
testificandum, the last sentence says, “You must also tender the
witness fees and kilometrage allowed by this rules.” Ano ba
‘yang witness fees? I think that’s Rule 141, ‘yun bang
pamasahe. There is a computation there. How much you have
to pay the witness for his transportation and witness fees. That
is different from the reasonable cost and reproduction in the
first paragraph. So, these are the grounds for questioning a
subpoena.
Sec. 5. Subpoena for depositions. Proof of
service of a notice to take a deposition, as
provided in sections 15 and 25 of Rule 23,
shall constitute sufficient authorization
for the issuance of subpoenas for the
persons named in said notice by the clerk
of the court of the place in which the
deposition is to be taken. The clerk shall
not, however, issue a subpoena duces
tecum to any such person without an
order of the court. (5a, R23)
Now, let’s us skip Section 5 for the meantime because that is
deposition.
Sec. 6. Service. Service of a subpoena shall
be made in the same manner as personal
or substituted service of summons. The
original shall be exhibited and a copy
thereof delivered to the person on whom
it is served, tendering to him the fees for
one day’s attendance and the kilometrage
allowed by these Rules, except that, when
a subpoena is issued by or on behalf of the
Republic of the Philippines or an officer or
agency thereof, the tender need not be
made. The service must be made so as to
allow the witness a reasonable time for
preparation and travel to the place of
attendance. If the subpoena is duces
tecum, the reasonable cost of producing
the books, documents or things demanded
shall also be tendered. (6a, R23)
The first sentence says, “Service of the subpoena shall be made
in the same manner as personal or substituted service of
summons.” That is a new provision. So, the mode of service of
summons, personal or substituted is also the manner of serving
subpoena. So there is now a substituted service of subpoena.
You can leave it to the wife.
1. The original shall be exhibited and a copy thereof be
delivered to the person on whom it is served;
2. tendering to him the fees for one day's attendance or
kilometrage allowed by the Rules; except that, when a
subpoena is issued by or on behalf of the Republic of
the Philippines or an officer or agency thereof, the
tender need not be made;
3. the service must be made so as to allow the witness a
reasonable time for preparation and travel to the place
of attendance; and
 4. if the subpoena is duces mecum, the reasonable cost
of producing the books, documents, or things
demanded shall also be tendered.
Under the old rule, it says there, the subpoena shall be served
personally to the witness. There is no such thing as substituted
service of subpoena because in most cases, when you subpoena
somebody, you go to the house, the witness is not there but the
wife is there. So sabihin mo, “Ibigay mo na lang sa husband mo
ito.” That is substituted service of subpoena. You must serve it
personally to the witness. There is no such thing as substituted
service of subpoena under the prior rule.
But NOW, the rule has changed because Section 6 is very clear:
“It shall be made in the same manner as personal or
substituted service of summons.” Alright.
And take note that You exhibit it to the witness. Then bayaran
mo ‘yong kanyang pamasahe. You must serve the subpoena
with a reasonable time to me to allow him to travel. It’s very
unbecoming that the witness be serve a subpoena today and he
is suppose to testify tomorrow. Suppose he has other
commitments, bigyan mo siya ng time. And of course, as we
discussed earlier, the reasonable cost of producing the books,
documents or things demanded shall also be rendered.
Sec. 7. Personal appearance in court. A
person present in court before a judicial
officer may be required to testify as if he
were in attendance upon a subpoena issued
by such
court or officer. (10, R23)
GENERAL RULE: You cannot be compelled to testify if you
have not been served with a subpoena.
EXCEPTION: Section 7 – a person present in court before a
judicial officer maybe required to testify as if he is under
subpoena.
EXAMPLE: During the trial, Mr. Pogi is there. Gusto niyang
makinig eh. Audience lang siya. And then the lawyer will say,
“Our first witness is Mr. Pogi.” Sabi niya “Uy, uy, wala koy labot
diri. I was not under subpoena.” NO, You can be compelled
because you are present in court. Any person present inside the
courtroom can be compelled to testify as if he is under subpoena.
So, if Mr. Pogi believes he will be called and ayaw niya, huwag
siyang sumipot sa court. Huwag kang magtingin-tingin doon. It
happened several times. There was an instance I wanted to call
a witness several times to surprise him. If I will have him
subpoena, baka makabantay. Alam din niya. And then I’ll talk
to him. “O punta ka bukas ha? Sigurado ha.” In other words,
I’ll have to trick him into going into courtroom and then once
inside, my first witness is that guy. Wala kang magawa.
Because any person present in court can be compelled to testify
because if I will have him subpoena, he will be forewarn. So I
do not want to forewarn him.
FAILURE TO APPEAR; CONSEQUENCES
Q: How do you compel a witness to attend? Meaning, a witness
was subpoena and he did not show up. What are the
consequences of defying a subpoena?
A: The consequences are found in Sections 8 and 9.
Sec. 8. Compelling attendance. In case of
failure of a witness to attend, the court or
judge issuing the subpoena, upon proof of
the service thereof and of the failure of
the witness, may issue a warrant to the
sheriff of the province, or his deputy, to
arrest the witness and bring him before
the court or officer where his attendance
is required, and the cost of such warrant
and seizure of such witness shall be paid
by the witness if the court issuing it shall
determine that his failure to answer the
subpoena was willful and without just
excuse. (11, R23)
Sec. 9. Contempt. Failure by any person
without adequate cause to obey a
subpoena served upon him shall be
deemed a contempt of the court from
which the subpoena is issued. If the
subpoena was not issued by a court, the
disobedience thereto shall be punished in
accordance with the applicable law or
Rule. (12a, R23)
Q: What are the consequences if the witness refuses to
appear after he was subpoenaed
A: The following:
1) You can ask the court to issue a warrant for his arrest
and to make him pay the cost of such warrant and
seizure, if the court should determine that his
disobedience was willful and without just cause.
(Section
2) That’s what you call a warrant to arrest a recalcitrant
witness.
3) Declare him in contempt of court for failure to obey
the subpoena (Section 9)
ENFORCEABILITY OF SUBPOENA
Sec. 10. Exceptions. The provisions of
sections 8 and 9 of this Rule shall not
apply to a witness who resides more than
one hundred (100) kilometers from his
residence to the place where he is to
testify by the ordinary course of travel, or
to a detention prisoner if no permission of
the court in which his case is
pending was obtained. (9a, R23)
Provisions regarding the compelling of attendance (Sec. 8) and
contempt (Sec. 9) do not apply where:
1. the witness resides more than 100 kilometers from his
residence to the place where he is to testify by the ordinary
course of travel (Viatory right).
Note: This refers only to civil and not to criminal cases
(Ganorga vs. Quitain GR No. 891, July 21, 1977)
2. Permission of the court in which the detention prisoner's
case is pending was not obtained.
Although, this 100-km distance does not apply if it is a criminal
case where the accused would like to seek the compulsory
process issued to secure the attendance of witnesses in his
behalf because that is a superior right.
That is how the SC interpreted it in the case of PEOPLE vs.
MONTEJO (21 SCRA 722 [1965]), reiterated in GENORGA vs.
QUITAIN (78 SCRA 94) that the 50-km (now 100-km) limitation
applies only to civil cases, but not to criminal cases, especially if
the person to be subpoenaed is a defense witness because of the
constitutional right of the accused which is a right which 1) SUBPOENA
cannot be curtailed by the Rules of Court. is directed
to a
SUMMONS vs. SUBPOENA witness;
whereas
SUMMONS is directed to a defendant in a civil case;
Q: Distinguish SUBPOENA from SUMMONS.

A: The following are the distinctions:

2) In SUBPOENA, the witness is directed to appear in court or to bring documents;
whereas
In SUMMONS, the defendant is informed that a complaint is filed against him and he
must file a responsive pleading within the period otherwise, judgment can be rendered;

3) In SUBPOENA, the witness will be declared in contempt or his attendance can be

compelled by the issuance of a warrant for his arrest; whereas In SUMMONS, a
judgment in default will be rendered against the defendant who fails to comply.

4) SUBPOENA applicable to both criminal and civil case; whereas

SUMMONS applies only to civil cases.

5) In SUBPOENA, there is a 100-km limitation of its enforceability; whereas

In SUMMONS, there is no distance limitation.
 Rule 22
COMPUTATION OF TIME
Section 1. How to compute time. In
computing any period of time prescribed
or allowed by these Rules, or by order of
the court, or by any applicable statute, the
day of the act or event from which the
designated period of time begins to run is
to be excluded and the date of
performance included. If the last day of
the period, as thus computed, falls on a
Saturday, a Sunday, or a legal holiday in
the place where the court sits, the time
shall not run until the next working day.
(n)
This is what is known as “EXCLUDE THE FIRST AND
INCLUDE THE LAST DAY” rule. That is how it has always
been done even before this new rule. However, it was not
expressed, there is nothing in the previous rules mentioning
that rule but that was really the rule followed.
So, if you received the summons today, for example and you
have 15 days to answer, you start counting 1(one) tomorrow,
not today because the day of the act or event from which the
designated period of time begins to run is to be excluded.
Q: Now what happens if the last day to answer falls on a
Saturday, Sunday or a legal holiday?
A: The last day is automatically the next working day.
So at least, the new rules now embody the rule of computation
of time.
Sec. 2. Effect of interruption. Should an act
be done which effectively interrupts the
running of the period, the allowable period
after such interruption shall start to run
on the day after notice of the cessation of
the cause thereof.
The day of the act that
caused the interruption shall be excluded
in the computation of the period. (n)
EXAMPLE: The defendant received the summons and the
complaint on a certain day. He has 15 days to file his answer.
An example of an act in between which effectively interrupts
the running of the 15-day period is when the defendant files a
motion to dismiss instead of filing an answer, or a motion for a
bill of particulars. In which case, the running of the 15-day
period stops. And since it is stopped, you cannot declare the
defendant in default.
Q: Now, when will it start to run again?
A: It will start to run again when the defendant receives a court
order denying his motion to dismiss.
Any extension of time to file the required pleading should be counted from the
expiration of the period regardless of the fact that the said due date is a Saturday,
Sunday or legal holiday. (AM No. 00-2-14-SC, as explained in Luz vs. National
Amnesty
For example: A motion to dismiss is filed on the 7th day
(instead of filing an answer). Then after several weeks, the court
denied the motion to dismiss and he received the order of
denial.
Q: So how many days more to go?
A: Meron pa siyang eight (8) days to go. But the minimum
guaranteed is five (5) days under Rule 12 and 16.
Now, what is the meaning of the last sentence “The day of the
act that cause the interruption shall be excluded in the
computation of the period.” Let’s try to illustrate that:
FACTS:
January 31 – defendant is served with summons
February 8 – defendant files a motion to dismiss
February 15 – defendant receives order denying motion
to dismiss
Q: What is the deadline for defendant to file his answer?
A: The 15-day period started to run on January 31. From
January 31 to February 8, he consumed 8 days. From
February 8 to 15, not counted because interrupted man by
motion to dismiss. Then, on February 15, he received the order
denying his motion to dismiss.
So the remaining balance of the 15-day period starts to run
again. And 15 minus 8 is equal to 7. Therefore, February 15 + 7
= February 22. That is how you arrive at your (WRONG)
answer.
Now, I’m sure if you ask majority of lawyers and judges with
that kind of problem, they will give the same answer. But the
answer is WRONG. Why?
Q: How many days did he consume from January 31 to
February 8?
A: Hindi naman 8 days eh. 7 days lang because the filing of the
motion to dismiss has interrupted.
So when you file the motion to dismiss on February 8,
interrupted na. So February 8 is not counted. So you consumed
7 days only. Yaaaannnn…….
Therefore, if he consumed 7 days, he has 8 days pa from
February 15 to file. So the deadline is February 23.
Yaaaannnn! Because the law says: “The day of the act that
caused the interruption shall be excluded in the computation of
the period.” The act that caused the interruption is the filing of
the motion to dismiss and it was filed on February 8. So,
February 8 is already excluded in the computation of the period.
Take note of that, that is a very important point because it may
mean the answer is filed on time or out of time. Kahit sa
appeal, applicable din ito. That’s why that provision may sound
very innocent but it is a very important provision.
Commission, GR No. 1597028, Sept. 24, 2004).
 Rule 23
DEPOSITIONS PENDING ACTION
A civil case is not a case of technicalities. The rules do not want
surprises in civil cases. You lay your cards on the table. You do
not keep your opponent searching in the dark and that principle
is manifested in so many rules.
Example: when a defendant resorts to a specific denial, he is
obliged not only to deny the allegations in the complaint but
also the facts that are denied. It is not fair to state that my
version is false, without stating your version. And if you do not
make specific denial, there is a general denial, an implied
admission.
You cannot also deliberately confuse the defendant by making
ambiguous ultimate facts in the complaint to confuse him. He
has the right to clarify the allegation by motion for bill of
particulars.
There is also the rule that objections or defenses not pleaded in
the motion to dismiss or in an answer are generally waived. So,
if you do not invoke the defense because you want to surprise
the plaintiff, you will be the one who will be surprised because
the courts will not allow you. There is no such thing as surprise
defense because under Rule 9, defenses not raised are deemed
waived. These provisions of the rules indicate the principle: LAY
YOUR CARDS ON THE TABLE.
BUT there is still an element of surprise whether you like it or
not because I’m obliged to state my cause of action or defense
but I’m not obliged to state the facts supporting that defense
because the rules even say, evidentiary matters should not be
alleged in the pleading but is only proved in the trial.
A motion for bill of particulars is not a vehicle to fish for
evidentiary facts. So, in that sense there is still an element of
surprise – you do not know my evidence until the trial or pre-
trial.
Q: But if you want to avoid any surprise, is there a way of
knowing then?
A: YES. The correct remedy is to apply the modes of discovery.
Meaning of discovery
In general, a discovery is a device employed by a party to
obtain information about relevant matters on the case
from the adverse party in preparation for the trial. (Riano
2007, p. 310)
As contemplated in the Rules, the device may be used by all the
parties to the case.
Purpose of discovery
The modes of discovery are designed to serve as an additional
device aside from a pre-trial, to narrow and clarify the basic
issues between the parties, to ascertain the facts relative to the
issues and to enable the parties to obtain the fullest possible
knowledge of the issues and facts before civil trials and thus
prevent the said trials to be carried on in the dark. It is intended
to make certain that all issues necessary to the disposition of a
case are properly raised. Thus, to obviate the element of
surprise, parties are expected to disclose at a pre-trial
conference all issues of law and fact and that they intend to
raise at the trial, except such as may involve privileged or
impeaching matters (Tinio v. Manzano 307 SCRA 460; Mercader
v. DBP 332 SCRA 82).
Note: Modes of discovery are intended to be cumulative and
not alternative nor mutually exclusive.
Discovery is not mandatory but failure to avail carries sanctions
in Rules 25 and 26.
BAR QUESTION: How do you distinguish Bill of Particulars
from Modes of Discovery?
A: Bill of Particulars is Rule 12, when you compel the party to
clarify vague statements of ultimate facts, but it is not an
instrument to compel the other party to reveal evidentiary facts.
The Modes of Discovery are intended to compel the other party to
reveal his evidence and evidentiary facts.
Duty of the court in relation to the modes of discovery
The modes of discovery are considered by the SC as vital
components of case management in pre-trial courts. Hence,
aside from preparing the summons within one (1) day from the
receipt of the complaint, the court is required to issue an order
requiring the parties to avail of interrogatories to parties under
Rule 25 and request for admission by adverse party under Rule
26 or at their discretion make use of depositions under Rule 23
or other measures under Rules 27 and 28 within five (5) days
from the filing of the answer. A copy of this order shall be served
upon the defendant together with the summons. A copy of the
order shall also be served upon the plaintiff (A.M. No. 03-1-09-
SC, July 13, 2004).
There are actually five (5) Modes of Discovery:
1. DEPOSITIONS – (a) pending action (Rule 23) and (b)
before action or pending appeal (Rule 24);
2. WRITTEN INTERROGATORIES TO PARTIES (Rule 25);
3. REQUEST FOR ADMISSION OF ADVERSE PARTIES
(Rule 26);
4. PRODUCTION OR INSPECTION OF DOCUMENTS AND
THINGS (Rule 27); and
5. PHYSICAL AND MENTAL EXAMINATION OF PERSONS
(Rule
28)
First Mode: Rule 23: DEPOSITION PENDING ACTION
This mode is the most popular among the five. Deposition has
two (2) types – deposition pending action (Rule 23) and
depositions before action or pending appeal (Rule 24). But
actually Rule 24 is not new because that is Rule 134
(Perpetuation of Testimony).
EXAMPLE: You are my opponent and I know you have 2
witnesses, A and B. Now, of course, if A and B will testify, how
will they testify, that I do not know. But I want to know exactly
what they will say during the trial, including you.
Q: How do I apply Rule 23?
A: I will take your deposition. Meaning, I will take your
testimony in advance by compelling you to appear before
someone whom we call a Deposition Officer – the judge, or any
judge, or even a notary public - who can administer oath. And
then before him, I will be asking now questions and you have to
answer under oath. Your answers will then be recorded including
that of your witnesses.
Therefore, during the trial, when you or your witnesses will
testify, there is no more surprise testimony that you can give me
because I already heard you in advance. You cannot contradict
your answer. This is what you call deposition taking.
Now, if I can do that to you, you can also do that to me. The
defendant can also use that against the plaintiff.
Q: How do you define deposition?
A: DEPOSITION is the written testimony of a witness given
in the course of a judicial proceeding, in advance of the
trial or hearing, upon oral examination or in response to
written interrogatories, and where an opportunity is given
for cross-examination. (16 Am. Jur. 699)
The Rules of Court and jurisprudence do not restrict a
deposition to the sole function of being a mode of discovery
before trial. Under certain conditions for certain limited
purposes, it may be taken even after trial has commenced and
may be used without the deponent being actually called to the
witness stand.
Depositions may be used for the trial or for the hearing of a
motion or an interlocutory proceeding as provided in Section 4,
Rule 23. (Jonathan Landoil International Co., Inc. vs. Sps
Mangudadatu, GR No. 155010, August 16, 2004).
When I take the deposition of somebody, my opponent has the
right to cross-examine the same witness. So practically, it’s a
dress rehearsal for the trial when I ask questions, my opponent
can ask questions also. The questioning of the witnesses is done
the way it is done during the trial. The witness of the opponent
has to undergo the same procedure in the rules of evidence.
That is Section 3:
Sec. 3. Examination and cross-examination.
Examination and cross-examination of
deponents may proceed as permitted at
the trial under sections 3 to 18 of Rule
132. (3a, R24)
Q: Distinguish a deposition from an affidavit.
A: Affidavit is also a sworn statement of a witness but the
statement is taken ex-- parte (no cross--examination). But in
deposition there is cross--examination, there is a confrontation as
if he is already testifying in court.
Affidavits are not admissible in evidence except in cases
governed by the Rule on Summary Procedure or in ordinary
cases subject to cross-examination.
Depositions are intended as a means to compel disclosure of
facts resting in the knowledge of a party or other person, which
are relevant in a suit/proceeding.
Classification of Depositions
1. Depositions on oral examination and depisitions upon
written interrogatories;
2. depositions de bene esse - those taken for purposes of a
pending action (R 23); and
3. Depositions in perpetua rei memoriam - those taken to
perpetuate evidence for purposes of an anticipated
action or further proceedings in a case on appeal (R 24)
Section 1. Depositions pending action, when
may be taken. By leave of court after
jurisdiction has been obtained over any
defendant or over property which is the
subject of the action, or without such leave
after an answer has been served, the
testimony of any person, whether a party
or not, may be taken, at the instance of
any party, by deposition upon oral
examination or written interrogatories.
The attendance of witnesses may be
compelled by the use of a subpoena as
provided in Rule 21. Depositions shall be
taken only in accordance with these Rules.
The deposition of a person confined in
prison may be taken only by leave of court
on such terms as the court prescribes. (1a,
R24)
Deposition-taking under Section 1 presupposes that there is a
pending civil case, thus, the title is depositions pending action.
There is an existing civil case and I would like to take the
deposition of certain people.
Q: When there is a pending action, is it necessary that leave of
court or permission should be sought for deposition to be
allowed?
A: The rule is, it DEPENDS if there is already an answer or no
answer:
A. With leave of court
1. after jurisdiction has been obtained over any defendant
or over the property which is the subject of the action
but before an answer has been filed.
Reason: Leave of court is necessary because the issues are not
yet joined and the disputed facts are not yet clear.
2. Deposition of a person confined in prison.
B. Without leave of Court
After answer and deponent is not confined in prison.
In one case, petitioners contend that they have not yet served an
answer to respondents because the answers that they have filed
were made ex abundanti cautela. In other words, they do not
consider the answers they filed in court and served on
respondents as answers contemplated under the Rules of Court
on the ground that same were filed ex abundanti cautela. They
contend that since they had not yet filed an answer, any
deposition must be made with leave of court.
The court found the contention untenable and ruled:
“We find petitioners’ contention to be untenable. Ex
abundanti cautela means “out of abundant caution” or
“to be on the safe side”. An answer ex abundanti
cautela does not make their answers less an answer. A
cursory look at the answers filed by petitioners shows
that they contain their respective defenses. An answer
is a pleading in which a defending party sets forth his
defenses and the failure to file one within the time
allowed therefore may cause a defending party to be
declared in default. Thus, petitioners, knowing fully
 well the effect of the non-filing of an answer, filed their
answers despite the pendency of their appeal with the
Court of Appeals on the denial of their motion to
dismiss.” (Rosete v. Lim GR No. 136051, June 8, 2006)
Q: Whose deposition can you take?
A: The law says, you can take the testimony of any person
whether a party or not at the instance of any party.
EXAMPLE: I will file a case against Mr. A. Can I take the
depositions of his witnesses? Yes, including Mr. A’s deposition. I
can also take the deposition of my own witnesses, even my own
deposition. At least, before I die, nakuha na yung testimony ko.
So I can take the deposition of anybody in the world. That’s
why the law says, “the testimony of any person whether a party
or not may be taken at the instance of any party.” And of
course, Mr. A can also do what I was allowed to do.
Q: When you take deposition of this person, what do you call
him?
A: The accurate term is that, he is called ‘DEPONENT.’ Some
people call him witness.
Q: What are the modes of deposition taking?
A: Under the law, there are two (2) recognized modes:
1) Deposition upon oral examination; and
2) Deposition upon written interrogatories
The deposition upon oral examination is more popular because
it is just like how you question a witness in court: Questions
and answers, then it is recorded. And then later on, the other
counsel would ask his questions and answer. Deposition upon
written interrogatories should not be confused with Rule 25
because the former is governed by Rule 23. Although they use
the same words.
Now, as we shall see, there must be a deposition officer and
under the law, even a notary public is qualified to act as
deposition officer because he can administer oaths.
Deposition taking has a counterpart in criminal procedure. c.f.
Rule 119, Sections 12,13 and 15.
Q: Suppose I would like to take the deposition of Ms. A
before a notary public whose office is located along San
Pedro Street. How can I force Ms. A to go to the office of
that notary public? Can I force her?
A: If Ms. A is in court, the court can force you by subpoena. But
I can also compel Ms. A to attend this questioning for the
purpose of deposition. Section 1 says, “the attendance of
witnesses may be compelled by the use of a subpoena as
provided in Rule 21.”
Rule 21, Section 1. Subpoena and subpoena
duces tecum. Subpoena is a process directed
to a person requiring him to attend and to
testify at the hearing or the trial of an
action, or at any investigation conducted
by competent authority, or for the taking
of his deposition. It may also require him
to bring with him any books, documents,
or other things under his control, in which
case it is called a subpoena duces tecum.
(1a, R23)
PROBLEM: Your case is in Davao but your witness is in Cebu.
You asked your witness to come here in Davao to help you and
you are even willing to shoulder her transportation, but she
refuses.
Q: Can you ask the court in Davao to issue a subpoena
compelling such witness to come here and testify even if the
distance is more than 100 kilometers?
A: NO, because of Section 10 of Rule 21. The remedy is you go
to Cebu and get a deposition officer and take her deposition.
Q: How can I compel her to go to the office of the notary public
in Cebu for the purpose of the deposition?
A: You can get a subpoena from the Cebu court and that is
allowed under Rule 21, Section 2 [b] and under Rule 21,
Section 5:
Rule 21, Sec. 2. By whom issued. The subpoena may
be issued by:
xxxxx
b) the court of the place where the
deposition is to be taken;
xxxxx
Sec. 5. Subpoena for depositions. Proof of
service of a notice to take a deposition, as
provided in sections 15 and 25 of Rule 23,
shall constitute sufficient authorization
for the issuance of subpoenas for the
persons named in said notice by the clerk
of the court of the place in which the
deposition is to be taken. The clerk shall
not, however, issue a subpoena duces
tecum to any such person without an
order of the court. (5a, R23)
In other words, I will send the notice to my opponent, “I am
going to take the deposition of my witness in Cebu.” And based
on that notice, I will go to Cebu and ask the clerk of court of the
RTC of Cebu to issue a subpoena based on the notice to take
deposition on the Davao case. And under the Rules, the Cebu
RTC has to issue a subpoena even if the case is not pending in
that (Cebu) court because this is only deposition. Kaya nga
under Rule 21, Section 2 [b], a subpoena may be issued by the
court of the place where the deposition is to be taken.
There was an instance before, a Manila lawyer who wanted to
take the deposition of somebody in Davao. Then he applied for
a subpoena to require the deponent to appear before a notary
public here. At least, tama siya doon. Ang mistake niya, he
applied for a subpoena in the Manila court where the case is
pending and the judge there, maybe he did not read Rule 21,
issued a subpoena addressed to the person in Davao to appear
before the notary public in Davao and the witness did not
appear. So the lawyer realized na mali siya. So he had to do it
all over again in Davao, not in Manila. The subpoena has no
more effect beyond 100 kilometers. It should be filed not where
the case is pending but at the court of the place where the
deposition is to be taken. In other words, the error was
corrected, but can you imagine the waste of time and effort.
Generally, depositions are taken at the start of the case before
the trial. But in the case of
DASMARIÑAS GARMENTS, INC. vs. REYES – 225 SCRA 622
[1993]
ISSUE: Whether or not deposition taking is only allowed before
the action comes to trial. Can you still resort to deposition
under Rule 23 when the trial is already ongoing or it is only at
the pre-trial?
HELD: “Depositions may be taken at any time after the
institution of any action, whenever necessary or convenient.
There is no rule that limits deposition-taking only to the period
of pre-trial or before it; no prohibition against the taking of
depositions after pretrial. Indeed, the law authorizes the taking
of depositions of witnesses before or after an appeal is taken
from the judgment of a Regional Trial Court to perpetuate their
testimony for use in the event of further proceedings in the said
court and EVEN during the process of execution of a final and
executory judgment.”
Meaning, deposition taking is even allowed as part of the
execution where the trial is already terminated. This is called
with another name in Rule 39 on execution, satisfaction or
effects of judgments. (c.f. Rule 39, Sections 36, 37 and 38)
What can be the subject matter of deposition taking? Section 2:
Sec. 2. Scope of examination. Unless
otherwise ordered by the court as provided
by section 16 or 18 of this Rule, the
deponent may be examined regarding any
matter, not privileged, which is relevant to
the subject of the pending action, whether
relating to the claim or defense of any
other party, including the existence,
description, nature, custody, condition,
and location of any books, documents, or
other tangible things and the identity and
location of persons having knowledge of
relevant facts. (2, R24)
Q: When you take the deposition of a deponent what can
you ask? What matters may be inquired into?
A: The law says, the deponent may be examined regarding any
matter whether related to the claim or defense of a party.
Example: Suppose if there is a case between me and somebody
and I suspect Pedro knows something about the facts but I am
not sure, so I will take his deposition. I will start asking
questions to Pedro wherein practically I’m groping in the dark. I
just start asking questions left and right hoping that, I may
stumble into something about the case.
Q: Is that allowed? Pataka lang ba ang style of asking
questions.
A: YES, it is allowed. Precisely, the mode of discovery is a
fishing expedition in the hope that you will discover something
in the course of a questioning. If I already know a fact, there is
nothing to discover. It is very broad that I may discover
something in the course of questioning. You can ask the
deponent any matter related to the claim or defense but there
are limitations.
LIMITATIONS IN DEPOSITION TAKING
Q: What are the limitations or prohibitions in deposition taking?
A: The following are the limitations in Deposition Taking:
1.) The matter inquired into is not privileged either under
the rules on evidence or special law;
2.) The matter inquired into is relevant to the subject of the
pending action;
3.) The court may issue orders to protect the parties and its
deponents under Sections 16 or 18.
FIRST LIMITATION: That the matter inquired into is not
privileged.
There are things which you cannot compel a person to reveal in
court.
EXAMPLE: You cannot compel the wife to reveal in court what
her husband told her in confidence during their marriage. That
is known as the marital privileged communication rule (Rule
130, Section 24 [a]).
Other privileged communications: Lawyer-Client communication
rule (Rule 130, Section 24 [b]); Physician-Patient
communication rule (Rule 130, Section 24 [c]); Priest-Penitent
communication rule (Rule 130, Section 24 [d]). Or, business
trade secrets such as the formula of your product.
So, if you cannot ask that in a trial, you cannot also ask that in
a deposition taking.
SECOND LIMITATION: The matter inquired into is relevant
to the pending action.
While deposition taking authorizes a fishing expedition, you are
not allowed however, to go beyond the topic.
EXAMPLE: You will ask the witness about an incident which
happened and she was supposed to be there. “Where were you
on this date?” “I was there.” “Who was with you?” “I was with
my boyfriend.” “When did he become your boyfriend?” or “How
often do you date each other?” or “What’s his favorite color?
Malaki ba ang tiyan niya?” My golly! Those questions are
irrelevant. Anong pakialam niyan sa topic? Walang connection
ba!
THIRD LIMITATION: The court may issue orders to
protect the parties and its deponents under Sections 16
or 18 of this Rule.
While it is true that leave of court is not necessary anymore, you
have to remember that it is related to a pending case and the
court has control over the case. That is why, while leave of court
is not necessary, any party who is aggrieved can go to court and
complain. And the court is authorized to issue orders to protect
the parties and its deponents under Sections 16 or 18 of this
Rule.
Scope of examination in deposition
1. matter which is relevant to the subject of the pending
action;
2. not privileged; and
3. not restricted by a protective order (Secs. 16 and 18)
Q: In what proceedings can a deposition be used?
A: It can be used later during the trial of the case, or in
supporting or opposing a motion. A good example is the remedy
of summary judgment under Rule 35. Under this Rule, a party
can file a motion for summary judgment to demonstrate that
the party has no cause of action. In that sense, I will support
my motions with affidavit, depositions or documents.
USE OF DEPOSITIONS
 Sec. 4. Use of depositions. At the trial or
upon the hearing of a motion or an
interlocutory proceeding, any part or all of
a deposition, so far as admissible under the
rules of evidence, may be used against any
party who was present or represented at
the taking of the deposition or who had
due notice thereof, in accordance with any
one of the following provisions:
xxxxx
Where the witness is available to testify and the situation is not
one of those excepted under Section 4, his deposition is
inadmissible in evidence and he should be made to testify.
Q: In what proceedings may a deposition be used?
A: The following:
1) At the trial;
2) Upon a hearing of a motion; or
3) Upon a hearing of interlocutory proceeding (e.g.
issuance of a writ of preliminary injunction or
attachment)
Q: Against whom may a deposition be used?
A: Against the following:
1) against any party who was present; or
2) against a party who was represented at the taking of
the deposition; or
3) against a party who did not appear or represented but
was duly notified of the scheduled deposition taking.
So, the procedure for deposition taking is first, to notify the
other party of the date, place and time of the deposition taking
of a person. The other party is free to go there and participate.
So if a person appeared and participated, he is bound by the
deposition. If he fails to appear but sent a representative, the
same effect – the person is bound. Suppose a person received
the notice and never bothered to go or participate, he is still
bound because the law says, for as long as you are notified, you
are bound.
So whether you will come or not, you are bound by the
deposition taking. In this case, you might as well show up.
Summary of use:
1) Deponent is any person - - - can be used by any party to
contradict or impeach the testimony of said deponent;
2) deponent is a party or anyone who at the time of the
deposition was an officer, director or managing agent of a
public or private corporation, partnership, or association
which is a party - - - can be used by any party for any
purpose;
3) deponent is a witness, whether or not a party - - - can be
used by any party for any purpose under any of the
following 5 instances:
a. the witness is dead;
b. the witness resides more than 100 kilometers from the
place of trial or hearing, or is out of the Philippines.
Unless it appears that his absence was procured by
the party offering the deposition;
c. the witness is unable to testify because of age,
sickness, infirmity, or imprisonment;
d. the party offering the deposition has been unable to
procure the attendance of the witness by subpoena; or
e. upon application and notice, that such exceptional
circumstances exist as to make it desirable in the
interest of justice.
Note: Certiorari will not lie against an order admitting or
rejecting a deposition in evidence. The remedy is an
appeal from the judgment.
The reason is because it is merely an error of law not grave
abuse of discretion.
(a) Any deposition may be used by any
party for the purpose of contradicting or
impeaching the testimony of deponent as
a witness;
EXAMPLE: I will take the deposition of Mr. Malaki as a possible
witness. After listening to his testimony, his testimony is in my
favor. I tell the court during trial that my next witness is Mr.
Malaki but since he is busy and his deposition is taken
beforehand, I will no longer present him but instead I will
present as evidence his deposition to take the place of his oral
testimony in court.
Q: Is that allowed? Can a deposition substitute for his oral
testimony?
A: NO, a deposition can only be used for the purpose of
contradicting or impeaching the testimony of deponent as a
witness. It does not exempt the witness from testifying in court.
It is only a means of knowing what the witness will testify.
When you take the deposition of a witness, you are already
assured that this will be his story. If I asked you the same
question in court, naturally he will have the same answer. So
there are no more surprises. If I am asking a question identical
to my deposition, I expect the answer to be identical during the
trial.
Q: Suppose the witness during the trial will reverse his
testimony. His testimony in the deposition is favorable to
me but during the trial, pabor naman sa kalaban.
A: I can now use his deposition to destroy him. I will impeach
him by showing that the witness is not reliable. To IMPEACH the
testimony of a witness is to destroy his credibility. I will offer in
evidence the deposition for impeachment purposes. This is
known as PRIOR INCONSISTENT STATEMENT under the rules
on evidence.
They cannot change story during the trial because I can
impeach them.
Therefore, a deposition is not a substitute for the testimony of
the witness in court. You still have to present him in court. He
has to testify all over again but at least you already have a
guideline. So, if he deviates from the deposition, you can
impeach him using the deposition taken under oath earlier.
(b) The deposition of a party or of anyone
who at the time of taking the deposition was an
officer, director, or managing agent of a public or
private corporation, partnership, or association
which is a party may be used by an adverse party for
any purpose; Q: What is the difference between
paragraphs [a] and [b]?
A: The following:
 1.) In paragraph [a], it is the deposition of a WITNESS and
not a party, while
In paragraph [b], it is the deposition of the PARTY
himself.
2.) In paragraph [a], the deposition of witness can be used
only for contradicting or impeaching the testimony of
deponent as a witness, while
In paragraph [b], the deposition of a party can be used
for any purpose. So it is broader than the first.
ILLUSTRATION: Suppose I will take the deposition of my
opponent (adverse party) and I have already a record of his
testimony. During the trial if he testifies contrary to the
deposition, I could use it to impeach him. But suppose the
deposition is in my favor, I could present the deposition as an
admission in my favor. I could use it as evidence against my
opponent. Therefore, I can use it as evidence or I can use it as a
tool to impeach or contradict the other party.
In other words, the deposition of a mere WITNESS is for strict
purpose (for impeachment only) and the deposition of an
ADVERSE PARTY is for any purposes because I can use it to
impeach or I can use it as evidence. And if a witness say
something in my favor, I cannot use it as evidence. I have to ask
the witness to repeat his statement in court. But if it is a party,
I can use it as evidence already under the rule on admission of
evidence that the act or declaration of a PARTY may be used as
evidence against him (Rule 130, Section 26). So, that is the
difference between deposition of a party and a witness.
Q: Suppose the adverse party is a corporation
A: Under paragraph [b], you can take the deposition of any of its
officers, directors, or managing agent of the corporation.
(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 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; and
Paragraph [c] is an exception to paragraph [a]. Paragraph [a]
applies only to a deposition of a witness for contradicting or
impeaching his testimony. It is only in paragraph [b] which
applies the use of deposition for any purpose but it refers to the
deposition of the adverse party.
Now, paragraph [c] allows the use of the deposition of a
WITNESS for any purpose.
DEATH
Q: I will take the deposition of Juan who is my witness.
During the trial, my next witness is Juan. Do I have to
present Juan or only his testimony in the deposition as
evidence?
A: I have to present my witness Juan because under paragraph
[a], the deposition is only good for impeachment purposes but not
a replacement for his oral testimony.
Q: Suppose, when I’m about to present Juan during the
trial, a day before that he died. So, I have no more witness.
Can I now present his testimony in the deposition as
evidence?
A: YES. Under the law, his deposition will take the place of his
oral testimony because he is dead. However, if he is alive, apply
paragraph [a] – you cannot substitute his deposition to his oral
testimony.
Now, it is true that when you take the deposition of your own
witness, you are supplying the other party a means to impeach
the testimony of your witness. But if you look at paragraph [c],
it is also important to take the deposition of your witnesses.
The purpose is just in case your witness will die before he can
testify in court. At least, kung nakuha mo na ang deposition
niya earlier, masuwerte ka.
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
EXAMPLE: My witness is from Cebu. Under the rule on
subpoena, I cannot compel him to come to Davao and testify in
a case because of the 100-kilometer rule. The remedy is to go to
Cebu and take his deposition there. When the case in Davao is
called, I will tell the court that my next witness is from Cebu
and the distance from Davao is more than 100 kilometers. So I
have no choice but to take his deposition there. In this case, I
can offer as evidence his deposition to take the place of his oral
testimony. And that is allowed as exception to paragraph [a].
And if your witness is leaving for abroad, you might as well take
the deposition before it is too late, or you might end up without
any witness. That is the advantage of paragraph [c].
WITNESS NOT FOUND
So, if I am unable to procure the attendance of my witness by
subpoena means that the witness can no longer be found. His
whereabouts is already unknown but I was able to take his
deposition earlier.
(d) If only part of a deposition is offered in
evidence by a party, the adverse party may
require him to introduce all of it which is
relevant to the part introduced, and any
party may introduce any other parts.
ILLUSTRATION: Suppose I will take the deposition of Juan dela
Cruz. The first part is in my favor but when he was cross-
examined by the other party, he clarified his answers and
turned out that his original answers were not really in my favor.
So there are two parts of the deposition: PART ONE, in the
general questions, the answers seem to be in my favor; PART
TWO, when the questions are specific, it turned out that it was
not in my favor. So if I am the lawyer what I will offer is the
part one as my evidence because it is in favor of my client. The
other party will present the other part.
In evidence, the party is not obliged to offer in evidence
documents which are against his cause. It is now the job of the
other lawyer to offer the other part thereof (c.f. Section 17, Rule
132). So if this is so, the picture created will only be half of the
whole picture.
Q: Is this unethical as it is suppressing the truth?
A: No, I am not suppressing the truth. Lawyers are not allowed
to lie. Nowhere in the Legal Ethics is it being espoused that
lawyers are told to lie. In fact, a lawyer must be honest and true
for the administration of justice. It is the lawyer of the other side
who has the absolute right to complete the picture by offering
the other half. I am not under obligation to help the other side.
A lawyer has no obligation to present everything. He is only
under the obligation to support the interest of my client.
What is unethical is when you present something against
the interest of your client.
Q: Is it not twisting the truth?
A: NO. Twisting the truth is changing the facts. I am not
changing the facts of the story. I am only presenting one side of
the story. But definitely the other party is not precluded from
testifying to present the other half of the story. If the other party
fails to present the other half of the story, that is their problem.
Do not blame me.
Sec. 5. Effect of substitution of parties.
Substitution of parties does not affect the
right to use depositions previously taken;
and, when an action has been dismissed
and another action involving the same
subject is afterward brought between the
same parties or their representatives or
successors in interest, all depositions
lawfully taken and duly filed in the former
action may be used in the latter as if
originally taken therefor. (5, R24)
Q: Plaintiff filed a case against defendant. Depositions were
taken. Later, one of the parties died and there was substitution.
Is there a need of taking depositions again? Will the deposition
already taken be also applicable to the same case although the
parties are now different?
A: YES. The substitution of parties does not affect the right to
use depositions previously taken.
Q: Jolina files a case against Maya and depositions were taken.
Later, the case is dismissed without prejudice. Jolina re-filed
the case. Is it necessary for depositions to be taken all over
again?
A: NO NEED. The depositions taken in the dismissed case will
still apply to the new case. There is no need of repeating the
whole process.
Sec. 6. Objections to admissibility. Subject to
the provisions of section 29 of this Rule,
objection may be made at the trial or
hearing to receiving in evidence any
deposition or part thereof for any reason
which would require the exclusion of the
evidence if the witness were then present
and testifying. (6, R24)
Q: Can you object to the evidence which is being offered during
the deposition taking?
A: YES, however the deposition officer cannot rule but the
objection is recorded. It is the judge who will rule on the
objection later during the trial.
Sec. 7. Effect of taking depositions. A party
shall not be deemed to make a person his
own witness for any purpose by taking his
deposition. (7, R24)
We know that deposition taking is a fishing expedition. If after
taking a witness deposition, he knows nothing, then he is
useless as a witness to me. You are not my witness.
If after taking your deposition, it turns out that everything you
say is against me, am I bound by your testimony? NO. In fact, it
is the other party who will use you as his witness. But
definitely, you are not my witness.
General rule:
A party shall not be deemed to make a person his own witness
for any purpose by taking his deposition because depositions
are taken for discovery and not for use as evidence.
Exception:
If a party offers the deposition in evidence, then he is deemed to
have made the deponent his witness (Sec. 8)
Exception to the exception
Unless the deposition is that of an opposing party or the
deposition is used to impeach or contradict the deponent (sec.
8).
Sec. 8. Effect of using depositions. 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. (8, R24)
Sec. 9. Rebutting deposition. At the trial or
hearing, any party may rebut any relevant
evidence contained in a deposition
whether introduced by him or by any other
party. (9, R24)
It is just like a witness in court. If a witness says something in
court, you can always prove that that is not true. If it is a
deposition, the same thing – you can always rebut the truth of
what he said in his deposition.
BEFORE WHOM DEPOSITIONS ARE TAKEN
If the deposition is to be taken WITHIN THE PHILIPPINES, who
are authorized to act as deposition officer? Section 10:
Sec. 10. Persons before whom depositions may
be taken within the Philippines. Within the
Philippines, depositions may be taken before
any judge, notary public, or the person
referred to in section 14 hereof. (10a, R24)
Q: If the deposition taking is in the Philippines, who are these
persons before whom depositions are taken?
A: The following:
1) ANY JUDGE. So, it is not necessary the judge acting
on the case. In fact, you can request a judge in Manila
to be the deposition officer and he will not be the one
to decide. He is only the deposition officer;
2) NOTARY PUBLIC. A notary public is authorized by law
to administer oath. Take note that not all lawyers are
notary public. To be a notary public, you have to apply
for commission in the court of the place where you are
practicing. If you are a notary public for Davao City,
you cannot be a notary public in any other place. And
usually, a commission for notary public is only good
for 2 years.
After 2 years, you have to re-apply.
3) PERSON REFERRED TO IN SECTION 14:
Sec. 14. Stipulations regarding
taking of depositions. If the parties so
stipulate in writing, depositions may be taken
before any person authorized to administer
oaths, at any time or place, in accordance with
these Rules, and when so taken may be used like
other depositions. (24a,
R24)
So, the parties may stipulate in writing that the
deposition officer may not be a judge or a notary
public. It can be other person who is authorized to
administer oath such as prosecutors, clerk of court
who is a lawyer, labor arbiters, etc. Anyway, they are
also authorized to administer oaths.
If the deposition is to be taken ABROAD, who are authorized to
act as deposition officer? Section 11:
Sec. 11. Persons before whom depositions
may be taken in foreign countries. In a
foreign state or country, depositions may
be taken (a) on notice before a secretary
of embassy or legation, consul general,
consul, vice-consul, or consular agent of
the Republic of the Philippines; (b) before
such person or officer as may be
appointed by commission or under letters
rogatory; or (c) the person referred to in
section 14 hereof. (11a, R24)
The amendment here again is the persons referred to under
Section 14.
So, a secretary of the Philippine embassy or consulate abroad is
authorized to act as deposition officer, as well as the consul
general, vice-consul, although on a SC circular, if the judge will
authorize the taking of deposition abroad, because this time
leave of court is required, you course it to the Department of
Foreign Affairs. The parties are not supposed to communicate
directly to the Philippine Embassy.
Q: How about in places where we do not have embassy?
A: Those with country where we do not have diplomatic
relations, you have to avail of [b]. So in this case, the person
who is authorize to take the deposition may be the one who is
authorized by commission, or if not by commission, by letters
rogatory.
What do you mean by commission or a letters rogatory? Sec
12:
Sec. 12. Commission or letters rogatory. A
commission or letters rogatory shall be
issued only when necessary or convenient,
on application and notice, and on such
terms and with such direction as are just
and appropriate. Officers may be
designated in notices or commissions
either by name or descriptive title and
letters rogatory may be addressed to the
appropriate judicial
authority in the foreign country. (12a, R24)
By COMMISSION, somebody other than Philippine consul… like
in Taiwan, we have Philippine Trade Department in Taiwan
because of our trade relations. The court will issue a
commission to the head of the trade mission there to act as
deposition officer. Or any other person appointed by the judge
by court order.
A COMMISSION may be defined as an instrument issued by a
court of justice, or other competent tribunal, to authorize a
person to take depositions, or do any other act by authority of
such court or tribunal.
So, suppose I would like to take the deposition of somebody who
is staying in Afghanistan where we have no consulate but I
know of a Filipino lawyer who resides there. I will request the
court that this Filipino lawyer abroad be authorized to take the
deposition of a person there. If the court agrees, it will issue
what is known as a commission.
But suppose none at all, the court will send letters rogatory
addressed to the court of a foreign country.
Q: Define letters rogatory.
A: LETTERS ROGATORY is an instrument whereby the
foreign court is informed of the pendency of the case and
the name of the foreign witnesses, and is requested to
cause their depositions to be taken in due course of law,
for the furtherance of justice, with an offer on the party of
the court making the request, to do the like for the other,
in a similar case. (Ballentine’s Law Dict., 2nd Ed., p. 744)
It is an instrument sent in the name and by the authority of a
judge or court to another, requesting the latter to cause to be
examined, upon interrogatories filed in a case pending before
the former, a witness who is within the jurisdiction of the judge
or court to whom such letters are addressed. (Feria, 2001, p.
518)
EXAMPLE: The case is in Davao. W lives in North Korea. P
should file a motion in court for the court to issue a letters
rogatory. The judge will make a formal communication to the
court in Pyongyang to please take W’s deposition with the
following request: to mail back the answer and offer to return the
favor. If the request is ignored, there is nothing that we can do.
But normally, they comply.
So, letters rogatory is a request to the appropriate foreign
judicial authority to take the deposition of a witness who
is in their jurisdiction and please send us a copy and we
assure you in the future, if you have the same problem, we
will reciprocate.
That is international law. Deposition can be understood by the
officer in other country because it is internationally known. If
the officer in the foreign country will not do it, we have no
choice because it is only a request.
Distinctions between commission and letters rogatory
1) A commission is issued to a non-judicial foreign officer
who will directly take the testimony while
letters are issued to the appropriate judicial officer of
the foreign country who will direct somebody in said
foreign country to take down testimony.
2) The applicable rules of procedure for commission are
those of the requesting court while for
letters, are those of the foreign country requested to
act;
3) Commission is resorted to if permission of the foreign
country is given while
the latter is resorted to if the execution of the
commission is refused in the foreign country;
4) Leave of court is not necessary for commission but
necessary for letters.
The SC defined again commission and letters rogatory and
distinguished one from the other in the case of DASMARIÑAS
GARMENTS, INC. vs. REYES - 225 SCRA 622 [1993] ISSUE
#1: Distinguish commission from letters rogatory.
HELD: “A COMMISSION may be defined as an instrument
issued by a court of justice, or other competent tribunal, to
authorize a person to take depositions, or do any other act by
authority of such court or tribunal.”
“LETTERS ROGATORY, on the other hand, may be defined as
an instrument sent in the name and by the authority of a judge
or court to another, requesting the latter to cause to be
examined, upon interrogatories filed in a cause pending before
the former, a witness who is within the jurisdiction of the judge
or court to whom such letters are addressed.”
“A COMMISSION is addressed to officers designated either by
name or descriptive title, while LETTERS ROGATORY are
addressed to some appropriate judicial authority in the foreign
state.”
“Noteworthy in this connection is the indication in the Rules
that letters rogatory may be applied for and issued only after a
commission has been ‘returned unexecuted’ as is apparent from
Form 21 of the Judicial Standard Forms appended to the (1964)
Rules of Court.” So as a matter of practice, the court should
first resort to commission. You must allege that the commission
has been returned unexecuted before resorting to letters
rogatory.
ISSUE #2: Petitioner however prevent the carrying out of the
commission on the ground that the deposition-taking will take
place in a foreign jurisdiction not recognized by the Philippines
in view of its one-China policy. Can a deposition be taken in
Taiwan where the Philippines has no diplomatic relations
because of the one-Chine policy?
HELD: YES. What matters is that the deposition is taken before
a Philippine official acting by authority of the Philippine
Department of Foreign Affairs and in virtue of a commission
duly issued by the Philippine Court.
Sec. 13. Disqualification by interest. No
deposition shall be taken before a person who
is a relative within the sixth degree of
consanguinity or affinity, or employee or
counsel of any of the parties; or who is a
relative within the same degree, or employee of
such counsel; or who is financially interested
in the action. (13a, R24)
You are disqualified to act as deposition officer if you are related
to any of the parties or the lawyer. You get somebody who is not
related.
Sec. 15. Deposition upon oral examination;
notice; time and place. A party desiring to
take the deposition of any person upon
oral examination shall give reasonable
notice in writing to every other party to
the action. The notice shall state the time
and place for taking the deposition and the
name and address of each person to be
examined, if known, and if the name is not
known, a general description sufficient to
identify him or the particular class or
group to which he belongs. On motion of
any party upon whom the notice is served,
the court may for cause shown enlarge or
shorten the time. (15, R24)
There are 2 types of deposition taking:
(1) deposition upon oral examination and
(2) deposition upon written interrogatories. The former is
governed by Section 15 which is the most popular:
Question-answer and everything is recorded.
Take note that before deposition is taken, there should be notice
to the adverse party. The notice shall state the time and place
for taking the deposition and the name and address of each
person to be examined.
The last sentence, “On motion of any party upon whom the
noticed is served, the court may for cause shown enlarge or
shorten the time.” Suppose you will send me a notice that you
are going to take the deposition of a witness from February 1 to
20 morning and afternoon. Twenty days is too much. I can go
to court and complain. That should be reduced. The court may
come in and enlarge or shorten the time. The court may also do
this even if leave of court is not required.
Sec. 16. Orders for the protection of parties
and deponents. After notice is served for
taking a deposition by oral examination,
upon motion seasonably made by any
party or by the person to be examined and
for good cause shown, the court in which
the action is pending may make an order
that the deposition shall not be taken, or
that it may be taken only at some
designated place other than that stated in
the notice, or that it may be taken only on
written interrogatories, or that certain
matters shall not be inquired into, or that
the scope of the examination shall be held
with no one present except the parties to
the action and their officers or counsel, or
that after being sealed the deposition shall
 be opened only by order of the court, or
that secret processes, developments, or
research need not be disclosed, or that the
parties shall simultaneously file specified
documents or information enclosed in
sealed envelopes to be opened as directed
by the court; or the court may make any
other order which justice requires to
protect the party or witness from
annoyance, embarrassment, or oppression.
(16a, R24)
While it is true that leave of court is not necessary anymore,
you have to remember that it is related to a pending case and the
court has control over the case. That is why, while leave of court
is not necessary, any party who is aggrieved can go to court and
complain. Deposition is purely your concern provided nobody
would come here and complain. That is one of the limitations of
deposition taking.
Q: What orders may court issue for the protection of parties
and deponents; when may orders be issued; what court has
power to issue the orders?
A: After notice is served for taking a deposition by oral
examination, upon motion seasonably made by any party or by
the person to be examined and for good cause shown, the court
in which the action is pending may issue the following orders:
1) That the deposition shall not be taken;
2) That it may be taken only at some designated place
other than that stated in the notice;
3) That it may be taken only on written interrogatories;
4) That certain matters shall not be inquired into;
5) That the scope of the examination shall be held with
no one present except the parties to the action and
their officers or counsel;
6) That after being sealed the deposition shall be opened
only by order of the court;
7) That secret processes, developments, or research need
not be disclosed;
8) That the parties shall simultaneously file specified
documents or information enclosed in sealed envelopes
to be opened as directed by the court;
9) The court may make any other order which justice
requires to protect the party or witness from
annoyance, embarrassment, or oppression. (Section
16)
Sec. 18. Motion to terminate or limit examination. At
any time during the taking of the deposition, on
motion or petition of any party or of the deponent
and upon a showing that the examination is being
conducted in bad faith or in such manner as
unreasonably to annoy, embarrass, or oppress the
deponent or party, the court in which the action is
pending or the Regional Trial Court of the place
where the deposition is being taken may order the
officer conducting the examination to cease
forthwith from taking the deposition, or may limit
the scope and manner of the taking of the
deposition, as provided in section 16 of this Rule.
If the order made terminates the examination, it
shall be resumed thereafter only upon the order of
the court in which the action is pending. Upon
demand of the objecting party or deponent, the
taking of the deposition shall be suspended for the
time necessary to make a notice for an order. In
granting or refusing such order, the court may
impose upon either party or upon the witness the
requirement to pay such costs or expenses as the
court may deem reasonable. (18a, R24)
Section 16 and 18 are similar. They both talk about the power
of the court to control the deposition taking. Section 16 is about
protective orders BEFORE deposition taking. Section 18 talks
about protective orders DURING the deposition taking where the
court may stop or limit the deposition taking.
A motion to terminate or limit examination may be filed:
1.) any time during the taking of the deposition;
2.) on motion or petition of any party or of the
deponent; and
3.) upon showing that the examination is conducted
in:
a) bad faith;
b) in such manner as unreasonably to annoy,
embarrass, or oppress the deponent or party.
When the constitutional privilege against self-incrimination is
invoked by the deponent or his counsel, the trial court may stop
the examination (Isabela Sugar Co. vs. Macadaeg GR No. L-
5924, Oct. 28, 1953)
Protection Order (Section 16) and Motion to Terminate or
Limit Examination (Section 18)
1. The first provides protection to the party or witness
before the taking of the deposition, while the latter
provides such protection during the taking of the
testimony;
2. Motion for issuance of the first is filed with the court in
which the action is pending while the latter motion or
petition is filed in the court in which the action is
pending or the RTC of the place where the deposition
is being taken.
Sec. 17. Record of examination; oath; objections. The
officer before whom the deposition is to be taken shall
put the witness on oath and shall personally, or by
someone acting under his direction and in his
presence, record the testimony of the witness. The
testimony shall be taken stenographically unless the
parties agree otherwise. All objections made at the time
of the examination to the qualifications of the officer
taking the deposition, or to the manner of taking it, or
to the evidence presented, or to the conduct of any
party, and any other objection to the proceedings, shall
be noted by the officer upon the deposition. Evidence
objected to shall be taken subject to the objections. In
lieu of participating in the oral examination, parties
served with notice of taking a deposition may transmit
written interrogatories to the officers, who shall
propound them to
the witness and record the answers verbatim. (17, R24)
Q: How is deposition in oral examination taken?
A: It must be under oath. The testimony will be taken by the
stenographer. And objections must be recorded. Evidence
objected to shall be taken subject to the objections.
Q: Can the deposition officer make a ruling on the
objection/s?
A: NO. He cannot. But the objection will be noted and the
deponent must answer. Later on, if that deposition is offered as
evidence in court, the court will now rule on the objection. If the
objection is overruled, the answer as recorded remains. If the
objection is sustained, the answer as recorded is erased as if it
was never answered. That is the meaning of “evidence objected
to shall be taken, subject to the objections.”
So, the deposition officer cannot make a ruling on the objection.
It is only the judge of the court where the case is pending who
will make the ruling on it.
Take note: answers to depositions not objected to cannot be
objected to in court during the trial, UNLESS the objection
is based on a new ground which only come up after the
deposition.
Sec. 19. Submission to witness; changes; signing.
When the testimony is fully transcribed, the
deposition shall be submitted to the witness for
examination and shall be read to or by him, unless
such examination and reading are waived by the
witness and by the parties. Any changes in form or
substance which the witness desires to make shall
be entered upon the deposition by the officer with
a statement of the reasons given by the witness for
making them. The deposition shall then be signed
by the witness, unless the parties by stipulation
waive the signing or the witness is ill or cannot be
found or refuses to sign. If the deposition is not
signed by the witness, the officer shall sign it and
state on the record the fact of the waiver or of the
illness or absence of the witness or the fact of the
refusal to sign together with the reason given
therefor, if any, and the deposition may then be
used as fully as though signed, unless on a motion
to suppress under section 29 (f) of this Rule, the
court holds that the reasons given for the refusal
to sign require rejection of the deposition in whole
or in part. (19a, R24)
So after the deposition of the deponent is taken, the deposition
officer shall submit the deposition to the deponent for
examination. He may change his answers but he must state the
reason for the change. And he signs it, unless the parties by
stipulation waive the signing, or the witness is ill, or cannot be
found or refuses to sign. In the latter cases, the deposition will
be signed by the deposition officer.
Sec. 20. Certification and filing by officer. The officer
shall certify on the deposition that the witness was
duly sworn to by him and that the deposition is a
true record of the testimony given by the witness.
He shall then securely seal the deposition in an
envelope indorsed with the title of the action and
marked "Deposition of (here insert the name of
witness)" and shall promptly file it with the court
in which the action is pending or send it by
registered mail to the clerk thereof for filing. (20,
R24)
Sec. 21. Notice of filing. The officer taking the
deposition shall give prompt notice of its filing to
all the parties. (21, R24)
Sec. 22. Furnishing copies. Upon payment of
reasonable charges therefor, the officer shall
furnish a copy of the deposition to any party or to
the deponent. (22, R24)
Any party can ask for a copy of the deposition upon payment of
reasonable charges therefor.
Sec. 23. Failure to attend of party giving notice. If the
party giving the notice of the taking of a
deposition fails to attend and proceed therewith
and another attends in person or by counsel
pursuant to the notice, the court may order the
party giving the notice to pay such other party the
amount of the reasonable expenses incurred by
him and his counsel in so attending, including
reasonable attorney’s fees. (23a, R24)
Suppose the opposing counsel is from Manila was notified of the
schedule of the taking of a deposition of a witness in Davao.
And he came over. But the deposition did not proceed because
the party sending the notice did not show up. So he caused the
other party a lot of inconvenience. The Manila lawyer can file a
motion in court to ask for reimbursement of all his expenses in
this case.
Sec. 24. Failure of party giving notice to serve
subpoena. If the party giving the notice of the
taking of a deposition of a witness fails to serve a
subpoena upon him and the witness because of
such failure does not attend, and if another party
attends in person or by counsel because he expects
the deposition of that witness to be taken, the
court may order the party giving the notice to pay
to such other party the amount of the reasonable
expenses incurred by him and his counsel in so
attending, including reasonable attorney’s fees.
(24a, R24)
Suppose the opposing counsel is from Manila was notified of the
schedule of the taking of a deposition of a witness in Davao.
And he came over. The party sending the notice is also present.
But this time it is the witness who is absent because the party
sending the notice forgot to have the witness subpoenaed.
Again, the Manila lawyer can file a motion in court to ask for
reimbursement of all his expenses.
Sec. 25. Deposition upon written interrogatories;
service of notice and of interrogatories. A party
desiring to take the deposition of any person upon
written interrogatories shall serve them upon
every other party with a notice stating the name
and address of the person who is to answer them
and the name or descriptive title and address of
the officer before whom the deposition is to be
taken. Within ten (10) days thereafter, a party so
served may serve crossinterrogatories upon the
party proposing to take the deposition. Within five
(5) days thereafter, the latter may serve re-direct
interrogatories upon a party who has served cross-
interrogatories. Within three (3) days after being
served with re-direct interrogatories, a party may
serve recross-interrogatories upon the party
proposing to take the deposition. (25, R24)
The difference between a deposition upon oral examination and
written interrogatories is that in oral examination, the questions
and the answers are oral.
In deposition upon written interrogatories, the questions are
prepared already in advance and that is direct interrogatories.
And then they furnish you a copy and after receiving it, you may
also, within 10 days, prepare your questions or cross-
interrogatories and you also furnish them copies of it. And
based on that, they can ask further questions. If they are now
sufficient, the deposition officer shall compound the question
one by one but every question requires an answer.
Practically, there is no personal confrontation of the witness. If
your witness is abroad, it is very expensive for you to go there
and conduct an oral examination. So, the practical means is
only deposition upon written interrogatories.
 Sec. 26. Officers to take responses and prepare record. officer designated in the notice or that it shall not
A copy of the notice and copies of all be taken except upon oral examination. (28, R24)
interrogatories served shall be delivered by the
party taking the deposition to the officer So the protections provided under Sections 15, 16 and 18 are
designated in the notice, who shall proceed also applicable in oral examinations.
promptly, in the manner provided by sections 17,
19 and 20 of this Rule, to take the testimony of
the witness in response to the interrogatories and Are the mistakes in deposition taking fatal?
to prepare, certify, and file or mail the deposition,
attaching thereto the copy of the notice and the Sec. 29. Effects of errors and irregularities in
interrogatories received by him. (26, R24) depositions.

Sec. 27. Notice of filing and furnishing copies. When a
deposition upon interrogatories is filed, the officer
taking it shall promptly give notice thereof to all
the parties, and may furnish copies to them or to
the deponent upon payment of reasonable charges
therefor. (27, R24)
Sec. 28. Orders for the protection of parties and
deponents. After the service of the interrogatories
and prior to the taking of the testimony of the
deponent, the court in which the action is
pending, on motion promptly made by a party or a
deponent, and for good cause shown, may make
any order specified in sections 15, 16 and 18 of
this Rule which is appropriate and just or an order
that the deposition shall not be taken before the
not waived by failure to make them before or during the taking of the
deposition, unless the ground of the objection is one which might have
been obviated or removed if presented at that time.
(a) As to notice.- All errors and irregularities in the
notice for taking a deposition are waived unless
written objection is promptly served upon the
party giving the notice.
(b) As to disqualification of officer.- Objection to
taking a deposition because of disqualification
of the officer before whom it is to be taken is
waived unless made before the taking of the
deposition begins or as soon thereafter as the
disqualification becomes known or could be
discovered with reasonable diligence.
(c) As to competency or relevancy of evidence.-
Objections to the competency of a witness or
the competency, relevancy, or materiality of
testimony are

(d) As to oral examination and other particulars.- Errors and irregularities occurring at the oral examination in
the manner of taking the deposition, in the form of the

questions or answers, in the oath or affirmation, or in the conduct of the

parties and errors of any kind which might be obviated, removed, or
cured if promptly prosecuted, are waived unless reasonable objection
thereto is made at the taking of the deposition.

(e) As to form of written interrogatories.- Objections to

the form of written interrogatories submitted under
sections 25 and 26 of this Rule are waived unless served in writing upon
the party propounding them within the time allowed for serving
succeeding cross or other interrogatories and within three (3) days after
service of the last interrogatories authorized.

(f) As to manner of preparation.- Errors and irregularities

in the manner in which the testimony is transcribed or

the deposition is prepared, signed, certified, sealed,

indorsed, transmitted, filed, or otherwise dealt with by the officer under

sections 17, 19, 20 and 26 of this Rule are waived unless a motion to
suppress the deposition
or some part thereof is made with reasonable
promptness after such defect is, or with due diligence
might have been, ascertained. (29a, R24)

So, if you will notice, majority of all the errors are waived if objection thereto is not promptly
made.
 Rule 24
DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
TWO TYPES OF DEPOSITION TAKING:
1) Deposition Pending Action (Rule 23) and
2) Deposition Before Action or Pending Appeal (Rule 24)
In Rule 23, you take a testimony or deposition of people in
relation to a pending case. There is already a pending case in
court, so everything is based on a pending action.
The next rule (Rule 24) is deposition before a case is filed. That
is why it is called Depositions Before Action. Actually, the
concept of depositions before action is not really new. This is
also found in the Rules prior to 1997 but was found in another
rule. It was called
Perpetuation of Testimony (Rule 134 of the old Rules of Court).
What the new rules did was simply to transfer Rule 134 to Rule
24.
A deposition before action and a deposition pending appeal
are referred to as perpetuation of testimony or perpetua
rei memoriam because their objective is to perpetuate the
testimony of a witness for future use.
Depositions under this Rule are also taken conditionally to be
used at the trial only in case the deponent is not available.
Depositions under this Rule do not prove the existence of any
right or facts of the facts which they relate, as it can be
controverted at the trial in the same manner as though no
perpetuation of testimony was ever had.
However, in the absence of any objection to its taking, and even if
the deponent did not testify at the hearing, the perpetuated
testimony constitutes prima facie proof of facts referred to in the
deposition.
For example, the petitioner has a cause of action which has not
yet accrued. In such a case, inasmuch as he cannot bring the
action until the cause of action accrues, he may perpetuate his
testimony or that of another person (Feria, 2001 p. 534)
EXAMPLE: Suppose there is a case which I would like to file
against B. But for the moment I cannot file it yet. I intend to
file a case against him. So there is an expected case between us
in the future only there are certain things that I still have to do.
But if I file a case against B, I have some witnesses who are all
ready like A and C. But the trouble is, I learned lately that A
will die soon. He has cancer and C will have to leave for abroad,
never to come back. Definitely, if I will file the case, there are no
more witnesses available.
Q: Is there a way of taking testimony or deposition in advance
even before wala pang kaso?
A: YES, by applying Rule 24. I will file a petition before the court
known as Petition to Perpetuate the Testimony of A and C. Well,
even if there is as yet no case, I will just file a petition under
Rule 24. If I can prove really that the testimony would be
relevant or important the court will issue an order allowing me
to take deposition in advance.
Section 1. Depositions before action; petition.
A person who desires to perpetuate his own
testimony or that of another person
regarding any matter that may be
cognizable in any court of the Philippines,
may file a verified petition in the court of
the place of the residence of any expected
adverse party.
(1a, R134)
A petition may be filed by any person:
1) who wants to perpetuate his own testimony; or
2) who wants to perpetuate the testimony of another
person.
It may be availed only in civil cases and not in criminal
cases.
Q: Where will you file it?
A: In the court of the place of the residence of any expected
adverse party because there is still no case. So you have to file
an independent petition under Rule 24
Sec. 2. Contents of petition. The petition shall be
entitled in the name of the petitioner and shall
show: (a) that the petitioner expects to be a party
to an action in a court of the Philippines but is
presently unable to bring it or cause it to be
brought; (b) the subject matter of the expected
 action and his interest therein; (c) the facts which
he desires to establish by the proposed testimony
and his reasons for desiring to perpetuate it; (d) the
names or a description of the persons he expects
will be adverse parties and their addresses so far as
known; and (e) the names and addresses of the
persons to be examined and the substance of the
testimony which he expects to elicit from each,
and shall ask for an order authorizing the
petitioner to take the depositions of the persons to
be examined named in the petition for the purpose
of perpetuating their testimony. (S2, R134)
The petition shall be verified and shall be filed in the place of
residence of any expected adverse party. It shall contain the
matters set forth in Sec. 2 of Rule 24.
Sec. 3. Notice and service. The petitioner shall serve a
notice upon each person named in the petition as an
expected adverse party, together with a copy of the
petition, stating that the petitioner will apply to the
court, at a time and place named therein, for the order
described in the petition. At least twenty (20) days
before the date of the hearing, the court shall cause
notice thereof to be served on the parties and
prospective deponents in the manner provided for
service of summons. (3a, R134)
1) The petitioner shall serve a notice upon each person
named in the petition as an expected adverse party,
together with a copy of the petition stating that the
petitioner will apply to the court, at the time and place
stated therein;
2) At least 20 days before the date of hearing, the court
shall cause notice thereof to be served on the parties
and prospective deponents in the manner provided for
in the service of summons.
Sec. 4. Order and examination. If the court is satisfied
that the perpetuation of the testimony may prevent
a failure or delay of justice, it shall make an order
designating or describing the persons whose
deposition may be taken and specifying the subject
matter of the examination and whether the
depositions shall be taken upon oral examination or
written interrogatories. The depositions may then
be taken in accordance with Rule 23 before the
hearing. (4a, R134)
If the petition is granted, the court will now allow the deposition
of these people to be taken and they are taken simply by
following Rule 23.
Sec. 5. Reference to court. For the purpose of
applying Rule 23 to depositions for perpetuating
testimony, each reference therein to the court in
which the action is pending shall be deemed to
refer to the court in which the petition for such
deposition was filed. (5a, R134)
Rule 23 says, “the court in which the action is pending.” But
there is still no pending action here. So it automatically refers
to the court in which the petition for the perpetuation was filed.
Sec. 6. Use of deposition. If a deposition to
perpetuate testimony is taken under this Rule, or
if, although not so taken, it would be admissible in
evidence, it may be used in any action involving
the same subject matter subsequently brought in
accordance with the provisions of sections 4 and 5
of Rule 23. (6a, R134)
If deposition is taken under this Rule, it may be used in any
action involving the same subject matter subsequently brought.
Q: How do you use the perpetuation of testimony?
A: The same uses of an ordinary deposition – for impeachment,
for any other purpose like the witness is already dead – the
same under Rule 23. So the rule under Rule 23 is also
applicable to Rule 24.
Sec. 7. Depositions pending appeal. If an appeal has
been taken from a judgment of a court, including
the Court of Appeals in proper cases, or before the
taking of an appeal if the time therefor has not
expired, the court in which the judgment was
rendered may allow the taking of depositions of
witnesses to perpetuate their testimony for use in
the event of further proceedings in the said court.
In such case the party who desires to perpetuate
the testimony may make a motion in the said
court for leave to take the depositions, upon the
same notice and service thereof as if the action
was pending therein. The motion shall state (a) the
names and addresses of the persons to be
examined and the substance of the testimony
which he expects to elicit from each; and (b) the
reason for perpetuating their testimony. If the
court finds that the perpetuation of the testimony
is proper to avoid a failure or delay of justice, it
may make an order allowing the depositions to be
taken, and thereupon the depositions may be taken
and used in the same manner and under the same
conditions as are prescribed in these Rules for
depositions taken in pending actions. (7a, R134)
Depositions are taken pending appeal with the view to their
being used in the event of further proceedings in the court of
origin or appellate court.
For example, a party may perpetuate the testimony of a witness
which was objected by the adverse party and ruled out by the
court. If the appellate court should reverse the decision/order of
the lower court, it could admit the deposition as additional
evidence or remand the case back to the lower court for such
admission in accordance with Sections 4 and 5 of Rule 23 (Feria
2001, p. 537)
Q: What is deposition PENDING APPEAL?
A: Obviously, there is a case already on appeal. So how do you
apply Rule 24 under this kind of situation?
EXAMPLE: There is a case between K and B. K lost. After he
received a copy of the decision, he discovered a material witness
whom he failed to present. So this is a newly discovered
evidence (NDE). Had K known of his existence, he would have
won the case. So, K will file a motion for new trial based on
NDE. If his motion is granted, there will be new trial.
But, if his motion is denied, K will appeal. While waiting for the
decision of the court, the witness tells him that he will be
leaving for Afghanistan and will come back no more. So, K will
use Section 7. He will file a motion asking to take the deposition
of a witness pending appeal in the event that his motion for new
trial is granted, because the witness has to go and cannot wait
for the new trial.
So in the event that if I win the appeal, the case will go back. I
can present the testimony because by that time he may already
be dead. In effect, para na ring deposition before appeal. So it
is also perpetuating the testimony of a possible witness, in the
event the appeal is decided in your favor. That’s why it is called
deposition pending appeal.
Rule 25
INTERROGATORIES TO PARTIES
Q: Going back to Rule 23, what are the modes of deposition
taking?
A: The following:
1) Deposition upon oral examination; and 2)
Deposition upon written interrogatories.
Purpose of written interrogatories:
To elicit facts from any adverse party (answers may also be used
as admissions of the adverse party).
Written interrogatories and the answers thereto must both be filed
and served. Hence, the answers may constitute as judicial
admissions (Sec. 4, R 129)
Rule 25 should not be confused with Rule 23, Section 25 –
or Deposition Upon Written Interrogatories.
In written interrogatories under Rule 23, questions are already
prepared beforehand and they are going to be submitted to a
deposition officer who will propound the questions to the
deponent and record the answers under oath.
EXAMPLE is, if you want to take the deposition of somebody
abroad through a deposition officer abroad. Of course, it would
be very expensive to go there and conduct an oral examination.
So, the best thing is to resort to deposition upon written
interrogatories under Rule 23.
That is not the same as interrogatories to parties under this rule.
We are going to distinguish one from the other later.
Interrogatories mean written questions. EXAMPLE: I file a case
against Frudo. Frudo filed an answer and of course, he has his
affirmative defenses which are statements of ultimate facts.
Alang details, no evidentiary facts. But I am interested to find
out what are these evidentiary facts I will write a letter
addressed to Frudo under Rule 25 and direct him to answer the
following interrogatories:
According to your answer, you already paid, please answer
the following questions:
Q1: When did you pay?
Q2: Place?
Q3: Who was present when you paid?
Or
Q1: Mr. Frudo, you have been in continuous possession of
this piece of land for 30 years, would you kindly narrate the
improvements that you introduced in the property?
Q2: What year did you introduce them?
Q3: Who are your witnesses? etc…
Now, under Rule 25, you are obliged to answer me also in
writing. Then you sign your answer and you swear to the truth
of it. So I will ask you directing a question – How will you prove
this? Who are your witnesses? I will compel you to reveal the
evidentiary facts. And that process is called written
interrogatories to parties. Di para na ring deposition?
I can also ask the same questions through deposition taking
under Rule 23. Why do I have to resort to Rule 25? The trouble
is under Rule 23, I need a deposition officer and I will have to
course everything to him. In Rule 25, there is no need of a
deposition officer. I will ask you a question and you will answer
me. Both are done directly. So, less expensive.
But take note, under Rule 25, you can only ask questions to
your opponent. You cannot ask questions to a stranger. Unlike
in Rule 23, you can take the deposition of any person whether a
party or not. In Rule 25, the questioning is direct. Plaintiff
questions the defendant, defendant questions the plaintiff. So,
these are the differences between deposition upon written
interrogatories and interrogatories to parties.
Q: Distinguish INTERROGATORIES TO PARTIES (Rule 25) from
DEPOSITION UPON WRITTEN INTERROGATORIES (Rule 23).
A: The following are the distinctions:
1) (Procedure) 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) (Procedure) 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) (Deponent) 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.
4) (Scope) Under deposition upon written
interrogatories (Sec. 25 R 23), there is direct, cross,
redirect, re-cross examination but under this rule
there is only one set of interrogatories.
5) (Period to answer) Under Rule 23, there is no fixed time
while under this rule the party concerned has 15 days
to answer unless extended or reduced by the court.
SEC. 1. Interrogatories to parties; service, thereof –
Under the same conditions specified in section 1 of
Rule 23, any party desiring to elicit material and
relevant facts from any adverse parties shall file
and serve upon the latter written interrogatories to
be answered by the party served or, if the party
served is a public or private corporation or a
partnership or association, by any officer thereof
competent to testify in its behalf.
Q: Is leave of court necessary to apply Rule 25? Do I have
to apply for a court permission before I can send
interrogatories to parties?
A: IT DEPENDS. The Rule says “under the same conditions
specified in Section 1 of Rule 23.” So the manner of resorting to
interrogatories are done under the same conditions for taking of
depositions.
1) Without leave of court if an answer has already been
served:
2) With leave of court if no answer has been served,
although the court has already acquired jurisdiction over
the defendant. That is the same under the rule on
deposition. The reason is that, at that time, the issues
are not yet joined and the disputed facts are not yet
clear.
SEC. 2. Answer to Interrogatories - The interrogatories
shall be answered fully in writing and shall be signed
and sworn to by the person making them. The party
upon whom the interrogatories have been served
shall file and serve a copy of the answers on the party
submitting the interrogatories within fifteen (15)
days after service thereof, unless the courts, on
motion and for good cause
shown, extends or shortens the time. (2a)
The interrogatories shall be answered fully in writing and shall
be signed and sworn to by the person making them.
Answers cannot be made by an agent or attorney; answers
not
made by the parties are nullities (Herrera vol. 2 p. 44)
A judgment by default may be rendered against a party who fails
to answer written interrogatories.
SEC. 3. Objections to Interrogatories – Objections to
any interrogatories may be presented to the court
within ten (10) days after service thereof, with
notice as in case of a motion; and answers shall be
deferred until the objections are resolved, which
shall be at as early a time as is practicable. (3a)
Q: Suppose you do not want to answer my questions because
you believe my questions are improper, you want to object to my
questions, what is your remedy?
A: You go to the court where the case is pending and object. Let
the court decide whether you will have to answer or not.
SEC. 4. Number of Interrogatories - No party
may, without leave of court, serve more
than one set of interrogatories to be
answered by the same party. (4)
Only one set of interrogatories by the same party is allowed.
Leave of court is necessary for succeeding sets of interrogatories.
It means, I send to you interrogatories and I thought tapos na.
Then I remembered kulang pa pala iyon, so another set – ahh
hindi na pwede! Dapat once lang unless the court allows me to
send to you another set.
So, as a general rule, when you send questions to your
opponent, you better compile. Lahat ng gusto mong itanong,
itanong mo na because no party is given, as a rule, the privilege
of securing more than one set of interrogatories.
SEC. 5. Scope and Use of Interrogatories -
Interrogatories may relate to any matters
that can be inquired into under section 2
of Rule 23, and the answers may be used
for the same purposes provided in section
4 of the same Rule (5a)
Scope of the interrogatories
Q: What kind of questions can you ask under Rule 25 to your
opponent?
A: The same questions that you can ask in Rule 23 section 2:
1.) anything that is related to the claim or defense provided
it is relevant; and
2.) it is not privileged.
Use of the answers to interrogatories
Q: Suppose there are already answers to the interrogatories
given by your opponent, how do you use 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.
Since answers to interrogatories may be used for the same
purposes as depositions, they may also be the basis of a
summary judgment under Rule 35.
SEC. 6. Effect of Failure to serve written
interrogatories – Unless thereafter allowed
by the court for good cause shown and to
prevent a failure of justice, a party not
served with written interrogatories may
not be compelled by the adverse party to
give the testimony in open court, or to
give a deposition pending appeal (n)
This is entirely a new section. It has no counterpart in the old
rules. Now, this is a very controversial section. Actually, you will
not understand this until you study Evidence where you can
compel the adverse party to testify. This is actually related to
Rule 132, Sec. 10 (e) of the Rules of Evidence.
Unless a party has been served written interrogatories, he may
not be compelled by the adverse party:
1. to give testimony in open court; or
2. Give a deposition pending appeal.
The only exception is when the court allows it for good cause
shown and to prevent a failure of justice.
Note: The sanction adopted by the Rules is not one of
compulsion in the sense that the party is being compelled
to avail of the discovery mechanics, but one of negation by
depriving him of evidentiary sources which would otherwise
have been accessible to him.
This is related to the rule on Evidence particularly Rule 132,
Section 10 [e]:
Rule 132, Sec. 10. Leading and misleading
questions. – A question which suggests to
the witness the answer which the
examining party desires is a leading
question. It is not allowed except:
 xxxxxxx

xxxxx

(e) of a witness who is an adverse party or

an officer, director, or managing agent of a
public or private corporation or of a
partnership or association which is an
adverse party.

xxxxxx

Rule 132, Section 10 [e] is the provision in the Rules which

authorizes a party to call the adverse party to the witness stand.
A party may call the adverse party to the witness stand and
interrogate him by leading questions – as an element of
surprise. I can call my opponent to the witness stand and he
cannot refuse.

I can conduct direct examination on the adverse party and I am

entitled under the Rules to ask leading questions as if he is
under cross-examination because he is the adverse party. He is
not actually my witness. The purpose here is to actually secure
admissions from him while he is in the witness stand because Rule 26
anything that he says against me does not bind me even if I
were the one who called him to the witness stand. But anything ADMISSION BY ADVERSE PARTY
he might say that is against himself binds him.
Rule 26 is also known as REQUEST FOR ADMISSION.
Under Section 6, if I intend during the trial to call him to the
Admission by adverse party or request for admission is similar
witness stand, I am obliged to send him ahead written
to interrogatories. You send questions to your opponent and
interrogatories. I have to follow Rule 25. Now, if I do not send
he’s bound to answer in writing within 15 days under oath but
written interrogatories to him, then I have no right to call him to
the framing of the questions are different.
the witness stand. That is why Section 6 is a very radical
provision.
In a request for admission, you are requiring the opposing party
to admit the truth or authenticity of certain documents. For
So, if I am the lawyer of a party, then binigla mo ako dahil there
example: “Do you admit the genuineness of the documents
is really that element of surprise as it has happened several
marked as Annex A?” We are talking here of DOCUMENTS
times before. The lawyer is caught by surprise when the
which are NOT
opposing party says that it would present the adverse party to
ACTIONABLE because if the document is actionable then it has
the witness stand. The lawyer is then caught off-guard as he
to be pleaded properly.
has not talked to his client yet.

In other words, if I have 20 documents, to find out whether you

Ngayon, may panlaban ka na. Pag-binigla ka, you can counter it
will admit them or not, I will send you a copy and ask, “Do you
by arguing that written interrogatories were not sent under Rule
admit the genuineness of this? Do you admit the truth?”
25. Hence, you can object to the opposing counsel’s motion to
call your client to the witness stand.
So, the main difference between Rule 26 and Rule 25 is in the
framing of the question. If the question is framed in such a way
This practically compels the lawyers to avail of the modes of
that the premise is laid down and I ask you whether or not you
discovery because if you will not compel him, chances are
admit, then the question is proper under Rule 26. BUT if the
Filipino lawyers do not make much use of the modes of
question if framed in such a way that it is not answerable by yes
discovery. So now, if the opposing counsel suddenly sends
or no, then apply Rule 25.
interrogatories to you, the he must be planning to call you in the
witness stand later.
Example: Suppose my question is like this – “who was with
you?” That is proper under Rule 25. Pero sabi ko, “A and B
were with you, admitted?” That is Rule 26. Kaya nga the way
the questions were framed determines wohat kind of mode of
discover are you going to apply.

Section 1. Request for admission. At any

time after issues have been joined, a party
may file and serve upon any other party a
written request for the admission by the
latter of the genuineness of any material
and relevant document described in and
exhibited with the request or of the truth
of any material and relevant matter of fact
set forth in the request. Copies of the
documents shall be delivered with the
request unless copies have already been
furnished. (1a)
Purpose of written request for admission:
To expedite trial and relieve the parties of the costs of proving
facts which will not be disputed on trial and the truth of which
can be ascertained by reasonable inquiry.
When request may be made:
At any time after the issues have been joined (after the
responsive pleading has been served).
Q: So, what will you request the other party to admit?
A:
1) The genuineness of any material and relevant
document described in and exhibited with the request
and/or of
2) the truth of any material and relevant matter of fact set
forth in the request orin the request; or
3) a matter of fact not related to any documents may be
presented to the other party for admission or denial.
Q: When do you apply this mode of discovery?
A: “At anytime after issues have been joined.” Meaning, there is
already an answer.
Q: Is LEAVE OF COURT required under Rule 26?
A: It is totally UNNECESSARY but a request for admission
under Rule 26 can only be started according to Section 1, “At
any time after issues have been joined.” So it presupposes that
there is already an answer. Unlike in interrogatories, you can do
it even before an answer is served provided there is leave of
court. This is the second difference between Rule 25 and Rule
26.
Request for admission and actionable document
The former is proper when the genuineness of an evidentiary
document is sought to be admitted. If not denied under oath, its
genuineness is deemed impliedly admitted. Essentially it is a
mode of discovery; while the latter must be attached to the
complaint or copied therein. Its genuineness and due execution
is deemed impliedly admitted unless specifically denied under
oath, by the adverse party.
Sec. 2. Implied admission. Each of the
matters of which an admission is requested
shall be deemed admitted unless, within a
period designated in the request, which
shall not be less than fifteen (15) days after
service thereof, or within such further time
as the court may allow on motion, the
party to whom the request is directed files
and serves upon the party requesting the
admission a sworn statement either
denying specifically the matters of which
an admission is requested or setting forth
in detail the reasons why he cannot
truthfully either admit or deny those
matters.
Objections to any request for admission
shall be submitted to the court by the
party requested within the period for and
prior to the filing of his sworn statement
as contemplated in the preceding
paragraph and his compliance therewith
shall be deferred until such objections are
resolved, which resolution shall be made as
early as practicable.(2a)
Implied admission. Each of the matters of which an
admission is requested shall be deemed admitted unless,
within a period designated in the request, which shall not
be less than fifteen (15) days after service thereof, or within
such further time as the court may allow on motion, the
party to whom the request is directed files and serves upon
the party requesting the admission a sworn statement
either denying specifically the matters of which an
admission is requested or setting forth in detail the reasons
why he cannot truthfully either admit or deny those
matters.
The remedy of the party, in this case, is to file a motion to be
relieved of the consequences of the implied admission. The
amendment of the complaint per se cannot set aside the legal
effects of the request for admission since its materialty has not
been affected by the amendment.
Q: So, if I send to you a request for admission, what is your
duty?
A: Within 15 days, you must answer my request under oath,
whether admitting or denying my request. Take note, ‘under
oath’ also, parang interrogatories.
Q: Suppose you ignore my request within 15 days. You did not
do anything. You did not bother to file any answer to my request
for admission. What is the effect of failure to answer the
request?
A: You are deemed to have admitted. There is an implied
admission of all the things that I asked you to admit. Section 2
says, each of the matters of which an admission is requested
shall be deemed admitted unless you file your answer to the
request. Meaning, if you will not answer my request, under the
law, all the matters which I request you to admit are deemed
impliedly admitted. That is the penalty for not bothering to file
your reply under Rule 26.
BAR QUESTION: A sends a request for admission to B and B
made an admission. However, during the trial, A did not offer in
evidence the answers to the request. Can the court take judicial
notice of the answers?
A: Based on THE OLD RULES, it would seem NO because a
request for admission is purely an extrajudicial matter between
the parties. But if the same question is asked NOW, the answer
would be YES, because under the NEW RULES, you are already
required to file and serve. Therefore the court may now take
judicial notice because it already forms part of the record.
BAR QUESTION: Suppose, I will file a case against you and I
will attach to my complaint a Promissory Note – actionable
document. In your answer, you deny the genuineness and due
execution of the Promissory Note. Meaning, as a defense you
allege that your signature is forged. There was a proper denial
because it was under oath.
After a week, I will now send to you a request for admission
under rule 26, where I attach the same promissory note, and I
will ask you, “Do you admit the genuineness and due execution
of this promissory note?” Now, when you receive the request,
you ignore it because you already denied the promissory note
under oath in your answer. So you argue, “Why do I have to
deny it again under Rule 26 when I already denied it under Rule
8? There is no need for me to deny it all over again.” I can also
argue, “Even if you denied it under Rule 8, under Rule 26 you are
obliged to deny it all over again. Otherwise, you are deemed to
have admitted the genuineness and due execution of the
document.” Who is right between the two of us?
ANSWER: There was an old decided case where the SC seemed
to imply that even if the matter is already denied in your
pleading, if it is reiterated under Rule 26 (request for admission) it
has to be denied all over again otherwise you’re impliedly
admitting it. To my mind, that is already answered in the 1988
case of:
PO vs. CA- 164 SCRA 668
FACTS: There was an allegation made by the plaintiff in his
complaint which allegation was specifically denied in the
answer. Plaintiff asked the same question in a request for
admission. Inulit niya ang tanong and this time the defendant
did not answer the request for admission.
Now, under Section 2, if the party as requested to make an
admission does not make so within 15 days, the matter
requested is deemed admitted - impliedly admitted - that is the
penalty.
If you do not want to respond to my request, everything that I
requested will be impliedly admitted. Now, you already denied
the allegation in my complaint specifically in your answer, I
repeated it in a request for admission and this time, you failed
to respond.
Now, under Rule 26, the plaintiff can claim, “Well, since you did
not respond, then it is already deemed admitted.” Suppose the
other party would say, “No, I already denied that in my answer.
There is no obligation for me to the deny the same all over again
under Rule 26.”
ISSUE: Is there a need for another denial in the request for
admission?
HELD: NO NEED. When a matter is already effectively denied in
the pleading, then there is no need to ask it all over again. In
other words, what has already been denied is denied and
therefore you cannot say that for failure to deny it is already
deemed admitted.
“A request for admission is not intended to merely reproduce or
reiterate the allegations of the requesting party’s pleading but
should set forth relevant evidentiary matters of fact, or
documents described in and exhibited with the request, whose
purpose is to establish said party’s cause of action or defense.
Unless it serves that purpose, it is pointless, useless, and a
mere redundancy.”
If we have to answer the same question under the ruling in PO,
it would seem that the defendant is correct. Why do I have to
deny, if I have already denied it? So, there is no implied
admission.
Sec. 3. Effect of admission. Any admission
made by a party pursuant to such request
is for the purpose of the pending action
only and shall not constitute an admission
by him for any other purpose nor may the
same be used against him in any other
proceeding.(3)
Use: An admission under this Section is for the purpose of the
pending action only and cannot be used in other proceedings.
Section 3 is for the purpose of evidence. An admission made by
a party pursuant to a request for admission is only good for that
case. It cannot be used in any other case or proceeding. It limits
therefore the effectivity of an admission. It is only valid for the
pending case.
Sec. 4. Withdrawal. The court may allow
the party making an admission under this
Rule, whether express or implied, to
withdraw or amend it upon such terms as
may be just. (4)
Admissions made, expressly or impliedly
(failure or refusal to respond) are
nevertheless binding.
Q: Is the party admitting allowed to withdraw, change or
amend his previous admissions?
A: YES, but with leave of court.
Sec. 5. Effect of failure to file and serve
request for admission. Unless otherwise
allowed by the court for good cause shown
and to prevent a failure of justice, a party
who fails to file and serve a request for
admission on the adverse party of
material and relevant facts at issue which
are, or ought to be, within the personal
knowledge of the latter, shall not be
permitted to present evidence on such
facts. (n)
This is one of the more controversial sections in the new Rules.
This is a mandatory mode of discovery. “A party who FAILS to
FILE and SERVE a request for admission on the adverse party of
material and relevant facts in issue which are or ought to be
within the personal knowledge of the latter shall not be permitted
to present evidence on such facts.” This is A VERY HARSH RULE
– a new rule which again shows the intention of the law to
compel the lawyers to avail of the modes of discovery.
An example of the section: Let’s assume that there is a fact
which I want to prove and I know that you know but I do not
know whether you’ll admit it or not. Under the rules, I have to
send you a request for admission to confirm it.
Suppose I do not send you a request because anyway there are
very few lawyers who do that. So, I did not send a request and
then during the trial, I will just try to prove it. Then the adverse
party says, “Teka muna, what are you trying to prove? You
should have sent me a request for admission.” And then you say
that you forgot to send one.
So, the adverse party here objects because he argues that I
cannot present evidence to prove something which he could
have admitted in a request for admission. This is something
which the party could have admitted had I resorted to a request
for admission under Rule 26, and since I did not, then he can
now prevent me from proving it.
Hence, this is a very dangerous provision. Though, we still have
to see a judge applying this rule because it is practically placing
the other party in estoppel. Basically the argument will go like
this:
NASTY MACK: “Why did you not send me a request for
admission? Had you sent me, I would have easily admitted that
but since you did not, then I will bar you form proving it.”
(practically every fact aimed to be proved can be objected to
BEN-DEATHA: “How could I have known what facts you will
admit and not admit?”
NASTY MACK: “Precisely, that is why you should have sent me
a copy, STUPID!”
So, even if you are correct, the judge may say that it’s too much.
Even if you invoke it, the judge may still say that there will be
failure of justice if he will apply it. With more reason, no judge
will use it if you will not invoke it. It is practically barring the
party from proving his case. That is why even if you invoke this,
judges are very careful not to apply this. So, you have to invoke
this at least, to call the attention of the judge though the judge
may still refuse because there might be a failure of justice.

The only purpose I see for these is to compel the parties and
See how dangerous this provision is? I can bar you from proving
lawyers to avail of the Modes of Discovery.
anything simply because you failed to avail of the modes of
discovery. This was not found in the Old Rules.
Let’s go to some interesting cases on request for admission.
Generally, matters which are objectionable should be pushed by
the party concerned or affected. That is because it is for his REBONERIA vs. CA – 216 SCRA 627 [1992]
benefit. I do not think it involves public policy that’s why even if
you invoke it, the court may still refuse to apply it. Look at the FACTS: A request for admission was sent by a party (Plaintiff) to
opening of the first paragraph: “Unless otherwise allowed by the the lawyer of the defendant (because anyway, under Rule 13,
court for good cause and to prevent a failure of justice.” So that’s the general rule is that everything should be coursed through
an exception. the
lawyer) So, the request was sent to the lawyer. Since there was no response, can there be an implied
admission?

HELD: NONE. In a request for admission, since we are questioning

the party, we should address it to him, and not to the lawyer. A

request for admission should be served upon the party, not his

counsel. The general rule under Rule 13 cannot apply where the law expressly provides that
notice must be served upon a definite person.

In such cases, service must be made directly upon the person mentioned in the law and upon no other in
order for the notice to
be valid.

But the case of REBONIA should not be confused with the case of

PSCFC FINANCING CORP. vs. CA - 216 SCRA 838 [1992]

FACTS : A request for admission was sent to a party. The party told his lawyer to answer the
request. So, it was the lawyer who answered the request for admission under oath.

ISSUE: Was there an effective answer or reply to the request for

admission as it was the lawyer who made the reply ?

HELD: YES, because under the Rules, a client can always act

through the lawyer and he is bound by the actuations of his lawyer. This is practically the rule
on Agency. If we will say that the lawyer has no authority even if ordered by the client, then we
are altering the Rules on Agency and also the rule that the lawyer can always act in behalf of
his client.

And assuming that a lawyer is not authorized to make the

complaint, then why is the adverse party the one complaining? It is

the client who has the authority to impugn the acts of his lawyer and not the adverse party.
Timang!!

Principles to remember in the case of REBONERIA and PSCFC:

1.) A request must be directed to the party whose admission is sought. Service of request
to any other person is not a valid request at all.
2.) A request must always be directed to the party whose admission is sought, but the
latter may delegate to his lawyer the right to answer the request. Such is valid so long
as there is a valid authorization.
 Rule 27
PRODUCTION OR INSPECTION OF DOCUMENTS OR
THINGS
SEC. 1. Motion for Production or inspection;
order – Upon motion of any party showing
good cause therefore, the court in which
an action is pending may (a) Order any
party to produce and permit the
inspection and copying or photographing
by or on behalf of the moving party, of any
designated documents, papers, books,
accounts, letters, photographs, objects or
intangible 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 (b) Order any party to permit
entry upon designated land or other
property in his possession for control for
the purpose of inspecting, measuring,
surveying or photographing the property
or any designated relevant object or
operation thereon. The order shall specify
the time, place and manner of making the
inspection and taking copies and
photographs, and may prescribe such
terms and conditions as are just (1a)
This Rule applies only to a pending action and the things or
documents subject of the motion must be only those within the
possession, control, or custody of a party.
Production of documents affords more opportunity for
discovery than a subpoena duces mecum as will be shown later
when the two are distinguished.
However, the rule is not intended for use as a dragnet or any
fishing expedition.
The documents to be produced:
1) should not be privileged;
2) should constitute or contain evidence material to any
matter involved in the action, and which are in his (the
party ordered's possession, custody, or control).
In a petition for the production of papers and documents they
must be sufficiently described and identified. Otherwise, the
petition cannot prosper.
This mode of discovery does not authorize the opposing party or
the clerk or other functionaries of the court to distrain the
articles or deprive the person who produced the same of their
possession, even temporarily (Tamda vs. Aldaya, L-13423, Nov.
23, 1959) EXAMPLE: Harry Potter sued Voldemortz. The case
involves accounting. Voldemortz is in possession of several
invoices and receipts which he would present in trial. Harry
wants to get hold of and inspect all these documents. Since
these are not actionable documents, Voldemortz is not required to
show or include them in the pleadings. No need to plead. So,
Harry want to see these books, photographs, accounts, objects
which Harry know Voldemortz will present during the trial. If
Harry will ask Voldemortz to show these things, I don't think
Voldemortz will accommodate Harry.
Q: In the above example, what is the remedy of Harry?
A: Harry will apply Rule 27 by filing a motion in court stating
that Voldemortz is in the possession of such documents and
Harry would like to see, inspect or have them copied, provided
they are relevant and not privileged. And the court will issue an
order directing Voldemortz on a specified time on place to bring
them for purposes of inspection, survey, copying, photocopying,
etc. Voldemortz have no choice but to show Harry all these
objects.
EXAMPLE: Harry sued Voldemortz for recovery of ownership of
land. Voldemortz in possession and such is in a position to
enable to properly describe the land and all its improvements.
Harry would like to see the property to inspect and survey the
same.
Q: What is Harry’s remedy?
A: File a motion in court to permit him (Harry) to enter the land
for purposes of inspecting, measuring, surveying or
photographing the property. And the court will issue an order
specifying the time, place and the manner of inspection. Now,
Harry will have an access to the documents, things, land, etc.
which are under Voldemortz’s control or possession.
Q: Give the requisites of production or inspection of
documents or things (Rule 27)?
A: The following are the requisites:
1) A motion (leave of court) must be filed by a party
showing good cause therefor;
2) Notice of the motion must be given to all other parties;
3) The motion must sufficiently describe the document or
thing sought to be produced or inspected;
4) The document or thing sought to be produced or
inspected must constitute or contain evidence material
to the pending action;
 5) The document or thing sought to be produced or 637)
inspected must not be privileged; and
6) The document or thing sought to be produced or NOTE: Rule 27 is not the same as Rule 21 on subpoena
inspected must be in the possession of the adverse duces tecum. Therefore, the next question is:
party or, at least, under his control. (Section 1, Rule
27; Lime Corp. vs. Moran, 59 Phil. 175; Alvero vs.
Dizon, 76 Phil.
Q: Distinguish Production or Inspection of Documents or Things under Rule 27 from
Subpoena duces tecum under Rule 21.

A: The following are the distinctions:

1.) Rule 27 is essentially a mode of discovery (simply to

discover), whereas
Rule 21 on subpoena duces tecum is a means of
compelling production of evidence which must be
brought to court;

Rule 27 is limited to parties in the action, whereas

Rule 21 on subpoena duces tecum may be directed to
any person, whether a party or not;

The order under Rule 27 is issued only upon motion

2.)
with notice to the adverse party, whereas
A subpoena duces tecum under Rule 21 may be issued
upon an ex-parte application.
3.)
Section 24 of Rule 130 draws the types of disqualifications by
reason of privileged communication, to wit:

(a) Communications between husband and wife;

(b) Communications between attorney and client;
(c) Communication between physician and patient;
(d) Communication between priest and penitent;
(e) Public officers and public interest.

There are, however, other privileged matters that are not mentioned by Rule 130. Among them
are the following:

a) Editors may not be compelled to disclose the

source of published news;
b) Voters may not be compelled to disclose for whom
they voted;
c) Trade secrets;
d) Information contained in tax census returns; and
e) Bank deposits.

Case:

Air Philippines vs. Pennswell, Inc. GR No. 172835, December 13,

2007
 Rule 28
PHYSICAL AND MENTAL EXAMINATION OF PERSONS
This is the fifth and last mode of discovery
This mode of discovery is available in an action in which the
mental or physical condition of a party is in controversy.
So in order to even things, I will have to request you to
submit to a neutral doctor or psychiatrist for a physical or
mental examination. So the court will issue an order. For
example, damage suit in damage cases, the plaintiff may be
exaggerating his injuries.
The only way to confirm it is to have another doctor
examine him to find out whether his injury is really genuine
or sinadya may be for the purpose of securing a bigger
amount of damages. Remember the joke which we
mentioned in Evidence about the plaintiff who met an
accident na na-dislocate yung shoulder, so permanent ang
injury. So when he testified in court, he was asked to raise
his arm – higher, higher please! No more – the injury is
permanent.
Sabi ng court, “So that was after the accident. What about
before the injury? How high can you raise your arm?” A,
ganito o! So there is no more need for a physical
examination because he has already demonstrated it (he
was just exaggerating his injury).
SEC. 1. When Examination may be
ordered – In an action in which the
mental or physical condition of a party
is in controversy, the court in which
the action is pending may in its
discretion order him to submit a
physical or mental examination by a
physician (1)
SEC. 2. Order for examination – The
order for examination may be made
only upon motion for good cause
shown and upon notice to the party to
be examined and to all other parties,
and shall specify the time, place,
manner, conditions, and scope of the
examination and the person or persons
by whom it is to be made. (2)
Rule 28 applies in all actions where the mental or physical
condition of a party is in question or controversy.
EXAMPLES:
a) Declaration of nullity of marriage on the ground
psychological incapacity. Under the Family Code,
however, the state of psychological incapacity
must not have been existing only now for the first
c) physical or medical examination by a doctor to test
whether the allegation is true or not;
d) annulment of contract on the ground of insanity at
the time of execution (lack of consent);
Physical disability due to quasi-delicts (e.g.
vehicular accident). If I am the defendant and I
believe that you are merely exaggerating the extent
of your injury so that your claim for damages will
be higher, and diskumpiyado ako sa doctor mo, I
will ask the court to issue an order for you to
undergo physical examination by another doctor,
e)
so that we will know whether your claim is really
valid or not.
the mental condition of a party is in controversy in
proceedings for guardianship over an imbecile or
insane person, while the physical condition of a
party is generally involved in physical injuries
cases.
Since the results of the examination are intended to be
made public, the same are not covered by the physician-
patient privilege (Sec. 24b, R 130).
Q: Give the requisites of physical and mental
examination of persons under Rule 28:
A: The following are the requisites:
1) The physical or mental condition must be a
subject of controversy of the action;
2) A motion showing good cause must be filed; and
3) Notice of the motion must be given to the party to
be examined and to all other parties;
4) the motion shall specify the time, place, manner,
conditions, and scope of the examination and the
person or persons by whom it is made.
Sec. 3. Report of findings. - If requested
by the party examined, the party
causing the examination to be made
shall deliver to him a copy of a
detailed written report of the
examining physician setting out his
findings and conclusions. After such
request and delivery, the party causing
the examination to be made shall be
entitled upon request to receive from
the party examined a like report of
any examination, previously or
thereafter made, of the same mental
or physical condition. If the party
examined refuses to deliver such
report, the court on motion and notice
may make an order requiring delivery
on such terms as are just, and if a
physician fails or refuses to make such
a report the court may exclude his
testimony if offered at the trial. (3a)
Sec. 4. Waiver of privilege. - By
requesting and obtaining a report of
 time. It must have existed at the time of the the examination so ordered or by
marriage; taking the deposition of the

b) annulment of marriage on the ground of

impotency. The court can issue an order to
subject the party to undergo

examiner, the party examined waives any

privilege he may have in that action or any
 other involving the same controversy,
regarding the testimony of every other
person who has examined or may thereafter
examine him in respect of the same mental

or physical examination. (4)

Where the party examined requests and obtains a report on the

results of the examination, the consequences are:

1) he has to furnish the other party a copy of the report of any previous or
subsequent examination of the same
physical and mental examination; and
2) he waives any privilege he may have in that action or any other involving the
same controversy regarding the testimony of any other person who has so
examined him or may thereafter examine him.

Example: Maya is subjected to examination by a doctor upon motion by Dino under

Rule 28. So Maya asks for a copy of the
finding after examination. When Maya asks for the finding, Dino
can also ask for
Maya’s examination by the personal doctor of Maya, previously made or thereafter.

The doctor cannot be compelled to relay what the patient told her.

So if the doctor refuses to deliver such report, then under Section

3, he cannot testify. He cannot give evidence.

Also, once a party asks for a report of the examination, he automatically waives the privilege of
physician-patient relationship.
So if Maya does not want to waive the privilege, she should not ask a copy of the report
of the physician.

Q: Going back to the different modes of discovery, when is leave of

court required? Not required?

A: In the following cases:

1.) Depositions
– pending action, no answer filed yet REQUIRED
– pending action, answer filed already NOT
– before action or pending appeal REQUIRED
REQUIRED
2.) Interrogatories
– no answer filed yet REQUIRED
– answer filed already NOT
REQUIRED
3.) Request for admission NOT
REQUIRED
4.) Production or Inspection of REQUIRED
Documents or Things
5.) Physical and Mental Examination REQUIRED
of Persons

Rule 29 determine, at an earlier time, essential

issues and to promote settlement or
REFUSAL TO COMPLY WITH MODES OF DISCOVERY expeditious trial.

Rule 29 forms part of the study of the modes of discovery. The

policy on modes of discovery is that it is allowed and encouraged to
REPUBLIC vs. SANDIGANBAYAN – 204 SCRA 212 SEC. 3. Other consequences. - If
any party or an officer or
HELD: “It appears to the Court that among far too many lawyers (and not managing agent of a party
a few judges), there is, if not a regrettable unfamiliarity and even outright refuses to obey an order made
ignorance about the nature, purposes and operation of the modes of under section 1 of this Rule
discovery, at least a strong yet unreasoned and unreasonable requiring him to answer
designated questions, or an order
disinclination to resort to them— which is a great pity for the intelligent
under Rule 27 to produce any
and adequate use of the deposition-discovery mechanism, coupled with
document or other thing for
pre-trial procedure, could, as the experience of other jurisdictions
inspection, copying, or
convincingly demonstrates, effectively shorten the period of litigation and
photographing or to permit it to
speed up adjudication.” be done, or to permit entry upon
land or other property, or an
“Evidentiary matters may be inquired into and learned by the parties order made under Rule 28
before the trial. The desideratum is that civil trials should not be carried requiring him to submit to a
on in the dark. The Rules of Court make this ideal possible through the physical or mental examination,
deposition-discovery mechanism set forth. The experience in other the court may make such orders
jurisdictions has been that ample discovery before trial, under proper in regard to the refusal as are
regulation, accomplished one of the most necessary ends of modern just, and among others the
procedure: it not only eliminates unessential issues from trials thereby following:
shortening them considerably, but also requires parties to play the game
with the cards on the table so that the possibility of fair settlement before (a) An order that the
trial is measurably increased.” matters regarding which
the questions were
“The various modes or instruments of discovery are meant to serve (1) as asked, or the character
a device, along with the pre-trial hearing under Rule 18, to narrow and or description of the
clarify the basic issues between the parties, and (2) as a device for thing or land, or the
contents of the paper,
ascertaining the facts relative to those issues.”
or the physical or
mental condition of the
“Hence, the deposition-discovery rules are to be accorded a broad and party, or any other
liberal treatment. No longer can the time-honored cry of ‘fishing designated facts shall be
expedition’ serve to preclude a party from inquiring into the facts taken to be established
underlying his opponent’s case. Mutual knowledge of all the relevant for the purposes of the
facts gathered by both parties is essential to proper litigation. To that action in accordance
end, either party may compel the other to disgorge whatever facts he has with the claim of the
ill his possession. The depositiondiscovery procedure simply advances party obtaining the
the stage at which the disclosure can be compelled from the time of trial order;
to the period preceding it, thus reducing the possibility, of surprise.” (b) An order refusing to
allow the disobedient
SEC. 1. Refusal to answer. - If a party or other party to support or
deponent refuses to answer any question upon oral oppose designated
examination, the examination may be completed claims or defenses or
on other matters or adjourned as the proponent of prohibiting him from
the question may prefer. The proponent may introducing in evidence
thereafter apply to the proper court of the place designated documents
where the deposition is being taken, for an order to or things or items of
compel an answer. The same procedure may be testimony, or from
availed of when a party or a witness refuses to introducing evidence of
answer any interrogatory submitted under Rules 23 physical or mental
or 25. condition;

If the application is granted, the court shall require the (c) An order striking out
refusing party or deponent to answer the question or pleadings or parts
interrogatory and if it also finds that the refusal to answer thereof, or staying
was without substantial justification, it may require the further proceedings
refusing party or deponent or the counsel advising the until the order is
refusal, or both of them, to pay the proponent the amount obeyed, or dismissing
of the reasonable expenses incurred in obtaining the order, the action or proceeding
including attorney's fees. or any part thereof, or
rendering a judgment by
default against the
If the application is denied and the court finds that it was disobedient party; and
filed without substantial justification, the court may require
the proponent or the counsel advising the filing of the
(d) In lieu of any of the
application, or both of them, to pay to the refusing party or
foregoing orders or in
deponent the amount of the reasonable expenses incurred in
addition thereto, an
opposing the application, including attorney's fees. (1a)
order directing the
arrest of any party or
SEC. 2. Contempt of court. - If a party or other witness refuses agent of a party for
to be sworn or refuses to answer any question after being disobeying any of such
directed to do so by the court of the place in which the orders except an order
deposition is being taken, the refusal may be considered a to submit to a physical
contempt of that court. (2a) or mental examination.
(3a)
These are other consequences in addition to Section 1. These refer to the But the judge ruled that the case shall
refusal to obey an order under Rule 27 and Rule 28 which can even cost continue. The party now went to the SC
your case. The court will make an order that would make the disobedient contending that the judge committed a grave
party suffer. If he is the plaintiff, his complaint will be stricken out. abuse of his discretion in refusing to apply
the sanctions allowed by law.
Or if he is the defendant, judgment of default can be rendered against
him although the judgment of default can only be done if he failed to file HELD: While it is true that there are
an answer. But his refusal to comply with a mode of discovery is the sanctions allowed by law in cases of refusal
exception to the case. This is one instance when a judgment by default to comply with the modes of discovery, the
can be rendered against a defendant who filed an answer. And that is same is DISCRETIONARY. Meaning, let the
the worst penalty for refusing to cooperate. court decide whether justice will be served
by going to trial or not. So there was no
SEC. 4. Expenses on refusal to admit. - If a party after grave abuse of discretion on the part of the
being served with a request under Rule 26 to admit judge.
the genuineness of any document or the truth of
any matter of fact, serves as sworn denial thereof “The matter of how, and when, the above
and if the party requesting the admissions sanctions should be applied is one that
thereafter proves the genuineness of such primarily rests on the sound discretion of
document or the truth of any such matter of fact, the court where the case is pending, having
he may apply to the court for an order requiring always in mind the paramount and
the other party to pay him the reasonable expenses overriding interest of justice. For while the
incurred in making such proof, including attorney's modes of discovery are intended to attain
fees. Unless the court finds that there were good the resolution of litigations with great
reasons for the denial or that admissions sought expediency, they are not contemplated,
were of no substantial importance, such order shall
however, to be ultimate causes of injustice.
be issued. (4a)
It behooves trial courts to examine well the
circumstances of each case and to make
Section 4 pertains to Rule 26 on request for admission. If X was able to their considered determination thereafter. It
prove something that Y refused to admit, Y can be held liable for is only in clear cases of grave abuse of that
expenses and attorney's fees for refusing to admit something which discretion when appellate courts will
turned out to be true. If it is something true, you might as well admit it. interfere in their judgment.”
Do not put the other party into trouble for you might be held liable for
the expenses later on.
In other words, courts are still given the
leeway of whether or not to apply the
SEC. 5. Failure of party to attend or serve answers. - If ultimate sanctions.
a party or an officer or managing agent of a party
willfully fails to appear before the officer who is to
take his deposition, after being served with a NOTE: The ruling in this case was
proper notice, or fails to serve answers to reiterated in the 1996 case of SANTIAGO
interrogatories submitted under Rule 25 after LAND DEVELOPMENT CO. vs. CA, July 9,
proper service of such interrogatories, the court on 1996
motion and notice, may strike out all or any part of (258 SCRA 535) and the 1998 case of DELA
any pleading of that party, or dismiss the action or TORRE vs. PEPSI-
proceeding or any part thereof, or enter a judgment COLA PRODUCTS, October 30, 1998 (298
by default against that party, and in its discretion, SCRA 363)
order him to pay reasonable expenses incurred by
the other, including attorney's fees. (5) FORTUNE CORPORATION vs. CA – 229
SCRA 355
Section 5 is identical to previous consequences. If a party is served with
interrogatories and he refuses to answer under Rule 25, he can be ISSUE: Are the 5 modes of discovery
penalized with the ultimate penalty of dismissal of the case or judgment cumulative or exclusive? Can a party
by default. Thus, the ultimate effect is that, a party who refuses to resort to any modes of discovery or are
cooperate may lose the case ultimately. they intended to be an exclusion of the
other?
Normally, default judgment applies only to a defendant who failed to file
an answer. But Rule 29 allows a default judgment even if you filed an HELD: “The various methods of
answer for failure to comply with the modes of discovery. So, this is one discovery as provided for in the Rules
instance when a judgment by default can be rendered against a are clearly INTENDED TO BE
defendant who filed an answer. CUMULATIVE, as opposed to alternative
or mutually exclusive.”
INSULAR LIFE ASSURANCE CO., LTD. vs. CA – 238 SCRA 88 [1994]
“Under the present Rules the fact that a
FACTS: There was a refusal here of one party to answer an interrogatory. party has resorted to a particular
So the other party asked the court to issue an order. The court then method of discovery will not bar
ordered the other party to answer, but he still refused. subsequent use of other discovery
devices, as long as the party is not
So, the plaintiff filed a motion for judgment of default against the attempting to circumvent a ruling of the
defendant (or dismissal of the case) citing Section 5 – where if one refuses court, or to harass or oppress the other
to cooperate, the case will be dismissed or a judgment of default can be party.”
rendered against the party.
Summary:
Refusal to comply with modes of discovery and sanctions If a party refuses to answer the whole
written interrogatories, Sec. 5 of R 29
A. Refusal to answer any question - - 1. the court may, upon proper applies.
application, compel a refusing deponent to answer
(sec. 1) Where a party refuses to answer a particular
a) if granted and refusal to answer is without substantial question in the set of written interrogatories
justification, the court may require the refusing party to pay the and despite an order compelling him to
proponent the amount of the reasonable expenses incurred in answer, still refuses to obey the order, Sec.
obtaining the order, including attorney's fees; 3(c) will apply (Zepeda vs. China Bank GR
b) if denied and filed without substantial justification, the court No. 172175, Oct. 9, 2006).
may require the proponent to pay the refusing party the amount
of the reasonable expenses incurred in obtaining the order, Expenses and attorney's fees are not to be
including attorney's fees. imposed upon the Republic of the
Philippines.
a refusal to answer after being directed to do so may be considered
as contempt of court. (Sec. 2) The consequences under Sec. 5 will apply if
a party refuses to answer the whole set of
B. Refusal to be sworn - - - cite the deponent in contempt of written interrogatories, and not just a
court; particular question. Where the party upon
whom the written interrogatories is served,
C. Refusal to answer designated questions or refusal to produce
refuses to answer a particular question in
documents or to submit to physical or mental examination (Sec.
the set of written interrogatories and despite
3) - - - the court may make the following orders:
an order compelling him to answer the
particular question, still refuses to obey the
1) prohibit the disobedient party from introducing evidence of court, Sec. 3© of Rule 29 will apply (Cepeda
physical or mental condition; v. China Banking Corporation GR No.
2) refuse to allow the disobedient party to support or oppose 172175, October 9, 2006).
claims or defenses;
3) strike out pleadings or parts thereof;
The following are the consequences
4) stay further proceedings; provided for in Sec. 3©:
5) dismiss the action or proceeding or any part thereof;
6) render a judgment by default against disobedient party;
A) The court may issue an order
7) direct the arrest of any party or agent of a party disobeying
striking out pleadings or parts
any of such orders except an order to
thereof;
submit to a physical or mental examination;
B) The court may issue an order
staying further proceedings until
D. Refusal to admit under Rule 26 (Sec. 4) - - - the court, upon the order is obeyed; or
proper application, issue an order requiring the other party C) The court may issue an order
to pay him reasonable expenses incurred, including rendering a judgment by default
attorney's fees; against the disobedient party.
E. Failure of Party to attend or serve answers to written
interrogatories (sec. 5) - - - the court, on motion and notice:
The matter of how, and when, the above
sanctions should be applied is one that
1) strike out all or any part of any pleading of disobedient party; primarily rests on the sound discretion of
2) dismiss the action or proceeding or any part thereof; the court where the case is pending, having
3) enter a judgment by default against disobedient party; always in mind the paramount and
4) order payment of reasonable expenses incurred by the other overriding interest of justice. For while the
including attorney's fees. modes

of discovery are intended to attain the resolution of litigations with great expediency,
they are not contemplated, however, to be ultimate causes of injustice. It behooves trial
courts to examine well the circumstances of each case and to make their considered
determination thereafter (Zepeda vs. China Banking Corporation)

Q: To summarize, what are the instances when a defendant shall

be considered in default even if such defendant has already filed

an answer?

A: The following are the instances:

1) Failure to appear at the pre-trial conference (Rule 18); and

2) Failure to cooperate in the mode of discovery (Section 5,
Rule 29).
 Rule 30
TRIAL
Section 1. Notice of trial. Upon entry of a
case in the trial calendar, the clerk shall
notify the parties of the date of its trial in
such manner as shall ensure his receipt of
that notice at least five (5) days before
such date. (2a, R22)
Of course, after the Pre-trial, the next step now is trial. And it is
the duty of the clerk of court to send notices to the parties about
the date of the trial in such manner as shall insure his receipt of
that notice at least five (5) days before such date. But actually in
real practice, it will even take more than a month to give you
ample time to prepare for it.
Now, it is mandatory that the notice should reach the party or
its lawyer at least five (5) days before such date.
Q: Define trial.
A: TRIAL is an examination before a competent tribunal of the
facts or law put in issue in a case, for the purpose of
determining such issue. (Ballentine’s Law Dict., 2nd Ed., p.
1299)
It is the judicial process of investigating and determining the
legal controversies, starting with the production of evidence by
the plaintiff and ending with his closing arguments (Acosta v.
People 5 SCRA 774).
In a trial, there is always an issue where we cannot agree.
Therefore, the purpose of a trial is for the court to resolve that
issue.
Trial and Hearing
The terms “trial” and “hearing” are sometimes interchangeably
used. There is however, a marked difference between these
terms. Trial refers to the stage of presentation of evidence and
other processes; it is the period for the presentation of evidence
by both parties.A hearing is a broader term. It is not confined to
the trial and presentation of the evidence because it actually
embraces several stages in the litigation. It includes the pre-trial
and the determination of granting or denying a motion (Trocio v.
Labayo 53 SCRA 97). Hearing does not necessarily imply
presentation of evidence in open court but the parties are
afforded the opportunity to be heard.
General rule: when an issue exists, trial is necessary.
Decisions should not be made without trial.
When trial is not necessary
A civil case may be adjudicated upon without the need for a trial
in any of the following cases:
a) Where the pleadings of the parties tender no issue at
all, a judgment on the pleadings may be directed by
the court (Rule 34).
b) Where from the pleadings, affidavits, depositions and
other papers, there is actually no genuine issue, the
court may render a summary judgment (Rule 35);
c) Where the parties have entered into a compromise
agreement either during the pre-trial or while the trial
is in progress (Rule 18; Art. 2028 NCC);
d) Where the complaint has been dismissed with
prejudice
(Sec. 5 R 16; Sec. 3 R 17; Sec. 5, last par. R 7);
e) Where the case falls under the operation of the Rules
on
Summary Procedure; and
f) Where the parties agree in writing, upon the facts
involved in the litigation, and submit the case for
judgment on the facts agreed upon, without the
introduction of evidence. If, however, there is no
agreement as to all the facts in the case, trial may be
held only as to the disputed facts (Sec. 6 R 30).
g) when there is a judgment on confession.
Sec. 2. Adjournments and postponements. A
court may adjourn a trial from day to day,
and to any stated time, as the expeditious
and convenient transaction of business
may require, but shall have no power to
adjourn a trial for a longer period than one
month for each adjournment, nor more
than three months in all, except when
authorized in writing by the Court
Administrator, Supreme Court. (3a, R22)
“A court may adjourn a trial from day to day” means that if
the trial is not finished on the scheduled date, that will be
postponed on another day. That is how trials are being
conducted. It is by staggered basis. That is what you call
adjournment. But everything is recorded anyway. If you look at
the transcript of stenographic notes, it would seem that the trial
is continuous because everything unfolds there. But actually,
these occurred on different dates.
Now, Section 2 also provides that no party shall be allowed a
postponement of more than one (1) month per postponement
and not more than three (3) postponements in all.
As a GENERAL RULE: Not more than one (1) month for each
adjournment BUT only for a maximum of three (3) months in all
or not beyond 90 days except when authorized in writing by the
court administrator of the Supreme Court.
And that jives with the SC Circular 3-90 which contains a
mandatory continuous trial for 90 days. In other words, the case
must terminate in 90 days.
The ONLY EXCEPTION is when authorized in writing by the
court administrator. Meaning, the judge can go to the court
administrator to allow the court to go beyond the period allowed
by law.
Sec. 3. Requisites of motion to postpone trial
for absence of evidence. A motion to
postpone a trial on the ground of absence
of evidence can be granted only upon
affidavit showing the materiality or
relevancy of such evidence, and that due
diligence has been used to procure it. But
if the adverse party admits the facts to be
given in evidence, even if he objects or
reserves the right to their admissibility,
the trial shall not be postponed.
(4a, R22; Cir. No. 39-98)
Generally, there are two main reasons why parties ask for
postponement. One is,
(1)absence of evidence like when the witness is not
available or the document is not available, or
(2) somebody is sick – either the party or counsel is sick.
Requisites:
1) A motion for postponement stating the ground relied
upon must be filed; and
2) the motion must be supported by an affidavit showing:
a. the materiality and relevancy of such evidence;
and
b. that due diligence has been used to procure it.
If the adverse party admits the facts to be given in evidence, the
trial will not be postponed even if he objects or reserves the right
to object to their admissibility (Feria, Civil Procedure Annotated
Vol. 1, p. 565)
Note: This section does not apply to criminal cases as the rule
on postponements in criminal cases is governed by Sec. 2 R
119.
Now, of course the requirements of the Rules are really strict
although courts and lawyers are very liberal on this. First of all,
if you want to postpone a trial on the ground of absence of
evidence, there must be a verified affidavit. The affidavit must
show the materiality or relevancy of the evidence which is not
available and that due diligence was used to procure it. In other
words, you tried your best to secure it earlier.
Now, what is the meaning of the second sentence: “If the
adverse party admits the facts to be given in evidence, even if he
objects or reserves the right to their admissibility, the trial shall
not be postponed”?
EXAMPLE:
LAWYER: “We are asking for postponement because our witness
is not present. He is not available and his testimony will be very
material.”
ADVERSE PARTY: “Alright, what is going to be his testimony?
What will he testify about in court?
LAWYER: “Well, this is his testimony …. he will prove this or he
will prove that….”
ADVERSE PARTY: “OK. Admitted. I admit that if he is here, this
is what he will say, Although I may object to the admissibility of
such testimony.”
Meaning, the other party may admit the evidence but object to
its admissibility. That is two different things – admitting the
evidence but objecting to its admissibility in court. Meaning,
objecting to the admissibility of the witness in court. Just like
under the Constitution, if a confession is made by a suspect
without being afforded with the Miranda warnings, such
confession is not admissible. But such confession is evidence.
Only, it is inadmissible.
So, I admit that, although I reserve my right to its admissibility.
Then in such case, you have no more reason for postponement
because in the first place, there is no need to present your
witness because the other party already admitted what will be
the substance of his testimony.
Sec. 4. Requisites of motion to postpone trial
for illness of party or counsel. A motion to
postpone a trial on the ground of illness of
a party or counsel may be granted if it
appears upon affidavit or sworn
certification that the presence of such
party or counsel at the trial is
indispensable and that the character of his
illness is such as to render his
nonattendance excusable. (5a, R22)
Requisites:
1) A motion for postponement stating the ground relied
upon must be filed; and
2) the motion must be supported by an affidavit or sworn
certification showing:
a. the presence of such party or counsel at the trial is
indispensable; and
b. that the character of his illness is such as to render
his non-attendance excusable.
Postponements are addressed to the sound discretion of the
court. In the absence of grave abuse of discretion, it cannot be
controlled by mandamus (Olsen vs. Fressel & Co., GR No.
12955, Nov. 8, 1917).
The same thing for illness (2nd ground). Kung may sakit, there
must be affidavit or sworn statement. So you must have a sworn
medical certificate and that the presence of such party or
counsel is indispensable and the character of his witness is
such as to render his non-attendance excusable.
Now, of course the SC has already stated in some cases that
when the sickness is sudden and unexpected such as caused by
an accident, you cannot require on the spot a medical
certificate. Meaning, how can I produce something if he got sick
only an hour ago? So, the court should take that into
consideration. They cannot object to the requirement of medical
certificate.
So, a motion for postponement which is not verified upon the
ground of illness of a party or counsel without a medical
certificate should be granted if it appears that the claim of the
movant is meritorious.
Normally, we just say that if the other party insists on a medical
certificate, we will submit it this afternoon or tomorrow because
there are things in which we cannot get a medical certification
on time unless he has been sick for so long.
In the ultimate analysis, what is the policy of the SC on
postponements? Motions for postponements is always
addressed to the sound discretion of the court (Casilan vs.
Gancayco, 56 O.G. 2799, March 28, 1960; People vs. Martinez,
57 O.G. 7923, Oct. 30, 1961).
So if the motion for postponement is denied or granted or either
way, it is so hard to have it overturn because the SC will always
give way to the discretion and rarely will it happen in court
where it will interfere without discretion unless there is grave
abuse of discretion.
ORDER OF THE TRIAL
The order of trial in civil cases is a little bit more complicated
compared to criminal cases.
Sec. 5. Order of trial. Subject to the
provisions of section 2 of Rule 31, and
unless the court for special reasons
otherwise directs, the trial shall be limited
to the issues stated in the pre-trial order
and shall proceed as follows:
(a) The plaintiff shall adduce evidence in
support of his complaint;
(b) The defendant shall then adduce evidence
in support of his defense, counterclaim,
cross-claim and third-party complaint;
(c) The third-party defendant, if any, shall
adduce evidence of his defense,
counterclaim, cross-claim and fourth-party
complaint;
(d) The fourth-party, and so forth, if any, shall
adduce evidence of the material facts
pleaded by them;
(e) The parties against whom any
counterclaim or cross-claim has been
pleaded, shall adduce evidence in support
of their defense, in the order to be
prescribed by the court;
(f) The parties may then respectively adduce
rebutting evidence only, unless the court,
for good reasons and in the furtherance of
justice, permits them to adduce evidence
upon their original case; and
(g) Upon admission of the evidence, the case
shall be deemed submitted for decision,
unless the court directs the parties to
argue or to submit their respective
memoranda or any further pleadings.
If several defendants or third-party
defendants, and so forth, having separate
defenses appear by different counsel, the
court shall determine the relative order of
presentation of their evidence. (1a, R30)
Take note that the law says “the trial shall be limited to the
issues stated in the pre-trial order.” That is now emphasized
under the Rule 30. That jives with Rule 18, Section 7 on what
is the importance of a pre-trial order:
Sec. 7. Record of pre-trial. - The proceedings
in the pre-trial shall be recorded. Upon the
termination thereof, the court shall issue
an order which shall recite in detail the
matters taken up in the conference, the
action taken thereon, the amendments
allowed to the pleadings, and the
agreements or admissions made by the
parties as to any of the matters considered.
Should the action proceed to trial, the
 order shall explicitly define and limit the
issues to be tried. The contents of the
order shall control the subsequent course
of the action, unless modified before trial
to prevent manifest injustice. (5a, R20)
The pre-trial order shall limit the issues and shall control the
subsequent course of the action. We already emphasized that
the pre-trial order prevails over the pleadings. The pre-trial
order has the effect of superseding the complaint and the
answer. Whatever issues are stated in the pre-trial order shall
be the issues to be tried during the hearing on the case.
Now going back to Rule 30, that is now emphasized. The trial
shall be limited to the issues stated in the pre-trial order. So,
the pretrial order will be a very important document to
determine what are the issues to be tried.
Q: How will the trial proceed? In what order?
A: Section 5, paragraphs [a] to [g], including the last paragraph
of Section 5.
Q: What is the reason for the rule prescribing an order of trial?
A: The reason is for orderly procedure, which must be followed
if injurious surprises and annoying delays in the administration
of justice are to be avoided. Evidence cannot be given piece-
meal. (Dir. of Lands vs. Archbishop of Manila, 41 Phil. 120)
You will notice the order of trial in civil cases follows more or
less the same pattern with the trial in criminal case. The pattern
is the same although there may be cross-claims, third (fourth,
etc.) party complaints, especially when there are more than one
defendant.
BASIC PATTERN (No cross-claim, counterclaim or 3rd-party
complaint, etc.):
1.) Plaintiff presents evidence to prove his claim or
cause of action. That is what you call EVIDENCE
IN CHIEF, also called as the MAIN EVIDENCE;
(paragraph [a])
2.) Defendant presents evidence in chief or main
evidence to prove his defense – negative or
affirmative defense; (paragraph [b]),
3.) Plaintiff will present what we call REBUTTAL
EVIDENCE to rebut defendant’s main evidence.
(paragraph [f])
4.) Defendant is given the chance to present rebuttal
evidence to rebut the rebuttal of evidence of the
plaintiff. In legal parlance, we call that SUR-
REBUTTAL evidence; (paragraph [f])
5.) ARGUMENTS. Normally, it is what we call the
filing of
MEMORANDUM (written arguments) – the parties will
submit their respective memoranda, unless the case
will be submitted for decision without arguments or
memorandum. (paragraph [g])
So, normally, that is the basic pattern of the order of trial. Now,
plaintiff presents evidence ahead, after him defendant presents
evidence to prove his defense. Now, in the case of
YU vs. MAPAYO – 44 SCRA 163
FACTS: The plaintiff filed a complaint against the defendant to
collect a loan which, according to the plaintiff, the defendant
has not paid. The defendant filed an answer admitting the loan
but ang kanyang affirmative defense is, the obligation is paid.
During the trial, the plaintiff said that he is no longer going to
present any evidence to prove his cause of action because
anyway, the defendant has admitted the obligation; and since
the defendant is the one invoking payment, it is, therefore, his
burden to prove payment.
The trial court agreed with the plaintiff, “Yes. Alright defendant,
you present evidence that the obligation is paid. Anyway, you are
admitting that you borrowed money.”
Now, according to the defendant, the procedure is improper the
order of the trial being altered, “Why will the defendant prove his
defenses ahead. The plaintiff is supposed to present evidence
bago ako. Bakit uunahin ako?” That is the objection of the
defendant.
ISSUE: Can the defendant present his evidence first?
HELD: AH YES! Anyway, by admitting the obligation, you
are invoking the affirmative defense of payment. So, it is
incumbent upon you to prove that it is paid.
Under Rule 16, the defendant is not obliged to file a motion
to dismiss. That is optional. In fact, the defendant is
allowed, instead of filing a motion to dismiss, to file an
answer invoking the ground for a motion to dismiss as an
affirmative defense. And then the defendant could even ask
for a preliminary hearing for his affirmative defenses as if a
motion to dismiss has been filed.
Therefore, in the hearing for a motion to dismiss, the
defendant is now converting his defense into a ground for a
motion to dismiss. In which case, the affirmative defense
will be heard ahead of the main action. So, that is allowed
under Rule 16.
So, there is nothing basically wrong with an affirmative
defense being heard ahead of the plaintiff, especially when
the plaintiff has nothing to prove anymore.
Well, of course that is more apparent in criminal procedure.
In the order of trial in criminal procedure, the court may
even direct the accused to present evidence ahead of the
prosecution when the accused is already admitting the facts
constituting the crime but only invokes a defense such as
self-defense – when you are accused of homicide and your
defense is that you acted in self-defense. So, wala ng i-prove
ang prosecution. Automatically, you are admitting that you
killed the victim. The burden now is shifted to you to justify
the killing. That’s what they call “TRIAL IN REVERSE.”
So, in criminal cases where the law authorizes a reversed
trial where the accused is directed to present evidence
ahead of the prosecution, there is no reason why the same
procedure cannot also apply in civil cases. That is the
essence of the MAPAYO ruling. So, more or less, that is the
deviation from the normal order of trial.
Section 5 [f]: The parties may then
respectively adduce rebutting evidence
only, unless the court, for good reasons
and in the furtherance of justice, permits
them to adduce evidence upon their
original case;
Paragraph 5 (f) is actually presentation of rebuttal evidence.
Q: What is the difference between the evidence mentioned in
paragraph [f] and the evidence mentioned in paragraphs [a] and
[b]?
A: Paragraphs [a] and [b] refer to what we call EVIDENCE IN
CHIEF to prove your main cause of action or your defense. In
paragraph [f], the evidence is not evidence in chief but
REBUTTAL EVIDENCE to dispute the side of the other party.
Q: Is a party allowed to present evidence in chief in the rebuttal
stage?
A: GENERAL RULE: NO, because paragraph [f] provides that
the parties may then respectively adduce rebutting evidence
only. In other words, you do not go back to paragraphs [a] and
[b]. If you have evidence to prove your cause of action or
defense, you should have done it earlier.
So generally, evidence in chief is not allowed during the rebuttal
stage. But there is an exception:
EXCEPTION: “Unless the court, for good reasons and in the
furtherance of justice permits them to adduce evidence upon their
original case.” Meaning, it permits them to adduce evidence in
chief. But you need the permission of the court because
normally, you should have done that under paragraphs [a] and
[b] and not in paragraph [f].
Q: Give instances when the court may allow the party to present
additional evidence in chief during rebuttal to prove his cause of
action.
A: In the following instances:
1.) When it is newly discovered;
2.) When the evidence was omitted through
inadvertence or mistake;
3.) When the purpose is to correct evidence previously
offered; (Lopez v s. Liboro, 81 Phil. 429)
4.) When the additional evidence offered is material
and not
merely cumulative or impeaching (64 C.J. 160-163)
Those are the possible instances when the court in the interest
of justice may allow the parties to present evidence in chief
during the rebuttal stage which is normally not allowed.
And that is what I saw exactly years ago how this paragraph [f]
operates. There was case here we were watching before. There
was a veteran trial lawyer from Manila who tried a case here. I
think it was a damage suit against KLM Royal Airlines for
breach of contract of carriage because some of the passengers
were from Davao City. Alright when they are already in the
rebuttal stage, the lawyer for the Airlines was presenting
evidence and the counsel for the plaintiff argued, “Objection
Your Honor, it is not rebuttal evidence. It is evidence in chief
which he is presenting. So it is not proper during this stage.”
And the trial court agreed, “Yes, it is improper. The evidence in
chief should have been presented earlier. Therefore, objection is
sustained.” Lawyer for the Airlines, “So, you honor, may we
move for a reconsideration because we believe it is rebuttal
evidence and it is very important.” So, balik na naman sila sa
argument. And then the court said, “The motion for
reconsideration is denied, you are not allowed.”
So, patay siya. And it’s really true that what was presented was
evidence in chief and not rebuttal evidence. So, hindi siya ba
makalusot or hindi siya makapasok. So, for a while, he closed
his eyes and said, “Your Honor, in the interest of justice may we
be allowed to present evidence in chief for the rebuttal stage.”
And the court said granted, “Sure pare basta ikaw! [Mas OK pa
sa ALRIGHT]!” So pasok na naman!
In other words, saan niya kinuha ito? When I looked at the
Rules, iyon pala! He knows how to invoke it. In other words, you
can see the skill of a veteran lawyer. The rules are at his
fingertips. So, that is how I saw this provision operates.
Section 5 [g]: Upon admission of the
evidence, the case shall be deemed
submitted for decision, unless the court
directs the parties to argue or to submit
their respective memoranda or any further
pleadings.
Now, of course, pag tapos na kayo, main evidence and rebuttal,
tapos na ang kaso. Meaning, the case is ready for decision. But
normally, the lawyer of the parties would say, “We would like to
argue.” And the argument is normally not oral but in writing
where you will be asked to file what you call MEMORANDUM.
A MEMORANDUM is practically a thesis where you will
summarize your position and you argue why you should win.
That is where you cite evidence. You convince the court that
you have proven your cause of action or defense. Then you cite
the testimonies, the exhibits, the transcripts and of course, the
argument, the jurisprudence, the law. That is where you argue.
You do not argue in your pleading. Pleadings, complaint,
answer is not the time to argue. There, you only state the facts.
You argue after the trial where you interpret now the evidence
and convince the court.
Summary of trial and judgment
1) Plaintiff presents evidence
2) Defendant presents evidence to support his
defense/counterclaim/cross claim/3rd-party
complaint;
3) Third-party defendant presents evidence;
4) Parties against whom a counterclaim or cross claim is
pleaded presents evidence in their defense;
5) Rebuttal evidence by parties;
6) Decision
When defendant files a demurrer to evidence
However, defendant can file a demurrer to evidence after the
plaintiff has completed its presentation of evidence and rested
its case.
When this happens the court has the following options:
1) To grant the motion and issues an order of dismissal;
or
2) To deny the motion and continue the hearing following
the steps.
In both cases, before rendering a decision, the court may allow
the parties to:
1) present oral arguments or; 2)
submit memoranda.
Note: Subject to Section 2 of Rule 31 and unless the court for
special reasons, otherwise directs, the trial shall be limited to
the issues stated in the pre-trial order.
Sec. 6. Agreed statement of facts. The
parties to any action may agree, in
writing, upon the facts involved in the
litigation, and submit the case for
judgment on the facts agreed upon,
without the introduction of evidence.
If the parties agree only on some of the
facts in issue, the trial shall be held as to
the disputed facts in such order as the
court shall prescribe. (2a, R30)
Alright, why do the parties present evidence 1, 2, 3, 4. What is
the purpose there? To prove facts. Normally, we cannot agree
on the facts. I say something and you will say that is not true
and this is what happened. So, normally, cases arise because of
the issue of what happened.
Q: Now, is there a possibility that the court will decide whether
there is trial or no more evidence?
A: YES! If the parties agree in writing upon the facts involved in
the litigation and they will submit the agreed facts or the case
for decision. That is what we call JUDGEMENT ON AGREED
STATEMENT OF FACTS or the more popular term:
JUDGEMENT BASED ON STIPULATION OF FACTS.
EXAMPLE: The plaintiff and the defendant agree on all the
facts. “These are the facts,” sabi ng plaintiff. Then sabi ng
defendant, “Yes, I agree those are the facts.” Now if we agree on
the facts, there is nothing more to prove. And what we are now
quarreling is who should win based on the facts agreed upon.
So, ano ngayon ang kaso? That is purely a legal question.
There is nothing to prove because everything is admitted. They
disagree only on the conclusion.
So, with that, par. 1, 2, 3, 4 all these steps are useless. There is
nothing to prove. In which case, we will go immediately to step
no. 5. So, if the parties agree in writing upon the facts involved
in the litigation and they will submit the agreed facts for
decision, that is
JUDGEMENT BASED ON STIPULATION OF FACTS which is
encouraged by the law. This is one of the purposes of Pre-Trial
(Rule 18, Section 2 [d]) where the parties are encouraged to
stipulate on facts, because really, it would save a lot of time.
The best example of agreed facts would be examination
problems. The facts are already given – this is what happened.
You cannot change that anymore. And you will be asked,
“DECIDE: Is A correct or is B correct.” So in other words, you
simply apply the law. You do not apply anymore the issue of
what happened because it is already agreed. Your answer
would be similar to a JUDGMENT BASED ON STIPULATION OF
FACTS.
Q: Why is an agreed statement of facts sufficient basis for a
judgment?
A: The reason is that an agreed statement of facts is conclusive
on the parties, as well as on the court. Neither of the parties
may withdraw from the agreement, nor may the court ignore the
same. (McGuire vs. Manufactures Life Ins. Co., 87 Phil. 370)
Q: Now suppose they can agree on some facts but they cannot
agree on others.
A: There is no problem. You can have a partial stipulation of
facts and then we can try the rest with respect to the other
disputed facts.
That is why the second paragraph says, “If the parties agree only
on some of the facts in issue, the trial shall be held as to the
disputed facts in such order as the court shall prescribe.” At
least, it would still be faster because the disputed facts are now
limited. Rather than proving ten (10) issues of facts, it will be
reduced to 3 or 4. So, the trial would still be faster.
Note: If no evidence is presented and the case is submitted for
decision on an agreement of the parties, the court should render
judgment in accordance with said agreement. The court cannot
impose upon the parties a judgment different from their
compromise agreement.
However, the compromise agreement must not be contrary to
law, morals, good customs, public order and public policy
(Philippine Bank of Communications vs. Echiverri, GR No. L-
41795, Aug. 29, 1980)
Stipulation of facts (SOF) are not permitted in actions for
annulment of marriage and for legal separation.
SOF in civil and criminal cases
1) SOF in civil cases may be signed by the counsel alone
who has a special power of attorney while in criminal
cases it should be signed by both the counsel and the
accused;
2) In civil cases the SOF may be made orally or in writing
while in criminal cases it must always be in writing.
The court is not bound to find out what happened when the
parties already agreed on what happened.
EXAMPLE: The parties will stipulate, “This case involves a piece
of land with an area of 50 hectares, planted with coconut trees of
about 5,000.” So, parties agreed and then the court says, “No, I
do not believe you. It might be more than 59 hectares.” NO.
When the parties agree, sundin mo yan because they
themselves agree on the facts. You only determine the facts if
they cannot agree.
That is why the court is bound by the stipulations made by the
parties.
Sec. 7. Statement of judge. During the
hearing or trial of a case any statement
made by the judge with reference to the
case, or to any of the parties, witnesses or
counsel, shall be made of record in the
stenographic notes.
(3a, R30)
Take note that the trial is a formal court proceeding. Everything
is recorded there – the statement of parties, their lawyers,
including the statement of the judge. Any statement made by
the judge with reference to the case or to any of the parties,
witnesses, or counsel shall be made of record in the
stenographic notes.
Sec. 8. Suspension of actions. The
suspension of actions shall be governed by
the provisions of the Civil Code. (n)
This is mentioned in Rule 18, Section 2 [h] which discusses the
possibility of suspension of the proceedings. Meaning, huwag
munang gumalaw ang kaso – in suspended animation baah!
Q: And what is the possible good legal ground for the parties to
ask for suspension of the hearing? Meaning, held in abeyance
ba. What would be the best possible ground?
A: The best possible ground is the one mentioned in Article 2030
of the New Civil Code:
Art. 2030. Every civil action or proceeding
shall be suspended:
1. If willingness to discuss a possible
compromise is expressed by one or both
parties; or
2. If it appears that one of the parties, before
the commencement of the action or
proceeding, offered to discuss a possible
compromise but the other party refused
the offer.
The duration and terms of the suspension
of the civil action or proceeding and
similar matters shall be governed by such
provisions of the rules of court as the
Supreme Court shall promulgate. Said
rules of court shall likewise provide for
the appointment and duties of amicable
compounders. (n)
According to Article 2030 of the civil code, if at anytime while
the case is going on, one of the parties would like to discuss a
POSSIBLE AMICABLE SETTLEMENT OR COMPROMISE, they
can ask for the suspension of proceedings. Why? The court of
the law favors compromises or amicable settlements in civil
cases.
So at anytime that one party expresses its desire to settle, even
in the middle of the case, the court is authorized to suspend the
action to give the parties opportunity to settle because of the
policy of the law to encourage the parties to settle amicably.
That is why even former U.S. President Lincoln, who is more
remembered as president rather than as a lawyer, was quoted,
“Discourage litigation. Persuade your neighbor to compromise
whenever you can. Point out to them how the nominal winner is
often the real loser in fees, expenses and waste of time. As a
peace-maker [Long Live the PeaceMakers!], the lawyer has the
superior opportunity of being a good man. There would still be
business enough.”
Meaning, aregluhin ba hanggang maari, you better settle. When
you settle, nobody is loser and nobody is winner. Both of you
win. Walang masakit ang loob ba. And marami pang negosyo,
marami pang kaso. Do not make such money out of one case. If
you can settle, i-settle muna. Huwag mong sabihing “sayang
iyong income” dahil marami pang kaso na darating. That was
what he said.
Now, of course, what happens if the party cannot agree to settle?
Well, the procedure is, let the trial go on. That is why in the
1992 case of
GOLDLOOP PROPERTIES, INC. vs. CA - 212 SCRA 498
[1992]
FACTS: The parties in a civil action manifested the possibility of
submitting amicable settlement. The court gave them 15 days
to submit their compromise agreement. 15 days passed, no
amicable settlement was submitted by the parties. With that,
the court dismissed the case.
ISSUE: Was the court correct in dismissing the case when the
parties cannot settle?
HELD: The dismissal is WRONG. “Since there is nothing in the
Rules that imposes the sanction of dismissal for failing to
submit a compromise agreement, then it is obvious that the
dismissal of the complaint on the basis thereof amounts no less
to a gross procedural infirmity. While a compromise is
encouraged, very strongly in fact, failure to consummate one
does not warrant any procedural sanction, much less an
authority to jettison a civil complaint. What the court should
have done was to continue the action.”
In other words, why should you dismiss the complaint when the
parties cannot settle? By that, technically, natalo ang plaintiff.
Kung hindi magkaareglo, then go on with the trial. You have no
authority to dismiss the case simply because the parties cannot
settle.
However, there are certain matters which cannot be the subject
of compromise. Practically, compromise is allowed on anything
under the sun, except certain matters such as those mentioned
in Article 2035.
Q: What are the matters that cannot be the subject of
compromise?
A: Under the Article 2035, New Civil Code, the following:
(1) The civil status of persons; (whether legitimate or
illegitimate)
(2) The validity of a marriage or a legal separation; (w/n a
marriage settlement exists)
(3) Any ground for legal separation;
(4) Future support; (always depends on the means of the
party giving support) (5) The jurisdiction of courts;
(6) Future legitime.
So you cannot agree on these. You cannot compromise as a
legitimate when in fact you are illegitimate. Where is the basis of
that? You cannot compromise that the marriage is valid when in
fact it is not, or it is null and void. These things cannot be the
subject of agreement.
Sec. 9. Judge to receive evidence; delegation
to clerk of court. The judge of the court
where the case is pending shall personally
receive the evidence to be adduced by the
parties. However, in default or ex parte
hearings, and in any case where the
parties agree in writing, the court may
delegate the reception of evidence to its
clerk of court who is a member of the bar.
The clerk of court shall have no power to
rule on objections to any question or to
the admission of exhibits, which
objections shall be resolved by the court
upon submission of his report and the
transcripts within ten (10) days from
termination of the hearing. (n)
General rule: The judge shall personally receive and resolve the
evidence to be adduced by the parties.
However, the reception of such evidence may be delegated under
the following conditions:
1) the delegation may be made only in defaults or ex-
parte hearings; and in any case where the parties agree
in writing;
 2) the reception of evidence shall be made only by the
clerk of court, who is a member of the bar, of that
court;
3) said clerk shall have no power to rule on objections to
any question or to admission of evidence or exhibits;
and
4) he shall submit his report and transcripts of the
proceedings, together with the objections to be resolved
by the court within 10 days from the termination of the
hearing.
The Rules now expressly allows the court to delegate the
reception of evidence to the clerk of court who must be a
member of the bar. Thereby confirming the doctrine in
GOTINGCO vs. CFI OF NEGROS OCCIDENTAL and junking
forever the ruling in LIM TANHU vs. REMOLETE because in the
case of REMOLETE, it was ruled that the judge cannot delegate
the reception of evidence to the clerk of court. Now, puwede na.
A good example is DEFAULT. But actually, it could also be a
case where the parties agreed in writing or other cases where it
can be heard ex-parte other than default. Because there are
many cases na to my mind that the judge does not really need
to be there listening.
Like for example, a petition for the issuance of lost or transfer of
certificate – yung titulo mo nawala – your title is lost or you
misplaced it and you will prove na nawala. That should be heard
in court but to my mind that is not a controversy, eh because
there is only one party there. So it is possible for the court to
delegate that to the clerk of court in order that they (judges) can
attend to other controversial cases.
Now, please connect this provision with Section 3 of Rule 9 on
Default:
Sec. 3. Default; declaration of. - If the
defending party fails to answer within the
time allowed therefor, the court shall, upon
motion of the claiming party with notice to
the defending party, and proof of such
failure, declare the defending party in
default. Thereupon, the court shall
proceed to render judgment granting the
claimant such relief as his pleading may
warrant, unless the court, in its discretion
requires the claimant to submit evidence.
Such reception of evidence may be
delegated to the clerk of court. (1a, R18)
So in default hearing, it is now the discretion of the court either
to conduct an ex-parte reception of evidence which can be
delegated to the clerk of court, or the court may render
judgment based on the pleadings. So, it is optional.
Now, to my mind, kung ang case is a collection case or any other
cases which are simple, pag na-default ang defendant, puwede
na decision dayon. Pero kung controversial cases, do not render
judgment based on the pleadings. You better conduct an ex-
parte reception of evidence and you may delegate the reception
of evidence to the clerk of court.
Yun iyong mga out of ordinary cases which are really
controversial where the court should require the presentation of
evidence. Pero yong mga kaso na not so complicated, no need of
reception of evidence in order to expedite the process of
adjudication.
Rule 31
CONSOLIDATION OR SEVERANCE
SECTION 1. Consolidation. - When actions
involving a common question of law or
fact are pending before the court, it may
order a joint hearing or trial of any or all
the matters in issue in the actions; it may
order all the actions consolidated; and it
may make such orders concerning
proceedings therein as may tend to avoid
unnecessary costs or
delay. (1)
Consolidation involves several actions having a common
question of law or fact which may be jointly tried.
Severance contemplates a single action having a number of
claims, counterclaims, cross claims, 3rd party complaints or
issues which may be separately tried.
General rule: Consolidation is discretionary upon the court.
Exceptions: Consolidation becomes a matter of duty when
the cases are:
1) pending before the same judge; or
2) filed with different branches of the same RTC and one
of such cases has not been partially tried.
Purpose: To avoid multiplicity of suits, guard against oppression
or abuse, prevent delay, clear congested dockets, simplify the
work of the trial court and save unnecessary costs and
expenses.
Q: When is consolidation of actions proper?
A: Consolidation is proper:
1) when two or more actions involve the same or a
common question of law or fact; and
2) the said actions (at least 2) are pending before the
same court. (Section 1, Rule 31; PAL vs. Teodoro, 97
Phil. 461)
3) if filed with different courts, an authorization from the
Supreme Court is necessary.
First requisite: TWO OR MORE ACTIONS INVOLVE THE
SAME OR A COMMON QUESTION OF LAW OR
FACT
Did you notice that phrase – “two or more actions involve the
same or a common question of law or fact”? That phrase seemed
to be familiar. ”Common question of law or fact,” where did we
meet that requirement before? That is in joinder of causes of
action – two or more causes of action can be joined in one
pleading if they involve a common question of fact or law. Rule
3, Section 6:
 SEC. 6 Permissive joinder of parties – All persons in
whom or against whom any right to relief in
respect to or arising out of the same transaction or
series of transactions is alleged to exist, whether
jointly, severally, or in the alternative, may, except
as otherwise provided in these rules, join as
plaintiffs or be joined as defendants in one
complaint, where any question of law or fact
common to all such plaintiffs or to all such
defendants may arise in the action; but the court
may make such orders as may be just to prevent
any plaintiff or defendant from being embarrassed
or put to expense in connection with any
proceedings in which he may have no interest.
The phrase answers the questions:
Q: When may 2 or more parties be joined together in one
complaint, either as co-plaintiffs or co-defendants?
A: There must be a common question of fact or law involved in
their causes of action.
Q: When may actions be consolidated?
A: One of the requisites is: when the actions involve a common
question of law or fact.
In other words, there must be a connection somewhere between
the rule on Consolidation of actions in Rule 31, with the rule on
Permissive Joinder of Parties in Rule 3.
When we were in Rule 3, an EXAMPLE was given: Suppose 30
people were riding on a bus which met an accident and all the
plaintiffs were injured. After the incident, the 30 of them
decided to file claims for damages against the bus company.
They hired the same lawyer.
Q: Can the lawyer file 30 complaints for each plaintiffs?
A: YES.
Q: Can the lawyer file only one complaint naming as co-plaintiffs
the 30 injured passengers?
A: YES, that is permissive joinder of parties which is encouraged
to expedite litigation, to avoid multiplicity of suits, to economize
the procedure or avoid repetition of evidence. There are the
justification for permissive joinder of parties in Rule 3 Section 6
but they can only join one complaint if they have the same
lawyer.
Q: But suppose the 30 passengers were injured and after their
discharge from the hospital the 30 of them hired separate
lawyers.?
A: There can be no joinder of parties. You cannot join the parties
in one complaint because each plaintiff is represented by a
different lawyer.
In this case, there should be 30 complaints filed let’s say, in the
RTC of Davao City, and they are raffled to different branches or
judges. The defendant might feel that he would rather have the
30 cases tried together. Defendant says, “This is difficult.
Imagine 30 cases sa 30 salas? Iba-ibang courts. My witnesses
would have to testify 30 times because there are 30 separate
complaints.”
Q: Can the 30 cases be joined together para isang judge na
lang?
A: YES. The lawyer for the bus company can file a motion under
Rule 31, Section 1 to consolidate the actions. Meaning, the 30
cases should be raffled and assigned to only one judge, there
being a common question of law or fact. This is to economize
the procedure if the evidence will be presented only once. Thus,
every time when the case is called, the 30 cases would be tried
together. Para ka na ring nag-permissive joinder of parties.
The purpose of consolidation is to achieve the same effect of
permissive joinder of parties under Rule 3, Section 6. You end in
having only one case, kaya lang 30 complaints are to be tried
together. That is why there is a connection between
consolidation and permissive joinder of parties.
Second Requisite: THE SAID ACTIONS ARE PENDING
BEFORE THE SAME COURT
Q: In the example above, suppose one passenger filed his case in
Davao City, another passenger filed his case in Tagum because
he resides there, and another files his case in Mati, can there be
consolidation of their cases?
A: NONE. You cannot consolidate because they are pending in
different courts in different provinces. The law says it must be in
the same court.
Take note that cases are consolidated because it will expedite
their termination, thereby economizing on the procedure. Cases
are consolidated not only when the cases are before the trial
court. There are many times when cases are consolidated or
joined together even when they are already on appeal, provided,
there is a common question of law or fact.
If we look at the SCRA, sometimes the decision involves 2 or 3
cases. The caption sometimes has 3 or more cases, but there’s
only 1 decision. And these cases are coming from different parts
of the country. Why are these cases joined before the SC?
Because there is a common question of fact or law or legal issue.
So, even in the SC, cases are consolidated and decided together
for the first time. Ang tawag dyan is COMPANION CASES
because the same issues are being raised in the petitions.
Three (3) ways of consolidating cases:
1) by recasting the cases already instituted - reshaping of
the cases by amending the pleading and dismissing some
cases and retaining only one case. There must be joinder
of causes of action and of parties;
2) by consolidation proper or by consolidating the existing
cases - It is a joint trial with joint decision, the cases
retaining their original docket numbers; and
3) by test-case method - by hearing only the principal case
and suspending the hearing on the other cases until
judgment has been rendered in the principal case. The
cases retain their original docket numbers.
Consolidation of cases on appeal and assigned to different
divisions of the SC and the CA is also authorized.
The consolidation of civil and criminal cases is allowed. This is
now sanctioned under Section 2(a), R 111 of the Rules of
Criminal Procedure (Canos vs. Pealta, GR No. L-38352, Aug. 19,
1982)
CONSOLIDATION under RULE 31
vs.
CONSOLIDATION OF CRIMINAL ACTIONS under RULE 119

Now, there is also a provision in the rules on Criminal Procedure
on consolidation of criminal actions under Rule 119, Section
14:
SEC. 14. Consolidation of trials of related
offenses. - Charges for offenses founded on
the same facts, or forming part of a series
of offenses of similar character may be
tried jointly at the court's discretion.
(Rule 119)
Q: Distinguish Consolidation of civil actions from Consolidation
of criminal actions.
A: The following are the distinctions:
1) In civil cases, one or more causes of action may be
embodied in one complaint because when there is
permissive joinder, there is automatic consolidation
also;
whereas
In criminal cases, only one offense can be the subject
of one complaint or information. consolidation of
criminal actions is exclusively for joint trial;
Q: Can you file one complaint or information
embodying two or more crimes?
A: NO. You cannot. That is what you call duplicitous
complaint or information. There is no such thing as
joinder of crimes. Therefore, the so-called consolidation
of criminal actions is not actually filing one
information but it is only for the purpose of joint trial.
2) In civil cases, the opposite of consolidation is severance
under Section 2; whereas
In criminal cases, the opposite of consolidation is
separate trial. In reality, there is actually no
consolidation of criminal cases. There is only joint trial
of criminal cases.
Under the rules on Criminal Procedure the accused may reserve
the right to file the civil action separately when the criminal
action is filed, the civil action is deemed instituted unless the
offended party will make a reservation to file it separately. Or,
when the civil action was instituted ahead, the subsequent filing
of the criminal case will mean there is no more civil action there.
And Section 2 of Rule 111, suppose the offended party made a
reservation to institute a civil action and a criminal case is filed,
he cannot file the civil action – that’s the rule. He must wait for
the outcome of the criminal case. The criminal case enjoys
priority.
Q: What happens if na-una na-file yung civil action?
A: According to Section 2, Rule 111 from the moment the
criminal case is filed, the trial of the civil case is suspended to
wait for the outcome of the criminal case.
Q: Is this prejudicial to the offended party? What is the remedy
of the offended party?
A: There is a way out according to Section 2, Rule 111. The first
thing for him to do is to file a petition to consolidate the trial of
the criminal and civil case for them to be tried together and the
evidence already presented in the civil case is deemed
automatically reproduced in the criminal case. This is what you
call the consolidation of the civil and criminal action under
Section 2, Rule 111:
“…Nevertheless, before judgment on the merits
rendered in the civil action, the same may, upon
motion of the offended party, be consolidated with
the criminal action in the court trying the criminal
action…”
(Section 2, Rule 111)
Q: Is this consolidation mandatory?
A: NO. It is permissive. Actually, the offended party is the one to
initiate this because if not, then he has to wait for the criminal
case to be terminated before he can file the civil case.
Q: Can you move to consolidate in one court the criminal and
the civil case when actually the degree of proof required in one
case is different from the degree of proof required in another
case?
A: That was answered in the affirmative in the case of
CAÑOS vs. PERALTA – 115 SCRA 843
FACTS: This case originated in Digos, Davao del Sur, involving
the late Dr. Rodolfo Caños, who owned the Caños Hospital
there. The respondent here was former CFI Judge Elvino
Peralta. There was an incident which led to the filing of a
criminal case by A against B. A reserved the right to file a
separate civil action under the rules on criminal procedure. A
filed a separate civil case, but arising out of the same incident.
Both of the cases were assigned to Judge Peralta.
When Judge Peralta noticed that the 2 actions arose out of the
same incident – and the accused in the criminal case is also the
defendant in the civil case, and the offended party in the
criminal case is the plaintiff in the civil case, he ordered the
consolidation of the 2 cases under Rule 31, Section 1, to be tried
together.
Dr. Caños objected to the consolidation because according to his
lawyer, consolidation of cases under Rule 31, Section 1 applies
only when there are 2 or more civil cases to be considered.
ISSUE #1: Was the consolidation proper?
HELD: The order of consolidation is correct. Rule 31, Section 1
allows the consolidation of a criminal and civil case because of
the fact that there is a common question of fact or law between
them and that they are pending before the same court. As a
matter of fact, before the same judge.
ISSUE #2: How do you reconcile these cases because the degree
of proof in the criminal case is not the same in the civil case?
HELD: The consolidation was proper under Rule 31 because
there is a common question of fact and law. They can be
consolidated but for purposes of decision, the court will now
apply two (2) different criteria: Proof beyond reasonable doubt in
the criminal case and preponderance of evidence in the civil
case. So there is no incompatibility.
SEC. 2. Separate trials. - The court, in
furtherance of convenience or to avoid
prejudice, may order a separate trial of any
claim, cross-claim, counterclaim, or
thirdparty complaint, or of any separate
issue or of any number of claims, cross-
 claims, counterclaims, third-party
complaints or
issues. (2a)
Section 2 is the exact opposite of Section 1. In Section 1, there
are 2 or more cases which shall be joined together for joint trial.
In section 2, there is one case with several claims, i.e.
counterclaims, cross-claims and third-party complaints. The
rule states that they should be tried together, one after the
other, and then one decision.
So for example, you ask the judge for a separate schedule for
your 3rd-party claim. Then there will be a separate schedule for
the 3rd–party complaint rather than following the order of trial
under Rule 30. Under the order of trial, I have to wait for my
turn to prove my 3rd-party claim. If we follow Rule 30 (order of
trial) before it reaches the 3rd-party complaint, matagal
masyado.
But under Section 2, the court may grant a separate trial for
your 3rd-party claim or permissive counterclaim especially
when there is no connection between my permissive
counterclaim with the main action.
Rule 32
TRIAL BY COMMISSIONER
Trial by commissioner applies when there is something to be
tried which requires some technical expertise, like accounting,
which the court feels it does not possess, and it will be a waste
of time if everything will be tried in court. So, the court will refer
it to a commissioner, “You hear that and then you submit a
report. Submit you report, you finding and your recommendation.”
And that person is known as a commissioner.
Commissioner is a person to whom a case pending in court is
referred, for him to take testimony, hear the parties and report
thereon to the court, and upon whose report, if confirmed,
judgment is rendered (2 Martin, p. 142)
SEC. 1. Reference by consent – By written
consent of both parties, the court may
order any or all of the issues in a case to
be referred to a commissioner to be agreed
upon by the parties or to be appointed by
the court. As used in these Rules, the
word “commissioner” includes a referee,
an auditor and an examiner.
Reference to a commissioner may be had by the written consent
of both parties.
General rule: Trial by commissioner depends largely upon the
discretion of the court; but the following are instances when
such appointment is mandatory:
1) Expropriation (R 67);
2) Partition (R 69);
3) Settlement of Estate of a Deceased Person in case of
contested claims; and
4) Submission of accounting by executors or
administrators.
Note: An irregularity in the appointment of a commissioner must
be seasonably raised in the trial court where the defect could still
be remedied. It can be waived by consent of the partes or implied.
This was mentioned when we were talking about pre-trial. This
is
one of the purpose of a pre-trial. That is Rule 18, Section 2 [f]:
“(f)
The advisability of a preliminary reference of issues to a
commissioner; ” This provision is actually referring to Rule 32.
Example #1:
Prof. X and Magneto had continuous transactions. After a long
while, their records do not anymore reconcile. Prof. X filed a
case against Magneto on the ground that Magneto has not yet
paid an obligation which is already due. Based on Magneto’s
records, bayad na lahat. Wala na syang utang. This is a
question of accounting.
The court will have to determine whose records are correct and
accurate – invoices, receipts, etc… must be presented, which
might be hundreds or thousands in volume. This will consume
a lot of time of the court.
The fact that the case involves accounting and the judge is not
an accountant (it is different if the judge is a CPA/lawyer, hindi
mahirap), the judge then should appoint an accountant to assist
him. That accountant is known as the commissioner. That will
certainly shorten the time and expedite the resolution of the
case.
The judge can then attend to other cases while the parties are
presenting all their invoices and receipts before the
accountant/commissioner.
Example #2:
Prof. X and Magneto are owners of adjoining properties. Magneto
put up a fence. Prof. X sued Magneto for forcible entry on the
ground that Magneto encroached on Prof. X’s ground, and
praying for the recovery of, say, 200 meters. Magneto contends
that he built the fence on the boundary line.
The judge will look at the title of the land: “point degree
9, etc..” – only surveyor or a geodetic engineer
understands that! In this case, the court may appoint
a geodetic engineer, order the submission of the titles
of the lands to him, he will go to the area, sukat-
sukatin niya, and he will draw a sketch and then
based on the sketch, he will determine whether or not
there is an encroachment. The appointed surveyor or
geodetic engineer is called a commissioner.
This is what you call trial by commissioner. And take note that
under Section 1, trial by commissioner is possible by mutual
agreement of the parties. The parties must agree. Either you can
agree on who is the CPA, who is the engineer, or you can ask
the court to appoint somebody
Q: Suppose the parties cannot agree, or one party files a motion
asking for the appointment of a commissioner. Is the court still
empowered to apply Rule 32?
A: YES, under section 2:
SEC. 2. – Reference ordered on motion – When the
parties do not consent, the court may, upon
the application of either or of its own motion,
direct a reference to a commissioner in the
following cases:
 a.) When the trial of an issue of fact requires
the examination of a long account on either
side, in which case the commissioner may be
directed to hear and report upon the whole
issue or any specific question involved therein;
b.) When the taking of an account is necessary
for the information of the court before
judgment, or for carrying a judgment or order
into effect;
c.) When a question of fact, other than upon
the pleadings, arises upon motion or otherwise,
in any stage of a case, or for carrying a
judgment or order into effect.
Section 1 is reference by consent and Section 2 is reference
ordered on motion. Paragraphs (a), (b) and (c) are the good
grounds for a motion to appoint a commissioner.
In (a), it requires an examination of a long account. The best
example here is example #1 – accounting.
In (b) and (c), notice that a commissioner may be appointed for
carrying a judgment or order into effect. Thus, a commissioner,
can be appointed not only to help the court render a decision,
but also help the court enforce a decision – even if tapos na ang
case. Because sometimes, problems arise on how to implement
a decision of the court.
Example: There was a case of boundary dispute. Prof. X built
his house near the boundary of his property. According to his
neighbor, Magneto, a portion of the house of Prof. X encroached
on his land. About 25 sq. m. lang. Prof. X lost. The court says
to Prof. X: “You are directed to return the 25 sq. m. which you
occupied.” The sheriff will go there to return the 25 sq. m.
Which part of the house will the sheriff demolish? The sheriff
returns to the court because he cannot understand and he does
not know how to implement the decision. So, the court solves
that by appointing a surveyor as a commissioner to find out
where that 25 sq. m. will be taken from the portion of the house.
Q: Give other examples of trial by commissioner.
A: The following:
1.) Special Civil Action of Expropriation under Rule 67
– when the court has to determine just
compensation. Under Rule 67, it is mandatory for
the court to appoint a commissioner in order to
determine as to how much the value of the
property;
2.) Special Civil Action of Partition under Rule 69.
When the
heirs cannot agree on how to partition a property
under co-ownership, the court may appoint a
commissioner to study and submit its report.
So take note that trial by commissioner is allowed not only for
the purpose of the court rendering the judgment but also for the
purpose of carrying a judgment or order into effect.
SEC. 3. Order of reference; powers of the
commissioner. - When a reference is made,
the clerk shall forthwith furnish the
commissioner with a copy of the order of
reference. The order may specify or limit
the powers of the commissioner, and may
direct him to report only upon particular
issues, or to do or perform particular acts,
or to receive and report evidence only,
and may fix the date for beginning and
closing the hearings and for the filing of
his report. Subject to the specifications
and limitations stated in the order,the
commissioner has and shall exercise the
power to regulate the proceedings in every
hearing before him and to do all acts and
take all measures necessary or proper for
the efficient performance of his duties
under the order. He may issue subpoenas
and subpoenas duces tecum, swear
witnesses, and unless otherwise provided
in the order of reference, he may rule
upon the admissibility of evidence. The
trial or hearing before him shall proceed
in all respects as it would if held before
the court.
(3a, R33)
Requisites of the order of reference;
1) it must state the purpose;
2) it must be in writing; and
3) it may specify or limit the power of the commissioner.
Powers of Commissioner:
1) exercise power to regulate the proceedings before him;
2) do all acts and take all measures necessary or proper
for the efficient performance of his duties;
3) swear witnesses;
4) issue subpoenas and subpoenas duces tecum;
5) unless otherwise provided in the order of reference,
rule upon the admissibility of evidence.
Note: Requirement of hearing cannot be dispensed with as this
is the essence of due process.
So a commissioner is parang judge rin. In effect he is an
assistant judge. Biro mo, he can issue subpoenas, swear
witnesses, and unless otherwise provided in the order of
reference, may rule upon the admissibility of evidence, of
course, subject to the final approval of the court.
Compare that with Rule 30 when there is an ex-parte reception
of evidence where the clerk of court is delegated to receive
evidence.
But the clerk of court cannot rule on the admissibility of
evidence.
To my mind, for example, in cases involving accounting, the best
commissioner would be a CPA-lawyer because he knows about
the law on evidence and accounting. Kung boundary conflicts
naman, the best. commissioner would be a geodetic engineer-
lawyer.
However, you rarely find that combination.
SEC. 4. Oath of commissioner. - Before
entering upon his duties the commissioner
shall be sworn to a faithful and honest
performance thereof. (14, R33)
SEC. 5. Proceedings before commissioner. -
Upon receipt of the order of reference and
unless otherwise provided therein, the
commissioner shall forthwith set a time
and place for the first meeting of the
parties or their counsel to be held within
ten (10) days after the date of the order of
 reference and shall notify the parties or
their counsel. (5a,
R33)
SEC. 6. Failure of parties to appear before
commissioner. - If a party fails to appear at
the time and place appointed, the
commissioner may proceed ex parte or, in
his discretion, adjourn the proceedings to a
future day, giving notice to the absent
party or his counsel of the adjournment.
(6a, R33)
Where the order was merely to examine the accounts involved
in the counterclaim without any direction to hold hearings, the
commissioner do not need the presence of the parties (Froilan
vs. Pan Oriental Shipping
GR No. L-6060, Sept. 30, 1954)
SEC. 7. Refusal of witness. - The refusal of a
witness to obey a subpoena issued by the
commissioner or to give evidence before
him, shall be deemed a contempt of the
court
which appointed the commissioner. (7a, R33)
EXAMPLE: I, as a commissioner, subpoenaed you and you will
not show up. I will report you to the court which appointed me
and the court which appointed me will declare you in contempt
of court. Remember, the commissioner is acting by authority of
the judge.
That’s why he has powers under the law.
SEC. 8. Commissioner shall avoid delays. -
It is the duty of the commissioner to
proceed with all reasonable diligence.
Either party, on notice to the parties and
commissioner, may apply to the court for
an order requiring the commissioner to
expedite the proceedings and to make his
report. (8a, R33)
The commissioner shall expedite the proceedings. He should
hurry up the report.
Sec. 9. Report of commissioner. - Upon the
completion of the trial or hearing or
proceeding before the commissioner, he
shall file with the court his report in
writing upon the matters submitted to
him by the order of reference. When his
powers are not specified or limited, he
shall set forth his findings of fact and
conclusions of law in his report. He shall
attach thereto all exhibits, affidavits,
depositions, papers and the transcript, if
any, of the testimonial evidence
presented before him. (9a, R33)
Delegation to Clerk of Court and Trial by Commissioner
1) The Clerk of Court must be a lawyer while a
commissioner need not be a lawyer;
2) The Clerk of Court cannot rule on objections
or on the admissibility of evidence while the
commissioner can;
3) Delegation to the clerk of court is made during
trial while a commissioner can be appointed
even after the case has become final and
executory.
SEC. 10. Notice to parties of the filing of report.
- Upon the filing of the report, the parties
shall be notified by the clerk, and they shall
be allowed ten (10) days within which to
signify grounds of objections to the findings
of the report, if they so desire. Objections
to the report based upon grounds which
were available to the parties during the
proceedings before the commissioner, other
than objections to the findings and
conclusions therein set forth, shall not be
considered by the court unless they were
made before the
commissioner. (10, R33)
Of course, the parties are given a copy of the report. And
if it is against you, you can question the findings of that
commissioner. Sometimes, it is very difficult because
there is already a court appointed commissioner but you
have to get another CPA to check on his report.
Note: Objections to the report based upon grounds
which were available to the parties during the
proceedings before the commissioner shall not be
considered by the court, unless they were made
before the commissioner.
SEC. 11. Hearing upon report. - Upon the
expiration of the period of ten (10) days
referred to in the preceding section, the
report shall be set for hearing, after which
the court shall issue an order adopting,
modifying, or rejecting the report in whole
or in part, or recommitting it with
instructions, or requiring the parties to
present further evidence before the
commissioner or the court. (11a, R33)
When the commissioner files his report with the court, the court
will now schedule it for hearing. The parties will be furnished
copies and during the hearing, if you do not agree with the
report, you can present objections thereto or criticize the report.
You can defend or attack it. The court will then determine
whether to accept the report or not.
That’s why under Section 11, the court shall issue an order
adopting, modifying, rejecting the report, in whole or in part, or
recommitting (ibalik) it to the commissioner with instruction, or
requiring the parties to present further evidence. The court is
not bound 100% to swallow everything in the report. But the
court rarely rejects the report of the commissioner, unless
talagang there is no basis for it. Chances are, when the report
has support, talo ka na. Although it is not conclusive.
Now take note that when the court approves a report, the
findings of the commissioner becomes the findings of the court.
Q: So, can the findings of the commissioner on question of fact
be questioned by the parties?
A: YES, under Section 11.
Q: Is there an exception that the finding of the commissioner on
factual issues become final and no longer be questioned?
A: YES, under Section 12:
SEC. 12. Stipulations as to findings. - When
the parties stipulate that a commissioner's
 findings of fact shall be final, only
questions of law shall thereafter be This is the only instance where you cannot question the
considered. (12a, R33) commissioner’s report – when there is already an agreement
beforehand that the findings of fact by the commissioner are final, we accept. So the
principle of estoppel applies in this case and only questions of law will then be
considered. Meaning, factual issues are binding upon the parties.

SEC. 13. Compensation of commissioner. - The court shall allow the

commissioner such reasonable compensation as the circumstances of
the case warrant, to be taxed as costs against the defeated party, or
apportioned, as justice requires. (13, R33)

Q: Is the commissioner entitled to compensation?

A: YES, of course. Mahirap na trabaho ito. Imagine you will hire a reputable
CPA tapos walang bayad? Sinong papayag niyan?

Q: How is the commissioner paid?

A: To be taxed as costs against the defeated party, or apportioned.
In most cases it is apportioned – 50-50 [isa gatos tanan!]

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)
Nature: There is only a one-sided trial, i.e., it is only the plaintiff
who has presented evidence.
Purpose: To discourage prolonged litigation.
Q: 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 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.
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
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
nonextendible 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)
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?
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.
Demurrer to Evidence and Motion to Dismiss under R 16
1) Demurrer is presented after the plaintiff has rested his
case while a motion to dismiss is presented before a
responsive pleading is served by the defendant;
2) A demurrer is grounded on insufficiency of evidence
while a motion to dismiss has several grounds;
 3) if the motion is denied the defendant may present his
evidence while if the motion to dismiss is denied the
defendant may file his responsive pleading;
4) If the motion is granted, the complaint is dismissed.
The remedy of the plaintiff is to appeal while if the
motion to dismiss is granted, the complaint is
dismissed and depending on the ground, the complaint
may be re-filed.
Effect of Denial of the Demurrer to Evidence
1) If the demurrer is denied, the defendant shall have the
right to present his evidence (Sec. 1). This means that
the denial of the demurrer to evidence does not deprive
the defendant to adduce evidence in his behalf.
2) Where a court denies a demurrer to evidence, it should
set the date for the reception of the defendant’s
evidence in chief. It should not proceed to grant the
relief demanded by the plaintiff (Northwest Airlines,
Inc. vs. CA 284 SCRA 408).
3) An order denying a demurrer to the evidence is
interlocutory and is therefore, not appealable. It can
however, be the subject of a petition for certiorari in
case of grave abuse of discretion or an oppressive
exercise of judicial authority (Katigbak vs.
Sandiganbayan 405 SCRA 558).
4) Note that a party who, files a demurrer to evidence
that is subsequently denied in an election case, cannot
insist on the right to present evidence. The provision of
the Rules of Court governing demurrer to evidence
does not apply to an election case (Gementiza vs.
Comelec 353 SCRA 724). The Rules of Court, under
the express dictum in Sec. 4 of Rule 1 “shall not apply
to election cases, land registration, cadastral,
naturalization and insolvency proceedings…”
Effect of Granting of the Demurrer to 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.”
1) If the demurrer is granted, the case shall be dismissed.
However, if on appeal the order granting the motion is
reversed, the defendant loses the right to present
evidence (Sec. 1; Republic vs. Tuvera GR No. 148246,
February 16, 2007).
2) It is not correct for the appellate court reversing the
order granting the demurrer to remand the case to the
trial court for further proceedings. The appellate court
should, instead of remanding the case, render
judgment on the basis of the evidence submitted by
the plaintiff (Radioweath Finance Corporation vs. del
Rosario 335 SCRA 288).
3) A demurrer to evidence abbreviates judicial
proceedings, it being an instrument for the expeditious
termination of an action. Caution, however, must be
exercised by the party seeking dismissal of a case
upon this ground as under the rules, if the movant’s
plea for the dismissal on demurrer to evidence is
granted and the order of dismissal is reversed on
appeal, he loses his right to adduce evidence. If the
defendant’s motion for judgment on demurrer to
evidence is granted and the order is subsequently
reversed on appeal, judgment is rendered in favor of
the adverse party because the movant loses his right to
present evidence. The reviewing court cannot remand
the case for further proceedings; rather, it should
render judgment on the basis of the evidence
presented by the plaintiff (The Consolidated Bank and
Trust Corporation vs. Del Monte Motor Works, Inc., GR
No. 143338, July 29, 2005).
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?
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.
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. 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.

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.” Rule 34

Judgment on Demurrer to Evidence is a judgment rendered by JUDGMENT ON THE PLEADINGS

the court dismissing a case upon motion of the defendant, made
after plaintiff has rested his case, on the ground that upon the
SEC. 1. Judgment on the pleadings.- Where
facts presented and the law on the matter, plaintiff has not
an answer fails to tender an issue, or
shown any right to relief. otherwise admits the material allegations
of the adverse party's pleading, the court
Note: The requirement under the Rule would apply if the may, on motion of that party, direct
demurrer is granted, for in this event, there would in fact be judgment on such pleading. However, in
adjudication upon the merits of the case, leaving nothing more to actions for declaration of nullity or
be done (Nepomuceno v. COMELEC, GR No. L-60601, Dec. 29, annulment of marriage or for legal
1983). separation, the material facts alleged in
the complaint shall always be proved. (1a,
R19)

Judgment on the pleadings is an expeditious way of terminating

a civil action. There is no more trial and judgment will be
rendered based on what the plaintiff says in his pleadings.

Judgment on the pleadings is a judgment rendered by the

court if the answer fails to tender an issue, or otherwise admits
the material allegations of the adverse party's pleading.

It is rendered without a trial, or even without a pre-trial.


Nature of judgment on the pleadings
1) The concept of a judgment on the pleadings will not
apply when no answer is filed. It will come into
operation when an answer is served and filed but the
same fails to tender an issue or admits the material
allegations of the adverse party’s pleading (Sec. 1)
2) An answer fails to tender an issue when the material
allegations of the other party are admitted or not
specifically denied by the pleader. Under the rules,
material allegations of the complaint are deemed
admitted (sec. 11 R 8).
3) When there is no answer, the proper remedy for the
plaintiff is to file a motion to declare defendant in
default.
A motion is required
A judgment on the pleadings must be on motion of the claimant.
However, if at the pre-trial the court finds that a judgment on
the pleadings is proper, it may render such judgment motu
proprio
(sec. 2g R 18)
One who prays for judgment on the pleadings without offering
proof of his own allegations and without giving the opposing
party any opportunity to introduce evidence must be
understood to admit all the material and relevant allegations of
the opposing party and to rest his motion for judgment on those
allegations taken together with such of his own as are admitted
in the pleadings (Falcasantos vs. How Suy Cheng GR No. l-
4229, May 29,
1952)
Allegations not deemed admitted by filing a motion for
judgment on the pleadings:
1) Irrelevant allegations;
2) Immaterial allegations; and
3) Allegations of damages in the complaint.
Illustration:
PROBLEM: Plaintiff files a complaint. Defendant files an
answer. The answer contains what you call defenses – negative,
affirmative defenses. Now, after the defendant files the answer,
his issues are joined. Next step is pre-trial. If the case is not
terminated in pretrial, next step is trial. That’s the procedure.
But suppose I will file a complaint against you and you file your
answer where you admitted everything that I said in my
complaint. All the allegations in the complaint are admitted and
no defense was interposed by the defendant. So, meaning, the
defendant filed an answer which contains no defense at all.
Everything is admitted. Should the case go to trial? Should the
plaintiff prove his cause of action? What is there to prove when
you admitted everything? So, there is no more trial because
everything is admitted by the defendant.
Q: In the above case, what should the plaintiff do?
A: The plaintiff will now apply Rule 34. He will file a motion in
court which is known as Judgment on the Pleadings. He will ask
the court to render judgment based on what the complaint says
and what the answer says. No more evidence. Eto ang sabi ng
complaint, “Oh! You borrowed money, and you did not pay.”
Sabi ng answer, “admit! admit! admit!” Oh, ano pa? What is
there to be tried? You admitted everything, so the court will
now decide! You can render a decision based on what the
complaint says and what the answer says and the court will
immediately render judgment for the plaintiff. So wala ng trial.
Rule 34 is one of the procedures or remedies under the Rules of
Court for the prompt expeditious resolutions of civil actions –
one of the fastest ways of resolving a civil dispute because
plaintiff files the complaint, defendant files his answer, plaintiff
asks for judgment and the case is decided. No more pre-trial,
no more trial. Why? There is nothing to try kasi wala ka mang
depensa.
Everything that I say in my complaint you admit.
Grounds for Judgment on the pleadings
Q: Under Rule 34, what are the grounds for Judgment on the
Pleadings?
A: The following are the grounds:
1) When an answer fails to tender an issue; or
2) When an answer otherwise admits all the material
allegations of the adverse party’s pleading.
Q: When does an answer fail to tender an issue?
A: An answer fails to tender an issue:
1) when it neither admits nor denies the allegations in
the complaint;
It neither admits nor denies. So, you cannot do that.
Either you admit or you deny the allegations in the
complaint. You cannot say, “Defendant does not
admit, he does not also deny the allegation.” Meaning
you are trying to be evasive. That is not allowed.
2) when all the denials in the answer are general denials
and not specific.
A denial is general if the pleader does not state the
facts relied upon in support of his denial – “Defendant
denies the allegations in paragraphs 1, 2, 3, 4, 5, 6, 7
and 8.” That is an answer which does not tender an
issue because all the denials are general, or no
knowledge or information sufficient to form a belief.
Just like what happened in the case of CAPITOL
MOTORS vs. YABUT.
Note: By moving for judgment on the pleadings, plaintiff
waives his claim for unliquidated damages. Claim for such
damages must be alleged and proved.
So if an answer contains evasive allegations, denials which are
general, it does not also tender any issue aside from the fact
that it also admits the law. Consider it as an admission of the
material allegations of the complaint. Therefore plaintiff will
now move for an immediate judgment in his favor. That is why
it is called judgment on the pleadings.
Now, judgment on the pleadings has already been mentioned in
the previous rule that we took up. Let’s go back to pre-trial in
Rule 18 because there is a mention there on judgment on the
pleadings.
Section 2, Rule 18:
SEC. 2. Nature and purpose. - The pre-trial is
mandatory. The court shall consider:
 xxx Note: If the complaint states no cause of action, a motion to
dismiss should be filed and not a motion for judgment on the
g) The propriety of rendering judgment on pleadings.
the pleadings, or summary judgment, or
of dismissing the action should a valid A judgment on the pleadings is one that is considered ex parte
ground therefor be found to exist. because upon particular facts thus presented, the plaintiff is
xxx entitled to judgment or motu proprio under Rule 18 2g (Dino v.
Valencia GR No. L-43886 July 19, 1989)
In other words, during the pre-trial, the defendant there and
based on his pleadings, meron siyang defense. But during the
pre-trial, he makes now an admission, “Actually, your honor,
wala akong depensa ba. I have no defense.” Court: “Ah, wala
ka ba? Okay.
Judgment on the pleadings!” – tapos!

Or, another example: Collection case. According to the

defendant in his answer the obligation is paid. And then during
the trial, the court asks the defendant, “Are you serious that the
obligation is paid?” Defendant: “Actually your honor, wala pa.
Hindi pa bayad.” Court: “Ganoon ba? O plaintiff, what do you
say?” Plaintiff: “I move for judgment on the pleadings.” Tapos!
The case is finished because the admission is made in the
course of the pre-trial that he has no valid defense.

CASES WHERE JUDGMENT ON THE PLEADINGS WILL

NOT
APPLY

Q: Give the exceptions to the rule on judgment on the pleadings.

A: Judgment on the pleadings does not apply:

1) in actions for declaration of nullity or annulment of

marriage; or
Rule 35
2) in actions for legal separation;
3) when the issue is the amount of unliquidated damages
SUMMARY JUDGMENTS
because there must always be evidence to prove such
amount (Rule 8, Section 11);
4) when only conclusions of law are being alleged. Rule 35 is another important rule – Summary judgments. The
rule on summary judgments and judgment on the pleadings are
similar no? They are related to each other. I would say they are
So, judgment on the pleading is not allowed on actions for
brothers. Rule 34 and Rule 35, magkapatid ‘yan silang dalawa
nullity of marriage or for legal separation. It cannot be resolved
because they have a common denominator. Rule 35 is also a
based only on what the complaint and what the answer says.
speedy procedure for the early resolution or decision in a civil
Otherwise, if we will allow Rule 34 in that kind of action, then it
case. The same concept but with a difference. In Rule 34 on
is very easy for husbands and wives to have their marriages
judgment on the pleadings, the answer filed by defendant has
annulled or in obtaining a legal separation. So, the husband
put up no defense at all. No defense has been raised or the
and the wife, they quarrel and they decide: “O, sige. I-admit mo
answer admits all the material allegations in adverse party’s
lahat para judgment
pleadings. In Rule 35, the answer filed by defendant puts up a
on the pleadings na! Eh, di tapos!”
defense but the defense is not a genuine defense. Meaning, it is
invoked only for the purpose of delay and the defense is not
My golly! The court will never allow that to succeed simply actually seriously being interposed.
because the other party admitted everything. That would be a
license for collusion. It’s not as easy as that. Walang judgment
Q: Define summary judgment procedure.
on the pleading sa marriage. In other words, no allegation is
deemed admitted even if the other party admits. You still have
to prove or disprove. A: Summary judgment procedure is a method for promptly
disposing of actions in which there is no genuine issue as to any
material fact. (De Leon vs. Faustino, L-15804, Nov. 29, 1960)
So, the premise is similar to Rule 9 on Defaults. There is no
default judgment in actions for legal separation based on the
same principle eh! It is a one-sided story and collusion or Summary judgment is a judgment rendered by a court without
connivance between the parties is possible. trial if it is clear that there exists no genuine issue or
controversy as to any material @fact, except as to the amount of
damages.
Motion to Dismiss and Motion for Judgment on the
pleadings
For summary judgment to be proper, two (2) requisites must
concur, to wit:
A motion to dismiss is filed by a defendant to a complaint,
counterclaim, cross claim or third-party complaint; while a the
latter is filed by the claiming party if the answer fails to tender 1) there must be no genuine issue on any material fact,
an issue or admits the material allegations in the claim. except for the amount of damages; and
 2) the moving party must be entitled to a judgment as a
matter of law.
When on their face, the pleadings tender a genuine issue,
summary judgment is not proper. An issue is genuine if it
requires the presentation of evidence as distinguished from a
sham, fictitious, contrived or false claim. (Ontimare vs. Elep GR
No. 159224, January
20, 2006)
Even if the answer does tender an issue, and therefore a
judgment on the pleadings is not proper, a summary judgment
may still be rendered if the issues renderer are not genuine, set-
up in bad faith and patently insubstantial (Vergara vs. Suelto
GR No. L-74766, Dec.
21, 1987)
Nature of Summary Judgment
1) A summary judgment, also called accelerated judgment,
is proper where, upon a motion filed after the issues
had been joined and on the basis of the pleadings and
papers filed, the court finds that there is no genuine
issue as to any material fact except as to the amount of
damages (Ley Construction and Development
Corporation vs. Union Bank GR No. 133801’ June 27,
2000; Spouses Agbada vs. Inter-Urban developers Inc.,
GR No. 1445029, September 19, 2000; Raboca vs. Velez
341 SCERA 543). Under the Rules, when there is no
genuine issue as to any material fact, other than for
instance, the amount of damages, and the moving party
is entitled to a judgment as a matter of law, a summary
judgment may be rendered.
2) What triggers a summary judgment is the absence of a
genuine factual issue. It is not proper where there are
factual issues to be resolved by the presentation of
evidence. Even if there is a complicated question of law
if there is no issue as to the facts, a summary judgment
is not barred (Velasco v. CA 329 SCRA 392; Garcia vs.
CA 336 SCRA 475).
3) In an action for foreclosure of mortgage for example, the
material issues are the existence of the debt and its
demandability. When the defendant admits the
existence of the debt and raises an issue as to the
demandability of the debt or the interest rate involved
because of an alleged contemporaneous agreement
between the parties, the issue tendered is sham,
fictitious, or patently unsubstantial. A summary
judgment would be proper because there is no genuine
issue (Sps. Agbada vs. Inter-
Urban Developers Inc., supra)
Where only the genuineness and due execution of the
promissory note are the matters deemed admitted for
the failure of the defendant to deny the same under
oath, a summary judgment is not proper.
In an action for a sum of money, where the debt and the
fact of its non-payment is admitted and the only issue
raised is the rate of interest and the damages payable,
there is no genuine issue and a summary judgment
may be rendered upon proper motion.
4) The Court, in Asian Development and Construction
Corporation vs. PCIB, GR No. 153827, April 25, 2006,
reiterated the principles governing summary judgment
as follows:
“…Under the Rules, summary judgment is
appropriate when there is no genuine issues of fact
which call for the presentation of evidence in a
full-blown trial. Even if on their face the pleadings
appear to raise issues, when the affidavits, depositions
and admissions show that such issues are not
genuine, then summary judgment as prescribed by the
Rules must ensue as a matter of law. The
determinative factor, therefore, in a motion for
summary judgment is the presence or absence of a
genuine issue as to any material fact.”
Meaning of genuine issue
A “genuine issue” is an issue of fact which requires
the presentation of evidence as distinguished from a
sham, fictitious, contrived or false claim. When the
facts as pleaded appear uncontested or undisputed,
then there is no real or genuine issue or question as to
the facts, and summary judgment is called for. The
party who moves for summary judgment has the
burden of demonstrating clearly the absence of any
genuine issue of fact, or that the issue posed in the
complaint is patently unsubstantial so as not to
constitute a genuine issue for trial. Trial courts have
limited authority to render summary judgments and
may do so only when there is clearly no genuine issue
as to any material fact. When the facts as pleaded by
the parties are disputed or contested, proceedings for
summary judgment cannot take the place of trial.
Genuine issue is an issue of fact which calles for the
presentation of evidence as distinguished from an
issue which is shamm, fictitious, contrived, and
patently unsubstantial so as not to constitute a
genuine issue for trial.
5) The trial court cannot motu proprio decide that
summary judgment on an action is in order. Under the
applicable provisions of Rule 35, the defending party or
the claimant, as the case may be, must invoke the rule
on summary judgment by filing a motion. The adverse
party must be notified of the motion for summary
judgment and furnished with supporting affidavits,
depositions or admissions before hearing is conducted.
More importantly, a summary judgment is permitted
only if there is no genuine issue as to any material fact
and a moving party is entitled to a judgment as a
matter of law (Pineda vs. Heirs of Eliseo Guevara GR No.
143188, February 14, 2007).
Relation to Rule 17 and Rule 18
Now, Summary Judgment is related to Rule 17 Section 1 in
which summary judgment is first mentioned:
Rule 17, Section 1. Dismissal upon notice by
plaintiff. - A complaint may be dismissed
by a plaintiff by filing a notice of dismissal
at any time before service of the answer or
of a
motion for summary judgment. xxx
Q: Can the plaintiff dismiss his complaint as a matter of right?
A: YES, at any time before the defendant has filed his answer or
of
a motion for summary judgment. (Rule 17, Section 1)
The second time that it was mentioned was in Rule 18 Section
2:
 Rule 18, Sec. 2. Nature and purpose. - The
pre-trial is mandatory. The court shall
consider:
xxx
(g) The propriety of rendering judgment on
the pleadings, or summary judgment, or of
dismissing the action should a valid ground
therefor be found to exist;
xxx
Sec. 1. Summary judgment for claimant. - A
party seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a
declaratory relief may, at any time after
the pleading in answer thereto has been
served, move with supporting affidavits,
depositions or admissions for a summary
judgment in his
favor upon all or any part thereof. (1a, R34)
For EXAMPLE: I will file a collection case against you and then
you claim that you have paid already. But in reality, it is not
paid. So I know that you are lying. Ikaw naman na defendant,
you know also that you are lying, what you are after is to
prolong the case.
Q: As the plaintiff, what should I do?
A: I should execute affidavit stating under oath and under pain
of perjury that you have not paid me. I will attach that to my
motion. Well, of course, you know very well that if I file an
affidavit by stating that what you are saying is false, and if I tell
a lie, you can file a case of perjury against me. But since I know
that I am correct, I will dare to execute an affidavit under oath.
Therefore, since his defense is false, I’m asking for an immediate
decision.
Now, if you are the defendant and you received a copy of my
motion, you can oppose my motion for summary judgment
where you will say, “No! I paid and my defense is genuine!” The
defendant must also execute an affidavit to support his position.
So you will say under oath that you paid me.
So it will become a battle of affidavits versus affidavits under
oath. It is possible that one of us will go to jail for telling a lie.
So tingnan natin kung sinong matapang dito. Kung baga, if
your defense is not very serious and not genuine, chances are,
you will not dare to execute an affidavit claiming that you have
paid the obligation. Takot ka man diyan ba. So if you will not
execute an affidavit but you still claim that you have paid me, it
is now very obvious that the defense of payment is false … and
the court will say, “Tama na ang pagsisinungaling! Taob ka na!”
That is summary judgment where the court will say, “No more
trial. The affidavit will take the place of evidence in court.” That
is what the rule is all about.
Rule 35 is similar to judgment on pleadings under Rule 34 but
the main difference is: In judgment on the pleadings, the answer
does not put up a defense while in summary judgment, here it
puts up a defense but the defense is not genuine – it is a false
defense which should easily be exposed by way of affidavits for
summary judgment.
Now take note, there is no genuine issue because if you look at
the complaint and the answer there is an issue because the
answer alleges payment. That is an issue. But in reality that is
a false issue.
That is why it is not a genuine issue.
Some text writers call the law on summary judgment another
name – it is known as the law on Accelerated Judgment.
Meaning, the process will accelerate, you can easily go to trial.
Instead of going to trial, there is no more trial. The motion for
summary judgment will determine who is telling the truth and
who is not telling the truth…immediately. So at least, the delay
has been avoided.
What is the example I gave you, no? “A party seeking to recover
a claim…” Ako, I will file against you a case of recovery of an
unpaid debt. “or cross-claim etc. at any time after the pleading if
answer thereto has been served…” meaning , after your answer
has been served, I will move with supporting affidavits,
depositions or admissions for a summary judgment in my favor.
So my motion for summary judgment must be supported with
affidavits, or depositions, or admissions. These will be the basis
unlike in the previous rule (Rule 34), there are no affidavits to
support a judgment on the pleadings. All you have to do is ask
the court , “Look at the complaints and look at the answer…”
But here, you will prove that the defense is false and you
demolish it by way of affidavits.
Q: Is summary judgment applicable to all kinds of civil actions?
A: YES, because in most cases, defendants will file an answer
with defenses but they are all false. In other words, these
defenses are only interposed to delay the case. So, summary
judgment is applicable to accelerate the decision. That’s why it
is similar to Judgment on the Pleadings.
Just like in the previous rule (Judgment on the Pleadings) in
certain types of cases like declaration of nullity of marriage,
annulment of marriage, legal separation, based on the same
principle that there must always be a trial in these cases, where
a ground was established based on the same principle of
analogy.
Q: Is Summary Judgment available only to the plaintiff? Can a
defendant move for Summary Judgment against the plaintiff?
A: YES, that is also allowed under Section 2:
Sec. 2. Summary judgment for defending
party. - A party against whom a claim,
counterclaim, or cross-claim is asserted or
a declaratory relief is sought may, at any
time, move with supporting affidavits,
depositions or admissions for a summary
judgment in his
favor as to all or any part thereof. (2a, R34)
Who can file:
1) Plaintiff - may file the motion after the answer has
been served, and therefore, must wait until the issues
have been joined.
2) Defendant - he can move for summary judgment at
any time.
Test: Whether or not the pleadings, affidavits and exhibits in
support of the motion are sufficient to oversome the opposing
papers and to justify the finding that, as a matter of law, there is
no defense to the action or claim is clearly meritorious (Estrada
vs.
Consolacion, et al., GR No. L-40948 June 29, 1976).
Normally, the party who avails of summary judgment is the
plaintiff. But this remedy is not limited to the plaintiff. The
defendant can also file a motion for Summary Judgment against
the plaintiff because the cause of action is sham. SO, if the
remedy of Summary Judgment is available to the plaintiff, it can
also be availed by the defendant. How?
EXAMPLE: You file a complaint against me. Of course, your
complaint puts up a cause of action, but I know very well that
your cause of action is false, although it’s very rare, usually it is
the defendant who is delaying the case. Well, I could always file
an answer and there would be pre-trial but sabi ko, “Matagal pa
iyon!” So under Section 2, instead of filing an answer, I can file
a motion for Summary Judgment and I will attach to my motion
affidavits to show that the cause of action is not genuine. And if
the plaintiff believes that his cause of action is genuine, he
might as well oppose my motion with counter-affidavits. Now, if
you will not, then the court will rule in my favor, dismissing
your complaint.
So you notice, Summary Judgment may be availed of by either
party – either the defense is not genuine or the cause of action
is not genuine.
SEC. 3. Motion and proceedings thereon. - The
motion shall be served at least ten (10)
days before the time specified for the
hearing. The adverse party may serve
opposing affidavits, depositions, or
admissions at least three (3) days before
the hearing. After the hearing, the
judgment sought shall be rendered
forthwith if the pleadings, supporting
affidavits, depositions, and admissions on
file, show that, except as to the amount of
damages, there is no genuine issue as to
any material fact and that the moving
party is entitled to a judgment as a matter
of law. (3a, R34)
The motion must also satisfy the requirements under Rule
15
If I will file a motion for Summary Judgment, I must set it for a
hearing just like any other motion. Now, generally, if I will file a
motion for Summary Judgment, you must be served a copy at
least 10 days before the hearing. That’s an exception to the
general rule in Rule 15 (general rule: you are only required to
give the other party 3 days).
The reason is the other party should also be given time to
oppose it with affidavits. That’s why you have to give him a
longer period to oppose and if he decides to oppose, he must
also file his opposition together with affidavits but he must
furnish me with his copy of opposition at least 3 days before the
hearing.
Under the rule on deposition, I can take the deposition of my
own opponent and based on your deposition, I can prove that
your defense is false. So depositions can be used not only
during the trial but to support or oppose a motion for Summary
Judgment.
Rule 23, SEC. 4. Use of depositions – At the
trial or upon the hearing of a motion or an
interlocutory proceeding, any part or all of
a deposition, so far as admissible under the
rules of evidence, may be used against any
party who was present or represented at
the taking of the deposition, or who had
due notice thereof, in accordance with any
one of the following provisions: xxx
So, depositions can be used at the trial or upon the hearing of a
motion.
Q: Give examples of a motion where you can use a deposition to
support your motion.
A: The following:
1) a motion for Summary Judgment. Under Rule 35, the
motion should be supported by affidavits, depositions,
etc… based on what the other party will admit. And
based on Rule 23 Section 4, the deposition of the
adverse party may be used for any purpose. So I can
use it to prove that your cause of action or defense is
false, or another way of supporting a motion for
Summary Judgment under Rule 35, affidavits,
depositions and admissions.
2) Rule 26 – Request for Admission – I can avail of the
Mode of the Request for Admission based on your
admissions.
According to Section 3, all the issues which are not genuine can
be resolved immediately EXCEPT as to amount of damages.
Meaning the amount of damages to be recovered by the plaintiff
cannot be adjudicated through a motion for Summary
Judgment because you still have to present evidence as to how
much really is the damages.
Practically every issue can be resolved summarily except the
exact amount of damages. Some people find this hard to
imagine, “Paano ba yon? I will file a motion for Summary
Judgment and then there will be a judgment except as to the
amount of damages?
Ano ba ‘yan?”
EXAMPLE: An action for damages based on quasi-delict where
I will accuse you of negligence and then you deny that you are
negligent. Now, the issue is: who is negligent and who is not.
Suppose I will file motion for Summary Judgment and the court
will decide in my favor. Therefore I am telling the truth, the
defendant is telling a lie. And then the court will say, “Let the
case be heard to determine exactly how much damages the
plaintiff is supposed to recover.” So there will be a trial but
during the trial, I will just prove how much I am entitled. But
the issue of negligence, tapos na, talo ka na, terminated na
‘yung issue. Damages generally cannot be granted without
evidence. You have to support really the exact amount you are
entitled to receive.
If you will notice, the issue as to the fact that damages,
especially unliquidated damages,which is also subject to proof,
is also mentioned in Rule 8, Section 11:
Rule 8, SEC. 11. Allegations not specifically
denied deemed admitted – Material
averment in the complaint, other than
those as to the amount of unliquidated
damages, shall be deemed admitted when
not specifically denied.
Meaning, how much are you entitled cannot be just given to you
even if your opponent will not deny an allegation. You must still
prove it and that is very clear even in Rule 35 – summary
judgment can be granted except as to the amount of damages.
SEC. 4. Case not fully adjudicated on motion.
- If on motion under this Rule, judgment is
not rendered upon the whole case or for
all the reliefs sought and a trial is
necessary, the court at the hearing of the
 motion, by examining the pleadings and
the evidence before it and by interrogating
counsel shall ascertain what material facts
exist without substantial controversy and
what are actually and in good faith
controverted. It shall thereupon make an
order specifying the facts that appear
without substantial controversy, including
the extent to which the amount of
damages or other relief is not in
controversy, and directing such further
proceeding in the action as are just. The
facts so specified shall be deemed
established, and the trial shall be
conducted on the
controverted facts
accordingly. (4a, R34)
Section 4 authorizes rendition of partial summary judgment but
such is interlocutory in nature and isfinal a final and appealable
judgment. (Guevarra vs. CA GR No. L-49017, August 30, 1983).
Q: Is there such a thing as a motion for partial Summary
Judgment?
A: YES. Well, if you say Motion for Partial Summary Judgment,
some issues are genuine, some are not. So the court can decide
immediately on the issues which are not genuine but with
respect to issues which are genuine, the law says, trial shall be
conducted on the controverted facts summarily under Rule 35
on the issues which are not genuine.
SEC. 5. Form of affidavits and supporting
papers. - Supporting and opposing
affidavits shall be made on personal
knowledge, shall set forth such facts as
would be admissible in evidence, and shall
show affirmatively that the affiant is
competent to testify to the matters stated
therein. Certified true copies of all papers
of parts thereof referred to in the affidavit
shall be attached thereto or served
therewith. (5a, R34)
Q: What are the forms of affidavits under Rule 35?
A: The following:
1) Supporting affidavits – to support the motion for
Summary Judgment;
2) Opposing (counter-) affidavits – to oppose the motion
for Summary Judgment.
Q: Give the requisites of supporting or opposing affidavits to a
motion for Summary Judgment.
A: The following:
1) The affidavit shall be made based on personal
knowledge;
2) It shall set forth such facts as would be admissible in
evidence;
3) The affiant is competent to testify to the matters stated
therein; and
4) Certified true copies of all papers of parts thereof
referred to in the affidavit shall be attached thereto or
served therewith.
“The affidavits of your witnesses, or your affidavit must be
made on personal knowledge and shall set forth such
facts as would be
admissible in evidence and shall show affirmatively that
the
affiant is competent and the matters stated therein.”
What does that mean? Suppose the case will go to trial, so the
witness will take the witness stand. He will testify. When a
witness testifies under the Rules on Evidence, there must be a
showing that what he is talking about is known by him.
Otherwise, it will be hearsay. And based on the law of evidence,
the testimony is inadmissible. What I will say should be
admissible under the law on evidence otherwise my testimony
will not be allowed and I must show that I’m in a position to
know what I’m talking about.
That’s what the witness will have to demonstrate in court.
Since in a motion for Summary Judgment, there is no more
trial, there is no more witnesses who will testify in court, what
will take the place of a witness is his affidavit which must also
show that the witness has personal knowledge, etc. Meaning,
what you should show during the trial, if you are, they must
also be shown in your affidavit.
If your testimony in court is not admissible, because you are
telling only what you heard from other people, then an affidavit
which contains the same thing would also be inadmissible. So,
in other words, the affidavit merely takes the place of oral
testimony in court.
Q: What procedure is similar where the one who will decide,
who will only read the affidavits of both sides and render a
decision?
A: Criminal Procedure: Rule 112 on Preliminary Investigation –
the fiscal conducts a preliminary investigation on the affidavits
lang. The complainant will submit his affidavit. The respondent
will file his counter-affidavit. Then the fiscal will go over the
affidavits and will resolve the issues and determine whether
there is probable cause to file the information or none. So, the
resolution is practically based on affidavits. So walang hearing.
SEC. 6. Affidavits in bad faith. - Should it
appear to its satisfaction at any time that
any of the affidavits presented pursuant
to this Rule are presented in bad faith, or
solely for the purpose of delay, the court
shall forthwith order the offending party
or counsel to pay to the other party the
amount of the reasonable expenses which
the filing of the affidavits caused him to
incur, including attorney's fees. It may,
after hearing, further adjudge the
offending party or counsel guilty of
contempt. (6a, R34)
Well, of course, the affidavits required by law must be filed in
good faith.
EXAMPLE OF AFFIDAVIT IN BAD FAITH: I will file a motion for
Summary Judgment against you alleging that your defense is
false and I will support it with affidavit. Ang defendant,
malakas ang loob, he opposed my motion claiming that his
defense is true and genuine and he also supported it with
affidavits. Once the opposing party does that, the court will
automatically deny my motion. The court is not in the position
now to know who is telling the truth. Both maintaining under
oath that he is telling the truth. So if you oppose my motion
with supporting affidavits, the court will deny my motion for
Summary Judgment and the courts says let’s go to trial and
during the trial, mabisto na naman and it turned out really that
you have no defense, talo ka pa rin.
Sanctions:

Q: What is the penalty for you for filing earlier an opposition to
my motion supported by affidavits in bad faith?
A: The court may:
a) order you or counsel to pay to me (plaintiff) the
amount of reasonable expense which the filing of
affidavits
caused me to incur, including attorney’s fees; and
b) after hearing, adjudge you or your lawyer guilty of
contempt.
Additionally a case of perjury against can be filed against the
affiant for executing a false statement.
That is a criminal sanction under the RPC. I can also file a case
of disbarment against the lawyer for assisting in the filing of an
affidavit in bad faith.
So in other words, if you execute an affidavit in bad faith, you
must be ready to face all these later – damages, contempt,
perjury under the RPC and the lawyer to face disciplinary
proceedings.
SUMMARY JUDGMENT (Rule 35) vs. JUDGMENT ON
THE
PLEADINGS (Rule 34)
Their similarity is that, both of them are methods for promptly
disposing civil actions, wherein a civil case can be adjudicated
without undergoing any trial.
Q: Distinguish Summary Judgment (Rule 35) from Judgment on
the Pleadings (Rule 34).
A: The following are the distinctions:
1) as to the ground
Summary Judgment is proper if there is no genuine
issue
of fact to be tried; whereas
Judgment on the Pleadings is proper where there is
no issue of fact at all to be tried;
Case: VERGARA, SR. vs. SUELTO, ET AL (156 SCRA
753)
2) as to how the judgment rendered
Summary Judgment is rendered on the basis of facts
appearing in the pleadings, affidavits, depositions and
admissions on file, whereas
Judgment on the Pleadings is rendered on the basis
only of the pleadings; (Nagrampa vs. Mulwaney, Etc.,
97 Phil.
724)
3) as to who can ask for the judgment
Summary Judgment is a remedy available for both
claimant and defendant; whereas
Judgment of Pleadings is available only on the
claimant because the answer fails to tender an issue.
4) In Summary Judgment a 10-day notice is required
while in Judgment of Pleadings the 3-day notice rule
applies;
5) A Summary Judgment may be interlocutory or on the
merits while Judgment of Pleadings is one the
merits;
6) A Summary Judgment is available only in actions to
recover a debt or for a liquidated sum of money or for
declaratory relief while the latter is available in any
action except annulment of marriage or legal
separation
cases;
7) If filed by the plaintiff, it must be filed at any time after
an answer is served; if filed by the defendant, it may be
filed even before there is an answer while the judgment
is filed after there is already an answer filed.
VERGARA, SR. vs. SUELTO, ET AL – 156 SCRA 753
ISSUE: When does an answer fail to tender an issue? When is
there no genuine issue?
HELD: “Section 1, Rule 19 (now Rule 34) of the Rules of Court
provides that where an answer fails to tender an issue, or
otherwise admits the material allegation of the adverse party's
pleading, the court may, on motion of that party, direct
judgment on such pleading. The answer would fail to tender an
issue, of course, if it does not comply with the requirements for
a specific denial set out in Section 10 (or Section 8) of Rule 8;
and it would admit the material allegations of the adverse
party's pleadings not only where it expressly confesses the
truthfulness thereof but also
if it omits to deal with them at all.”
“Now, if an answer does in fact specifically deny the material
averments of the complaint in the manner indicated by said
Section 10 of Rule 8, and/or asserts affirmative defenses
(allegations of new matter which, while admitting the material
allegations of the complaint expressly or impliedly, would
nevertheless prevent or bar recovery by the plaintiff) in
accordance with Sections 4 and 5 of Rule 6, a judgment on the
pleadings would naturally not be
proper.”
“But even if the answer does tender issues — and therefore a
judgment on the pleadings is not proper — a summary
judgment may still be rendered on the plaintiff's motion if he
can show to the court's satisfaction that except as to the
amount of damages, there is no genuine issue as to any
material fact, that is to say, the issues thus tendered are not
genuine, are in other words sham, fictitious, contrived, set up in
bad faith, patently unsubstantial. The determination may be
made by the court on the basis of the pleadings, and the
depositions, admissions and affidavits that the movant may
submit, as well as those which the defendant may present in his
turn.”
During the pre-trial conference, it is possible for the court to
render a judgment on the pleadings under Rule 34 or a
summary judgment under Rule 35. Judgment can be rendered
summarily during the pre-trial.
DIMAN vs. ALUMBRES – 299 SCRA 459 [Nov. 27, 1998]
FACTS: The plaintiff files a motion for summary judgment
where he said under oath that the defense is false. The trial
court denied it, “A summary judgment is not proper where the
defendant presented defenses tendering factual issues which
call for the presentation of evidence.” Is the trial court correct.

HELD: “Such a ratiocination is grossly erroneous. Clearly, the

grounds relied on by the judge are proper for the denial of a
motion for judgment on the pleadings – as to which the essential
question, as already remarked, is: are these issues arising from
or generated by the pleadings? – but not as regards a motion for
summary judgment – as to which the crucial question is: issues Rule 36
having been raised by the pleadings, are those issues genuine, or
sham or fictitious, as shown by affidavits, depositions or
admissions accompanying the application therefor?” So those JUDGMENTS, FINAL ORDERS AND ENTRY
are the questions to be answer in a summary judgment, not THEREOF
whether or not there is an answer.
“Errors on principles so clear and fundamental as those herein
involved cannot but be deemed so egregious as to constitute There are three (3) important stages in a civil action.
grave abuse of discretion, being tantamount to whimsical or
capricious Q: What are these three (3) stages?
exercise of judicial prerogative.”
A: The following:
Last point to remember: as a General Rule, you cannot secure
judgment by motion alone. This is because a MOTION is
1) First stage: Issue Formulation Stage
defined as any petition for relief other than the relief prayed for
in the
It is the stage in which we are trying to find out what
pleadings. (Rule 15, Section 1)
are the issues we are quarreling about. This is done
by filing a complaint, answer to know the defenses,
A motion prays for relief other than through a pleading. The counterclaim, answer to counterclaim, third party
other way of stating it is, a motion prays for relief other than complaint. This is the stage of formulation of issues.
through a judgment because a judgment is prayed in a pleading
and not in a motion. So a motion as a rule, cannot pray for
After the last pleading is filed, we go to pre-trial where
immediate judgment.
we will discuss the simplification of issues, advisability
of amending the pleadings, etc. Therefore, during pre-
But there are three (3) known exceptions where a motion can trial we are still formulating issues to be tackled.
already pray for immediate relief. They are: When the pre-trial is terminated and there is no
settlement, we proceed to stage 2:
1) Rule 33 – Demurrer to evidence;
2) Rule 34 – Judgment on the Pleadings; and 2) Second stage: Stage of Proof (Rule 30 on Trial)
3) Rule 35 – Summary Judgment.
We are now on trial where the parties will now offer
In those exceptions, the movant is already asking for a their evidence. It is called the stage of proof. Plaintiff
judgment which normally is not stated in a motion. presents evidence to prove his claim. Defendant
presents evidence to prove his defense. Parties present
rebutting evidence. So this is the stage where the
parties will prove their respective contentions.

After the case has been tried and everything has been
argued under Rule 30, the last stage is….

3) Third stage: Judgment Stage (Rule 36)

This is the stage where the court will now decide and
render judgment.

Q: Define Judgment.

A: Judgment is the final consideration and determination by a

court of the rights of the parties as those rights presently exists,
upon matters submitted to it in an action or proceeding. (Gotamco
vs.
Chan Seng, 46 Phil. 542)

A judgment is the final ruling by the court of competent

jurisdiction regarding the rights or other matters submitted to it
in an action or proceeding (Macahilig vs. Heirs of Gracia M.
Magalit 344 SCRA 838).

Parts of a judgment:
1) The opinion of the court - contains the findings of facts
and conclusions of law;
2) the disposition of the case - the final and actual
disposition of the rights litigated (the dispositive part);
and
3) signature of the judge (Herrera, p. 145)
It is vital to keep in mind that in the process of rendering a
judgment or in resolving controversies, courts can only consider
facts and issues pleaded by the parties. Courts, as well as
magistrates presiding over them are not omniscient. They can
only act on the facts and issues presented before them in
appropriate pleadings. They may not even substitute their own
personal knowledge for evidence. Nor may they take notice of
matters except those expressly provided as subjects of
mandatory judicial notice (Social Justice Society vs. Atienza GR
No. 156052, February 13, 2008).
Q: What are the requisites of a valid judgment?
A: There are the requisites for a valid judgment:
1) the court rendering judgment must have jurisdiction
over the subject matter;
2) the court rendering judgment must have jurisdiction
over the person of the defendant, and in case the
defendant is a non-resident, the court rendering
judgment must have
jurisdiction over the res;
3) the court rendering judgment must have jurisdiction
over the issues, that is, the judgment shall decide only
the
issues raised by the parties in their pleadings;
4) the court rendering judgment must be a validly
constituted court and the judge thereof, a judge de jure
or de facto; Thus, the court has not been abolished; the
judge has been appointed and has not retired nor
separated from service. That is why there is a rule even
in criminal cases that if the judgment is promulgated
after the judge has already retired, the judgment is
void.
There must be another promulgation.
EXAMPLE: Judge tries a case, prepares the decision
and signs it. Before the decision is promulgated, the
judge died or retired. In this case, any promulgation to
be made cannot be valid. The next judge must be the
one to promulgate it – write the decision again and
sign it. What is important is the judge who rendered.
ABC DAVAO AUTO SUPPLY vs. CA – 284 SCRA 218 [January
16,
1998]
FACTS: The case was tried by a judge (Agton) who was
temporarily assigned to Mati. He wrote the decision and had it
released but by that time, he was already back in Mati. The
losing party contended that the judgment was not valid.
HELD: The judgment is VALID because when the new judge
denied the motion for reconsideration, he effectively adopted in
toto the decision of the Mati judge. And besides, the Mati judge
was still a judge when he rendered his decision.
“The subsequent motion for reconsideration of Judge Agton's
decision was acted upon by Judge Marasigan himself and his
denial of the said motion indicates that he subscribed with and
adopted in toto Judge Agton's decision. Any incipient defect was
cured. Branches of the trial court are not distinct and separate
tribunals from each other. Jurisdiction does not attach to the
judge but to
the court.”
1) the judgment must be rendered after lawful hearing,
meaning that due process must be observed. (Busacay
vs. Buenaventura, 50 O.G. 111, Jan. 1954; Rueda vs.
Juan, L13764, Jan. 30, 1960; Rojas vs. Villanueva, 57
O.G. 7339, Oct. 9, n1961; Rayray vs. Chae Kyung Lee, L-
18176, Oct. 26,
1966)
There must be a trial where both sides are given the
chance to be heard. In case of a defaulted defendant,
due process was observed because he was given the
opportunity to defend himself. But he did not file an
answer. The essence of due process is the fact that
you are given the opportunity to be heard.
2) The evidence must have been considered by the tribunal
in deciding the case (Acosta vs. Comelec 293 SCRA 578)
3) The judgment must be in writing, personally and directly
prepared by the judge; a verbal judgment is, in
contemplation of law, not in esse, therefore, ineffective
(Corpus vs. Sandiganbayan 442 SCRA 294).
4) The judgment must state clearly the facts and the law on
which it is based, signed by the judge and filed with the
clerk of court (Sec. 1 R 36; Sec. 14, Art. II, Constitution;
Report on the Judicial Audit Conducted in the MTC of
Tambulig, 472 SCRA 419). This requirement refers to
decisions and final orders on the merits, not to those
resolving incidental matters (Pablo-Gualberto vs.
Gualberto V 461 SCRA 450).
Sec. 1. Rendition of judgments and final
orders. - A judgment or final order
determining the merits of the case shall
be in writing personally and directly
prepared by the judge, stating clearly and
distinctly the facts and the law on which
it is based, signed by him, and filed with
the clerk of the court.
(1a)
Q: What are the FORMAL requisites of a valid judgment?
A: There are four (4) formal requisites:
1) The judgment shall be in writing;
2) It shall be personally and directly prepared by the
judge;
3) It shall state clearly and distinctly the facts and the
law on which it is based; and
4) It shall be signed by the judge and filed with the clerk
of court.
First formal requisite: THE JUDGMENT SHALL BE IN
WRITING
There is no such thing as an oral judgment

BAR QUESTION: After the parties presented their evidence, the
judge asked the lawyers, “Are you going to argue?” The parties
said, “No more, Your honor. We are waiving our right to argue.”
So the judge dictated the decision to the clerk of court. The
judgment was against the defendant. The defendant appealed
next day. Do you count the period of appeal from that date
when he heard the decision?
ANSWER: NO. You still have to wait for the written decision.
Presumably, what is dictated by the judge will be transcribed.
From the time you receive it is the reckoning period for appeal,
notwithstanding the hearing of such decision in open court.
That is not yet the formal decision because under the law, there
is no such thing as oral decision. The judgment must be in
writing.
Officially the decision is known to you on the date you received
the written judgment. Not the date when he dictated it in your
presence. There are judges before who could do that. Even now
those judges in Manila who became justices today do practice
such type of judgment. At present, judges no longer possess
such skill. They are given 90 days to decide the issue and yet at
times, they could not do so within the period mandated by law.
How much more on the spot decision?
Second formal requisite: IT SHALL BE PERSONALLY AND
DIRECTLY
PREPARED BY THE JUDGE
It is presumed that the judgment will be made by the judge
himself. Although sometimes it happens otherwise. The judge
should not delegate the writing to other people. There must be
no ghost writer.
Third formal requisite: IT SHALL STATE CLEARLY AND
DISTINCTLY
THE FACTS AND THE LAW ON WHICH IT IS BASED
The most important – the decision should state clearly and
distinctly, the facts and the law on which it is based. Meaning,
there must be a justification for the dispositive portion. The
judge must argue why the party won or lost.
Normally in the facts, either the facts presented by plaintiff are
right and the facts presented by the defendant are wrong or
viceversa. If you think the facts as presented by the plaintiff are
correct or not, you have to state why do you believe that it is
correct or not, and also with the evidence of the defendant. The
same thing with legal questions because the plaintiff or the
defendant relies on the provisions of the laws or decided cases.
You have to state why the position of the defendant is wrong,
why is the law that he cited not applicable. You have to state
your facts and conclusions of law.
In the SCRA, the Supreme Court will discuss both sides,
“According to the plaintiff like this…According to the defendant
like this…..and so forth.” Then the decision will start by saying,
“While the petitioner is correct…” or, “While the defendant is
correct…”
It is called the discussion of the facts and the law on which the
decision is based. It is a requirement in the Constitution,
Article VIII, Section 14:
Sec. 14. No decision shall be rendered by
any court without expressing therein
clearly and distinctly the facts and the law
on which it is based. xxx (Article. VIII,
1987
Constitution)
If a judge will render a decision like this: “This is a civil action to
collect an unpaid loan. According to the plaintiff: He borrowed
money for the sum of P80,000.00 payable on this date and
despite demands, he did not pay. According to the defendant in
his answer: the obligation is fully paid. ISSUE: Whether the loan
has been paid or not yet paid. Plaintiff, to prove his cause of
action presented the following witnesses and evidence. On the
other hand, the defendant, to prove his defense presented the
following evidence. WHEREFORE, the court renders judgment
dismissing the
complaint.”
Such decision has no discussion on the findings of facts and the
law. There is no basis of the dismissal of the complaint. MY
GOLLY! What kind of decision is that? There is no discussion
on why is the evidence of the plaintiff believable and why is the
position of the defendant like that. So there is no discussion of
the facts and the law on which it is based. That is a decision
which violates the Constitution and Rule 36.
Another Illustration:
In an action for sum of money, plaintiff is unpaid. Defendant
claims the loan has been paid. The following is the evidence of
the plaintiff and the following is the evidence of the defendant.
Then the court now says: “After the meticulous study and
analysis of the evidence offered by both sides, the court is of the
opinion that plaintiff’s evidence is more logical, acceptable,
probable and worthy of credit. THEREFORE, judgment is hereby
rendered ordering the
defendant to pay the loan.”
Q: Is this decision correct?
A: NO. It still violates the law. There are no findings of facts or
conclusions of the law. Therefore, when the court said,
“plaintiff’s evidence is more logical, acceptable, probable and
worthy of credit” those are conclusions. They are not findings of
facts. Meaning you have to argue – why is it logical, why is it
acceptable, why is it probable, why is it worthy of credit. You
must state it and rebut the other side.
If that is how decisions are prepared, you just recite what the
plaintiff said or what the defendant said, and you will conclude,
“Therefore, find the plaintiff is logical…”, then every nincompoop
person is qualified to be a judge – everybody can write a
decision.
It is just like asking questions in the examinations. You will not
answer that “A is correct because his argument is correct
(period!).” You have to state why he is correct. That is also the
case in the decision. You must support your answer with
details.
Now, every decision of every court must state the facts and the
law on which it is based. It must be in every court, no
exceptions, whether SC or an MTC. The Constitutional
provision on this requirement applies to all courts from the
highest to the lowest.
However, the Judiciary Law allows the appellate court to make a
Memorandum Decision. If you are the appellate court (CA), you
either affirm or reverse the decision of the lower court. If the CA
will reverse the findings of the RTC, definitely the CA has to
justify why the findings of the RTC is wrong.
But suppose the CA will affirm, so there is nothing wrong with summarize, to simplify. Their failure to do so is one of the main
the judgment of the RTC. Now, in order to shorten the period for reasons for the delay in the administration of justice. It also
waiting for the decision and in order to hasten it, Section 40 of explains the despair of the public over the foot-dragging of many
BP 129 allows the appellate court to simply quote verbatim the courts and their inability to get to the point and to get there
findings and conclusion of the trial court and adopt it as its fast.”
own.
This is what is called the Memorandum Decision. The concept of Q: How do you distinguish a judgment from a decision?
memorandum decision which is found in Section 40, BP 129 is
now in Rule 51, Section 5 of the 1997 Rules, to wit:
A: Actually, the decision is the entire written effort from the first
sentence, “This is an action for a sum of money” until the end. It
Sec. 5. Form of decision.- Every decision or contains everything from the findings of facts, discussion of
final resolution of the court in appealed evidence.
cases shall clearly and distinctly state the
findings of fact and the conclusions of law
The judgment is usually the last paragraph – ‘yung
on which it is based, which may be
contained in the decision or final “WHEREFORE” – the dispositive portion or the decretal portion.
resolution itself, or adopted from those set Sometimes it is called the fallo of the case.
forth in the decision, order, or resolution
appealed from. (Sec. 40, BP Blg. The fallo is the “WHEREFORE…”part while the discussions,
129) (n) findings of facts, conclusion of law to justify the fallo is called
the ratio
So the appellate court is now authorized to simply copy or refer decidendi – the reasoning. (Contreras vs. Felix, 78 Phil. 570)
the true findings of fact and conclusions at the trial court if it is
affirming the latter’s decision. This is what we call Q: In case of conflict between judgment and decision, which
memorandum decision. The SC said that it is only allowed in shall prevail?
simple cases, not in complicated ones.
A: The judgment shall prevail in case of such conflict, for it is an
Q: Does the law require a particular style of writing a decision? elementary rule of procedure that the resolution of the court in
a given issue, as embodied in the dispositive part of the
A: NO, style is based on every individual, so long as the facts decision, is the controlling factor that determines and settles the
and the law are distinctively stated. That is the minimum rights of the parties and the issues presented therein.
requirement. The law does not care how you do it because the (Manalang vs. Rickards,
manner of presenting the facts and the law and the discussion 55 O.G. 5780, July 27, 1959)
is a matter of style. Every person has his own style, and
whether it is good or bad does not matter as long as you ASIAN CENTER vs. NLRC - 297 SCRA 727 [Oct 12, 1998]
comply with the law.
FACTS: A vs. B. In the ratio decidendi, A is correct. Pero
As a matter of fact, there are many instances where the SC pagdating sa WHEREFOR (judgment), A’s action is dismissed!
commented on the writing styles of judges. The most vehement And there was no statement in favor of B. A appeals. B
critics on sloppy style of decision writing is retired Justice contended that the judgment prevails. Is B correct?
Isagani Cruz, because he is a very effective writer. He is
intolerant of poorly written decisions. Kaya from time to time HELD: “The general rule is that where there is a conflict
although not necessary, he will criticize poorly written between the dispositive portion or the fallo and the body of the
decisions. He makes sub-comments. decision, the fallo controls. This rule rests on the theory that the
Like in the cases of fallo is the final order while the opinion in the body is merely a
statement ordering nothing. However, where the inevitable
NICOS INDUSTRIAL CORP. vs. CA - 206 SCRA 127 [1992] conclusion from the body of the decision is so clear as to show
that there was a mistake in the dispositive portion, the body of
HELD: “Kilometric decisions without much substance must be the decision will prevail.”
avoided, to be sure, but the other extreme, where substance is
also lost in the wish to be brief, is no less unacceptable either.” TYPES OF JUDGMENTS:
Too long is bad, too short is bad either. “The ideal decision is
that which, with welcome economy of words, arrives at the a) Sin Perjuicio judgment
factual findings, reaches the legal conclusions, renders its
b) Conditional judgment
ruling and, having done so, ends.” This means, brief but
c) Incomplete judgement
comprehensive.
d) Nunc pro tunc judgment
e) Judgment upon a compromise or Judgment upon an
PEOPLE vs. GONZALES – 215 SCRA 592 amicable settlement
f) Judgment upon a confession
HELD: “Every judge has his own writing style, some tedious, g) Judgment upon the merits
some terse, some pedestrian, some elegant, depending upon his
h) Clarificatory judgment
training and outlook. Each is acceptable as long as the factual
i) Judgment by default (Sec. 3 R 9)
and legal
j) Judgment on the Pleadings (R 34)
bases are clearly and distinctly stated therein.”
k) Summary Judgment (R 35)
l) Several judgment (Sec. 4 R 36)
PEOPLE vs. AMONDINA – 220 SCRA 6
m) Separate judgment (Sec. 5 R 36)
n) Special Judgment (Sec. 11 R. 39)
HELD: “The decision of the trial court is exceedingly long,
o) Judgment for specificactor (Sec. 10 R 39)
without any effort to trim the fat and keep it lean. Judges are
p) Judgment on Demurrer to Evidence (R 33)
not stenographers transcribing the testimony of the witnesses
q) Final Judgment
word for word. Judges must know how to synthesize, to
r) Amended Judgment and Supplemental Judgment
SIN PERJUICIO JUDGMENT
Q: What is an SIN PERJUICIO judgment?
A: A sin perjuicio is one which contains only the dispositive
portion of the decision and reserves the making of findings of fact
and conclusions of law in a subsequent judgment. (Dir. of Lands
vs. Sanz, 45 Phil. 117) So, there is a “WHEREFORE” without a
ratio decidendi. It does not state how the court arrived at a
certain decision.
Q: Is a SIN PERJUICIO judgment valid?
A: A sin perjuicio judgment is a VOID judgment for it violates the
constitutional provision that “no decision shall be rendered by
any court of record without expressing therein clearly and
distinctly the facts and the law on which it is based” (Sec. 14,
Art. VIIII), and the provision of the Rules of Court that the
judgment shall state “clearly and distinctly the facts and the law
on which it is based.
(Rule 36, Section 1)
CONDITIONAL JUDGMENT
Q: What is a CONDITIONAL judgment?
A: A conditional judgment is one which is subject to the
performance of a condition precedent and is not final until the
condition is performed. (Jaucian vs. Querol, 38 Phil. 707)
Is one wherein the effectivity of which depends upon the
occurrence or non-occurrence of an event.
EXAMPLE: A sued B. Then the court said: “The A is correct
because so and so…. However, there is another case now
pending before the SC where the same issue is being raised.
In the meantime, A is correct. But in the event that SC
decision comes out and is not favorable to A, then this
decision should also be automatically changed in favor of B.”
So, this is a conditional judgment. Is it a valid judgment?
Q: Is a conditional judgment valid?
A: It is NOT valid. In truth, such judgment contains no
disposition at all and is a mere anticipated statement of what
the court shall do in the future when a particular event should
happen. For this reason, as a general rule, judgments of such
kind, conditioned upon a contingency, are held to be NULL and
VOID. (Cu Unjieng y Hijos vs.
Mabalacat Sugar Co., 70 Phil. 380)
INCOMPLETE JUDGMENT
Q: What is an INCOMPLETE judgment? What is its effect?
A: An incomplete judgment is one which leaves certain matters
to be settled in a subsequent proceeding. (Ignacio vs. Hilario, 76
Phil. 605) There is a decision but there are still other matters to
be incorporated later in such decision. Parang interlocutory
judgment.
EXAMPLE: There is judgment against B for a damage suit,
“Wherefore, judgment is hereby rendered ordering defendant
to indemnify the plaintiff, moral and exemplary damages
(period!).” It does not state how much. Mamaya na natin
malaman kung magkano. So kulang pa ang decision.
My golly! What is there to execute? You do not even know how
much is the award. It does not settle any question that may be
the subject of execution. (Araneta, Inc. vs. Tuason, 49 O.G. 45)
The judgment can never become final, it having left certain
matters to be settled for its completion in a subsequent
proceeding. (Ignacio vs. Hilario, 76 Phil. 605) So, the judgment
is again defective.
NUNC PRO TUNC JUDGMENT
Q: (Bar Question) What is a judgment NUNC PRO TUNC and
what is its function?
A: A judgment nunc pro tunc literally means a ’judgment now
for then.’ Its function is to record some act of the court done at a
former time which was then carried into the record. And the
power to make such entries is restricted to placing upon the
record evidence of judicial action which has actually been
taken. It may be used to make the record speak the truth, but
not to make it speak what it did not speak but ought to have
spoken. (Lichauco vs. Tan
Pho, 51 Phil. 862)
Example: When a judge renders a decision, he must base his
findings on what happened on the trial or on the evidence
presented. Normally, the judge cites facts as bases for his
findings. Suppose, the judge, in his hurry, made some findings
but forgot to incorporate all those other important matters
which can support his findings. Na-overlook ba! He rendered his
decision which was lacking in something – inadvertently
omitted. The judge may now amend his judgment by including
the matters missed – such matters that have been admitted on
record. Then, the judge now has an improved decision – the
judgment now is NUNC PRO TUNC. What are to be added are
things which really happened. The judge has no power to
include something which did not actually happen. That would
be irregular. How could you quote something which never
transpired during the trial.
So it is an amended judgment where certain matters which are
contained in the records and transpired in court were not
incorporated. So when you made the decision, parang kulang.
So in order to make it clearer, we will incorporate those matters
which should have been incorporated in the amended decision.
That is known as judgment nunc pro tunc. But you can only
place there matters which transpired, not matters which did not
transpire.
Q: In what cases is a judgment nunc pro tunc NOT proper?
A: A judgment nunc pro tunc is not proper in the following
instances:
1) It cannot remedy errors or omission in an imperfect or
improper judgment. (Lichauco vs. Tan Pho, 51 Phil.
862)
2) It cannot change the judgment in any material respect.
(Henderson vs. Tan, 87 Phil. 466) and
3) It cannot correct judicial errors, however flagrant and
glaring they may be. (Henderson vs. Tan, 87 Phil. 466)
JUDGMENT UPON A COMPROMISE or
JUDGMENT UPON AN AMICABLE SETTLEMENT
Q: What is a JUDGMENT UPON A COMPROMISE?
A: A judgment upon a compromise is a judgment rendered with
the consent of the parties for the purpose of effecting a
compromise or settlement of an action. (31 Am. Jur. 105-108)
It is one rendered by the court on the basis of a compromise
agreement entered into between the parties.
This is the type of judgment which the law encourages because
it is a judgment with the consent of the parties for the purpose
of effecting a compromise or settlement. Usually mga collection
cases ito – tawaran – like i-condone ang interests, or half of the
amount na lang, etc. The court will render judgment copying
word for word what the parties say. So the compromise
agreement becomes the judgment and for a as long as the
agreement is not contrary to law, the court will approve it.
Q: In a compromise judgment, is the court required to make
findings of fact and conclusions of law? Why?
A: In a compromise judgment, the court is not required to make
findings of fact and conclusions of law. In contemplation of law,
the court is deemed to have adopted the statement of facts and
conclusions of law made and resolved by the parties themselves
in their compromise agreement; and their consent has made it
both unnecessary and improper for the court to make a
preliminary adjudication of the matters thereunder covered.
(Palarca vs.
Anzon, L-14780, Nov. 29, 1960)
It is covered by Articles 2028 to 2046 of the New Civil Code
Q: How do you define a compromise?
A: Under Article 2028 of the New Civil Code:
Art. 2028. A compromise is a contract
whereby the parties, by making reciprocal
concessions, avoid a litigation or put an
end to one already commenced. (Civil
Code)
So the essence of compromise is reciprocal concessions – give
and take. It is a mutual concession to avoid litigation or, if there
is already, that which will put an end. There are other
definitions given by the SC although the essence or substance is
the same. In
the case of
SMITH BELL AND CO. vs. CA – 197 SCRA 201
HELD: “A compromise is an agreement between two (2) or more
persons who, in order to forestall or put an end to a law suit,
adjust their differences by mutual consent, an adjustment
which every one of them prefers to the hope of gaining more,
balanced by the danger of losing more.”
If we go to trial, well, winner take all – either the plaintiff wins or
the defendant wins. If you are not sure of your position, then
you might as well get something out of it rather than risk losing
everything.
EXAMPLE: You sue me for P1 million. Then I say, “I would like
to offer a settlement”. You would say, “How much do you offer?
Well, my complaint is 1 million, so you pay me P1 million.” That
is not compromise, that is surrender. Kaya nga umaareglo ako
para makatawad. And if you will not receive anything less than
a million, you are not asking for a compromise, you are
demanding total surrender. If that is so then, let us go to court
and find out if you will get your P1 million and let us find out
how many years from now you can get your money.
Kaya in a compromise agreement, there are no winners and
there are no losers.
REPUBLIC vs. SANDIGAN – 226 SCRA 314
FACTS: This is a case involving a compromise between the
government and Benedicto, a crony of President Marcos. He
entered into a compromise with the PCGG and the Supreme
Court approved it.
HELD: “Any compromise has its very essence reciprocal
concessions, one must give and one must take. If only one
takes all, then one must first win. But in a compromise, all win
by taking
some and giving some.”
Let’s go back to the law on Obligations and Contracts. There
are four (4) types of defective contracts:
a) void;
b) voidable;
c) rescissible; and
d) unenforceable.
Under the Civil Code, if one party enters into a contract where
he lacks the requisite authority, the contract is unenforceable
but it is a valid agreement.
Q: What is the effect of a compromise agreement entered into by
a lawyer, without any special authority from his client? Is it a
null and void agreement?
A: A lawyer cannot, without special authority, compromise his
client’s litigation. A judgment upon a compromise entered by
the court, not subscribed by the party sought to be bound by
the compromise agreement, and in the absence of a special
authority to the lawyer to bind his client in the said agreement,
is
UNENFORCEABLE. (Dungo vs. Lopena, L-18377, Dec. 29, 1962)
Q: Suppose in the above case, the client learned about what his
lawyer did and he did not reject the agreement, as a matter of
fact he complied with it, what is now the effect on such
agreement?
A: The agreement is now perfectly VALID and ENFORCEABLE
because the party himself did not question his lawyer’s
authority. When it appears that the client, on becoming aware
of the compromise and the judgment, failed to repudiate
promptly the action of his lawyer, he will not afterwards be
heard to contest it.
(Banco Español-Filipino vs. Palanca, 37 Phil. 921)
Effects of judgment based on a compromise
Q: What are the legal effects of a judgment based upon a
compromise agreement?
A: A judgment upon a compromise agreement produces the
following legal effects:
1) The compromise judgment is not appealable and it is
immediately executory. (Reyes vs. Ugarte, 75 Phil. 505;
Serrano vs. Miave, L-14687, March 31, 1965)
2) It cannot be annulled unless it is vitiated with error,
deceit, violence or forgery of documents. (Morales vs.
Fontanos, 64 Phil. 19; Article 2038, Civil Code)
 3) It constitutes res adjudicata. (Art. 2037, Civil Code;
Sabino vs. Cuba, L-18328, Dec. 17, 1966) Meaning,
the same subject matter or cause of action can no
longer be reopened in the future in another litigation.
Q: Suppose you enter into a compromise agreement and there is
a judgment. You want to escape from the compromise judgment
on the ground that your consent was vitiated by mistake, error,
deceit, violence. How do you question it? What is your remedy?
A: There are so many conflicting answers here. Some say you
file a motion to set aside the compromise judgment because
your consent was vitiated. And if the motion is denied, you
appeal from the order denying your motion to set aside. But
definitely, you cannot appeal from the compromise judgment
because it is not appealable. You appeal from the order denying
your motion to set aside the compromise judgment.
However, under the new rules, you cannot anymore appeal an
order denying a motion to set aside a judgment by consent,
confession or compromise on the ground of fraud, mistake, or
duress or any other ground vitiating consent (Section 1, Rule
41)
So an order denying a motion to set aside a judgment by
compromise on the ground of fraud, mistake, or duress or any
other ground vitiating consent is not appealable. Therefore,
whatever the answers before are not anymore true now. So what
is the REMEDY now?
It would seem that the correct remedy based on the new rules in
relation to some new cases, among which was the case of:
DOMINGO vs. CA– 255 SCRA 189 [1996]
HELD: The correct remedy is for the party to file an action for
annulment of judgment before the Court of Appeals pursuant to
Section 9, par. 2, of the Judiciary Law. (now incorporated in
Rule
47)
“A compromise may however be disturbed and set aside for vices
of consent or forgery. Hence, where an aggrieved party alleges
mistake, fraud, violence, intimidation, undue influence, or
falsity in the execution of the compromise embodied in a
judgment, an action to annul it should be brought before the
Court of Appeals, in accordance with Section 9(2) of Batas
Pambansa Bilang 129, which gives that court (CA) exclusive
original jurisdiction over actions for annulment of judgments of
regional trial courts.”
The parties may submit compromise agreement at any stage of
the case, even if judgment has already become final and
executory, and even without approval of the court.
Advantage of Approval of the court
The court could render a judgment based upon a compromise
and in case of breach of any of the conditions, the party may
ask the court for execution of judgment under R 39.
JUDGMENT UPON A CONFESSION (COGNOVIT
JUDGMENT)
Q: What is a judgment upon a confession?
A: A judgment upon a confession is a one entered against a
person upon his admission or confession of liability without the
formality, time and expense involved in an ordinary proceeding.
(Natividad
vs. Natividad, 51 Phil. 613)
It is one rendered by the court when a party expressly agrees to
the other party's claim or acknowledges the validity of the claim
against him.
Two kinds of judgment by Confession:
1) Judgment by Cognovit Actionem
A judgment upon a confession is also known as “cognovit”
judgment.
The defendant after service instead of entering a plea
acknowledges and confesses that the plaintiff's cause of
action is just and rightful.
EXAMPLE: You file a case against me. Without filing an
answer, I simply appeared in court and tell the court that
I am not contesting the claim. I am admitting the
complaint to be true and I am willing to have judgment
rendered against me. Or, I can also file my answer
kunwari lang ba, and then in court I will admit my
liability. That would be the basis of the judgment upon a
confession.
As distinguished from judgment on the pleadings (Rule 34), in
judgment on the pleadings you have to go through the process
of filing an answer but actually your answer puts up no defense.
In judgment upon a confession, I may not even file an answer.
Hindi talaga ako maglaban. Upon receiving the complaint, I
just say that I am admitting liability. So there is no need of a
default order. In American Law, they call it nullo contendere,
meaning no contest. Sa criminal case pa, I am pleading “guilty.”
Judgment upon a confession, Judgment upon the pleadings,
Default judgment – Magkahawig sila. Only they vary a little bit.
In default judgment, the defendant failed to file an answer. So,
he is declared in default. In judgment upon the pleadings,
defendant filed an answer but the answer contains no defense.
In judgment upon a confession, he will not file an answer but
will tell the court that he is admitting liability. So, lahat will
end up on the same thing: There will be a judgment rendered
against the defendant.
2) Judgment by confession relicta verification
After pleading and before trial, the defendant both
confessed the plaintiff's cause of action and withdrew or
abandoned his plea or other allegations, whereupon
judgment is entered against him without proceeding to
trial.
Now, during the commonwealth era, there were many
American lawyers who practiced law in the Philippines.
Many judges were Americans, even Justices of the
Supreme Court – many of them were Americans.
American lawyers brought to the Philippines types of
agreements in American contracts. There was one
particular agreement known as “Warrant of Attorney to
Confess Judgment.” That is a standard clause in
American contracts.
EXAMPLE: I am a bank. You borrow money from me and
you sign a promissory note which contains stipulations
normally to the advantage and in favor of the bank. They
usually insert the American clause “Warrant of Attorney to
Confess Judgment” that in the event that the bank will
 sue you on this promissory note, you are entering into a
confession judgment immediately. Meaning, I am not
going to defend myself and I am immediately confessing
judgment to the court. And who will confess judgment to
the court? The debtor will say “I hereby appoint the bank
as my representative to confess judgment to the court in
my behalf.” Parang Special Power of Attorney ba. The
bank will go to the court and say, “Under this paragraph, I
represent the defendant-debtor because he appointed me
as his attorney-in-fact. And in behalf of the defendant, I
am
confessing.”
The Supreme Court ruled that such stipulation is null and void
in the old case of:
NATIONAL BANK vs. MANILA OIL – 43 Phil 444
HELD: Such type of clause is null and void for being contrary to
public policy because the defendant waives his right in advance
to defend himself. That is unfair because even before you are
sued, you have already waived your right to defend yourself.
But the judgment of confession is still allowed but one has to do
it himself, and must not be done in advance. Meaning, it must
not be done like the above acts of American lawyers as such is
against public policy. One must be first be given a chance for
defense which right be later on waived through voluntary
confession.
Q: Distinguish a judgment upon a COMPROMISE from a
judgment upon a CONFESSION.
A: The following are the distinctions:
1) In a judgment upon a COMPROMISE, the liability of the
defendant is to be determined in accordance with the
terms of the agreement of the parties; whereas
In a judgment upon a CONFESSION, the defendant
confesses the action and consents to the judgment
that the court may render in accordance with the
compromise and the prayer therein (31 Am. Jur. 108);
and
2) In a judgment upon a COMPROMISE, there is give and
take; the parties haggle, bargain and agree on the
terms of the judgment; there is mutual or reciprocal
concessions; whereas
A judgment upon a CONFESSION is unilateral. It
comes from the defendant who admits his liability and
accepts that judgment be rendered against him.
3) In a judgment upon a compromise, the provisions and
terms are settled and agreed upon by the parties to the
action, and which are entered in the record by the
consent of the court while a judgment by confession is
an affirmative and voluntary act of the defendant
himself. The court exercises a certain amount of
supervision over the entry of judgment.
Remedy against judgment by consent, confession or
compromise
File a motion to set it aside then if denied file a petition
under
65 which is appropriate (Sec. 1 R 41)
JUDGMENT UPON THE MERITS
It is one that is rendered after consideration of the evidence
submitted by the parties during the trial of the case.
CLARIFICATORY JUDGMENT
It is rendered to clarify an ambiguous judgment or one difficult
to comply with.
Where the judgment is difficult to execute because of ambiguity
in its terms, the remedy is to file a motion for clarificatory
judgment
and not to assail the judgment as void. (Riano p. 405)
Promulgation of judgment
This refers to the process by which a decision is published,
officially announced, made known to the public or delivered to
the clerk of court for filing, coupled with notice to the parties or
their counsel.
Memorandum decision is a decision of the appellate court which
adopts the findings and conclusins of the trial court.
Promulgation of judgment:
1) The court renders a decision
2) After receipt of notice, the losing party has the following
options:
a) Accept the decision without further contest in
which case the judgment becomes final fater
period to appeal has lapsed; or
b) Contest the judgment in which case he can:
1. File an appeal within 15/30 days from notice
of judgment; or
2. file a motion for reconsideration or a motion
for new trial within the period to appeal
reckoned from notice of judgment.
If he filed a motion for recon or motion for new trial, two
possibilities can happen:
1) If granted, the court can modify the decision or allow
new trial;
2) If denied, the losing party may appeal within a fresh
period of 15 days from notice of denial (Neypes vs. CA)
The power to amend a judgment is inherent to the court before
judgment becomes final and executory.
General rule: After judgment has become final and
executory the court cannot amend the same.
Exceptions:
1) to make correctios of clerical error, not substantial
amendments, as by an amendment nunc pro tunc;
2) to clarify an ambiguity which is borne out by and
justifiable in the context of the decision; or
3) in judgments for support, which can always be
amended from time to time.
Rule: The validity of a judgmentrot order of a court cannot be
collaterally attacked.
Except:
1) for lack of jurisdiction; or
2) irregularity of its entry apparent from the face of the
record.
Sec. 2. Entry of judgments and final orders. -
If no appeal or motion for new trial or
reconsideration is filed within the time
provided in these Rules, the judgment or
final order shall forthwith be entered by
the clerk in the book of entries of
judgments. The date of finality of the
judgment or final order shall be deemed to
be the date of its entry. The record shall
contain the dispositive part of the
judgment or final order and shall be signed
by the clerk, with a certificate that such
judgment or final order has become final
and executory. (2a, 10, R51)
If you lose a case, what are your options? I can either appeal
within the time provided by the Rules. Or, within the same
period, I will file a motion for a new trial or a motion for
reconsideration. In any case, the finality of the judgment will be
stopped.
Q: Suppose the prescribed period has lapsed, there is no appeal,
no motion for new trial or reconsideration, what happens to the
judgment?
A: The judgment now becomes final and executory.
According to Section 2, once the judgment has become final, it
shall be entered by the clerk of court in the Book of Entries of
Judgments. If you go to the office of the RTC, you will find an
official book which contains a chronological arrangement of
cases, based on the date of filing. Malaking libro yan.
Now, the second sentence is new and its effects are also
significant, “…the date of the finality of judgment or final order
shall be deemed to be the date of its entry.” The rule is, when
does a judgment become final? After the lapse of the period to
appeal and no appeal is filed.
EXAMPLE: Today, March 4, the lawyer for the defendant
received a copy of the judgment. The last day to appeal is
March 19. Suppose there is no appeal, then March 20 is the
date of finality. On March 20 or immediately thereafter, the
clerk of court should know the judgment became final on March
20. Suppose the clerk of court placed it in the book on March
30. So, the date of finality is March 20 but the date of entry is
March 30.
Sometimes the clerk of court forgets to make the date of entry.
That is why under the old rules, the date of finality of judgment
does not coincide with the date of entry of judgment because the
clerk of court may do that thing months later. This creates a lot
of trouble. So to cure the discrepancy, the second sentence is
now inserted by the new law: “the date of finality of judgment
shall be deemed to be the date of its entry.”
Meaning, the judgment became final on March 20 although the
clerk of court noted it on March 30. Under the new rules, the
date of entry (March 30) retroacts to March 20. That is the
significance of the second sentence, they will automatically
coincide. Kahit ienter pa yan next month, everything will
retroact to the date of finality. It is simplier now.
Note: Entry of judgment or final order assumes importance in
reckoning somereglementary periods such as the 5-year period
for execution by a motion (Sec. 6 R 39) or the 6-moth period for
a petition for relief (Sec. 3 R 38). Regalado, Remedial Law,
Compendium p. 413)
Sec. 3. Judgment for or against one or more of
several parties. - Judgment may be given for
or against one or more of several plaintiffs,
and for or against one or more of several
defendants. When justice so demands, the
court may require the parties on each side
to file adversary pleadings
as between themselves and determine
their ultimate rights and obligations. (3)
Q: Suppose there are 2 plaintiffs A and B, can the court render
judgment in favor of plaintiff A and against plaintiff B? Or, is it
possible that in one case, one defendant will win and the other
defendant will lose?
A: YES, especially when the causes of action or defenses are not
the same. One may invoke a defense that is only applicable to
him but not applicable to others.
Sec. 4. Several judgments. - In an action
against several defendants, the court may,
when a several judgment is proper, render
judgment against one or more of them,
leaving the action to proceed against the
others. (4)
Several judgment is one rendered by a court against one or
more defendants and not against all of them leaving the action
to proceed against the others.
Several judgment is proper where the liability of each party is
clearly separable and distinct from his co-parties such that the
claims against each of them could have been the subject of
separate suits, and the judgment for or against one of them will
not necessarily affect the other. A several judgment is not
proper in an action against solidary debtors. (Fernandez v. Sta.
Maria GR No.
160730 Dec. 10, 2004)
Same concept. When there are 2 or more defendants, normally
the court renders judgment sabay-sabay. That is possible.
Q. Is it possible that more than one judgment will arise in a civil
action?
A. YES. There’s a judgment in favor of the plaintiff against the
defendant and the trial still continues with respect to other
defendants. That would involve more than one decision.
Judgment in favor of one defendant is rendered already but the
trial will continue with respect to other defendants is possible
under Section 4.
EXAMPLE: There was a case where the government filed a case
for expropriation against several landowners. The lands are
adjoining each other and the government would like to
expropriate all these properties. The government had to file on
complaint against several landowners. One landowner asked
that his case be tried ahead of the others. He was allowed
under Rule 31 on Separate Trial. His case was tried ahead.
After trial, the court rendered judgment against him. His land
was ordered expropriated. Now, what happened to the other
defendants? The Supreme Court said let the case continue
against the other landowners. But there would be a judgment
in so far as one defendant is concerned.
(Municipality of Biñan vs. Garcia, 108 SCRA 576) determination of the issues material to a particular claim and
all counterclaims arising out of transaction or occurrence which
Sec. 5. Separate judgments. - When more is the subject matter of said claim.
than one claim for relief is presented in an
action, the court, at any stage, upon a It is proper where more than one claim for relief is presented in
determination of the issues material to a an action and a determination as to the issues material to the
particular claim and all counterclaims claim has been made. The action shall proceed as to the
arising out of the transaction or remaining claims.
occurrence which is the subject matter of
the claim, may render a separate judgment
Amended or Clarified judgment and supplemental decision
disposing of such claim. The judgment
shall terminate the action with respect to
the claim so disposed of and the action 1.) The first is an entirely new decision and
shall proceed as to the remaining claims. supersedes the original judgment while the latter
In case a separate judgment is rendered, stands side by side with the original;
the court by order may stay its
enforcement until the rendition of a 2.) In the first, the court makes a thorough study of
subsequent judgment or judgments and
the
may prescribe such conditions as may be
original judgment and renders the amended and
necessary to secure the benefit thereof to
the party in whose favor the judgment is clarified judgment only after considering all the factual
and legal issues while the latter serves to bolster or
rendered. (5a)
add to the original judgment.
Separate judgment is one rendered by a court disposing of a
claim among several others, presented in a case after
Q: Can there be judgments at periods or stages of proceedings?
A: YES. There can be judgment insofar as one cause of action and the
proceedings will continue as to other causes of action.
Let us go back to Rule 30 on Order of Trial. You will notice that there is
order of trial when there are several claims in one action.

EXAMPLE: Plaintiff files a complaint against several defendants. One defendant files a
cross-claim against another defendant. Two defendants file permissive counterclaims
against the plaintiff. One defendant will file a third-party complaint against a third-
party defendant. The court renders judgment. It may render judgment as far as
complaint is concerned, then the decision for the cross- claim, then for the
counterclaim.

The normal procedure is you try the case, tapusin mo lahat, then you render one
judgment disposing of the complaint, counterclaim, cross-claim and third-party
complaint. Yet, separate judgments is also permissive under Section 5. If there are
separate trials for all these (counterclaim, cross-claim, etc), it is also possible that
there would be separate trials.

Distinctions:

Section 3 – refers to an action by several parties

Section 4 – refers to an action against several defendants
Section 5 – refers to several claims for relief in an action

Sec. 6. Judgment against entity without juridical personality. - When

judgment is rendered against two or more persons sued as an entity
without juridical personality, the judgment shall set out their individual
or proper names, if known. (6a)

Does that sound familiar? Two or more persons sued as an entity without juridical
personality. Let’s go back to Rule 3 Section 15 and
Rule 14 Section 8.

PROBLEM: Three people are members of an entity without juridical personality. They
transact business with Mr. Alama. Mr. Alama has no idea who are really the members
of the said entity. He wanted to sue the members of an entity.
Q1: How will he do it?
A: Rule 3, Section 15 – Mr. Alama will file a case against the defendants by
using the name of the entity they are using.

Q2: How should summons served to these defendants?

A: Rule 14, Section 8 – Summons may be served on anyone of them or
to the person in charge of the place of business.

Q3: How should judgment be rendered against them?

 A: Rule 36, Section 6 – when judgment is rendered, the judgment shall set
out their individual and proper names.
Rule 37
NEW TRIAL OR RECONSIDERATION
The counterpart of Rule 37 in criminal procedure is Rule 121.
In criminal procedure, there is also the remedy of new trial and
reconsideration.
Section 1. Grounds of and period for filing
motion for new trial or reconsideration. Within
the period for taking an appeal, the
aggrieved party may move the trial court
to set aside the judgment or final order
and grant a new trial for one or more of
the following causes materially affecting
the substantial rights of said party:
(a) Fraud, accident, mistake or excusable
negligence which ordinary prudence could
not have guarded against and by reason of
which such aggrieved party has probably
been impaired in his rights; or
(b) Newly discovered evidence, which he
could not, with reasonable diligence, have
discovered and produced at the trial, and
which if presented would probably alter
the result.
Within the same period, the aggrieved
party may also move for reconsideration
upon the grounds that the damages
awarded are excessive, that the evidence
is insufficient to justify the decision or
final order, or that the decision or final
order is contrary to law.(1a)
Q: When may an aggrieved party file a motion for new trial or a
motion for reconsideration?
A: Within the period for taking an appeal. Meaning, before the
judgment becomes final and executory.
The remedies against a judgment may refer to those remedies
before a judgment becomes final and executor and those
remedies after the same becomes executor.
1) Before a judgment becomes final and executor, the
aggrieved or losing party may avail of the following
remedies:
a.) Motion for Reconsideration;
b.) Motion for New Trial; and
c.) Appeal.
A judgment becomes final and executory upon the
expiration of the period to appeal therefrom and no
appeal has been perfected (Sec. 1 Rule 39).
2) After the judgment becomes executory, the losing party
may avail of the following:
a.) Petition for Relief from Judgment;
b.) Action to Annul a Judgment;
c.) Certiorari; and
d.) Collateral Attack of Judgment.
We have not yet discussed the law on appeal but the general
rule is just like in criminal cases. If you lose, you have 15 days
to file an appeal. If there is no appeal within 15 days, the
judgment will become final and executory.
Q: What is the effect when judgment becomes final and
executory?
A: Under Rule 36, the court loses jurisdiction over the case.
The decision cannot be changed anymore. But as long as
judgment is not yet final, the court can change the decision.
Q: What is the effect of filing a motion for new trial or
reconsideration on the period to appeal?
A: The period to appeal is suspended. Period to appeal is
suspended except if your motion for new trial or reconsideration
is pro-forma under Sections 2 and 5.
NEW TRIAL
The motion is filed within the period to appeal (Sec. 1). No
motion for extension of time to file a motion for new trial shall
be allowed (Sec. 2, R 40; Sec. 3, R 41).
The period to appeal is within 15 days after notice to the
appellant of the judgment or final order appealed from (Sec. 2 R
40; Sec. 3, R 41; Sec. 2 R 45). Where a record on appeal is
required, the appellant shall file a notice of appeal and a record
on appeal within 30 days from notice of the judgment or final
order (Sec. 3 R 41). A record on appeal shall be required only (a)
in special proceedings, and (b) other cases of multiple or
separate appeals (Sec. 3 R 40).
A motion for new trial is prohibited in cases covered by the Rule
on
Summary Procedure (Sec. 19[c], Revised Rule on Summary
Procedure). It is also prohibited under the Rule of Procedure for
Small Claims Cases (Sec. 14©, A.M. No. 08-8-7-SC).
Q: What are the grounds for a motion for new trial in civil
cases?
A: Under Section 1, there are two (2) GROUNDS:
1) Fraud, Accident, Mistake, Excusable negligence
(FAME);
2) Newly Discovered Evidence (NDE)
FIRST GROUND: Fraud, Accident, Mistake,
Excusable negligence (FAME)
Let us relate this to Rule 9, Section 3 [b] on Default. The
ground to lift or set aside the order of default is also FAME –
that he failed to answer because of FAME. So, there is a
connection between Rule 9 and the first ground of a motion for
new trial. But this is not applicable only to a defaulted
defendant.
Q: How do you determine when to use Rule 9 or Rule 37 when
one is declared in default?
A: Use Rule 9, Section 3 [b] after notice of the order of default
but
before judgment;
Use Rule 37 if there is already a judgment but not yet final and
executory. Rule 37 is the remedy in case the defendant who is
declared in default failed to avail of Rule 9, Section 3 [b].
But Rule 37 on motion for new trial on the ground of FAME is
broader. It applies to plaintiff or defendant whether in default
or not because a defendant can still lose the case through FAME
although he is not in default. Or, for example: The plaintiff,
because of his failure to appear in the case, the court dismissed
the case. But the reason why the plaintiff failed to appear is
because of FAME. So the remedy for plaintiff is to move to set
aside the dismissal and have the case continued by filing a
motion for new trial on the ground of FAME.
But definitely, Rule 37 also applies to a defendant declared in
default and that is the connection between Rule 37 and Rule 9.
FRAUD (Extrinsic)
What is FRAUD? In tagalog, naisahan ka or naloko ka. (Ilonggo:
nautis) Under the law, there are two (2) TYPES of Fraud:
EXTRINSIC
FRAUD and INTRINSIC FRAUD
Fraud is regarded as extrinsic or collateral in character where it
prevents a party from having a trial or from presenting his
entire case to the court, or where it operates upon matters
pertaining not to the judgment itself but to the manner in which
it is procured. The overriding consideration when extrinsic fraud
is alleged is that the fraudulent scheme of the prevailing litigant
prevented a party from having his day in court (Alaban vs. CA).
This kind of fraud prevents the aggrieved party from having a
trial or presenting his case to the court, or is used to procure
the judgment without fair submission of the controversy, as
when there is a false promise of a compromise or when one is
kept ignorant of the suit. (Villanueva vs. Nite).
Stated in another way, extrinsic fraud exists when there is a
fraudulent act committed by the prevailing party outside of the
trial of the case, whereby the defeated party was prevented from
presenting fully his side of the case by deception practiced on
him by the prevailing party (Alba vs. CA 465 SCRA 495)
The use of forged instruments, or perjured testimonies during
trial is not an extrinsic fraud. Such evidence does not preclude
a party’s participation in the trial (Bobis vs. CA 348 SCRA 23;
Strait Times vs. CA GR 126673 August 28, 1998). Offering
perjured testimony or offering manufactured evidence is
intrinsic and not extrinsic fraud. Intrinsic fraud is not sufficient
to annul a judgment (Conde vs. IAC GR L-70443, Sept, 15,
1986).
INTRINSIC FRAUD is that fraud which was an issue in the
litigation such as perjury, false testimony, concealment of
evidentiary facts, but did not prevent you from presenting your
case. That is not a ground for annulment of judgment. So take
note of that principle.
GARCIA vs. CA – 202 SCRA 228 [1991]
HELD: EXTRINSIC FRAUD is that type of fraud which has
prevented a party from having a trial or from presenting his case
in court. INTRINSIC FRAUD is based on the acts of a party in a
litigation during the trial, such as the use of forged instruments
or perjured testimony, which did not affect the presentation of
the case, but did prevent the fair and just determination of the
case.
Q: When is fraud a sufficient ground for new trial?
A: FRAUD, to be a ground for new trial, must be EXTRINSIC –
where the aggrieved party was misled by the adverse party, and
by reason thereof, he was prevented from presenting his case
properly. (Gisburne Supply Co. vs. Quiogue, 34 Phil. 913;
Almeda vs. Cruz, 84 Phil. 636; Sterling Investment Corp. vs.
Ruiz, L-30694, Oct. 31,
1969)
So, intrinsic fraud is not a ground for a new trial.
EXAMPLE: Suppose I am the lawyer of the plaintiff and you are
the lawyer of the defendant. The case will be tried tomorrow. I
called you up and asked you to postpone the trial, “I will tell the
court that I talked to you and you agreed that the trial will be
postponed.” The following day, I appeared in court. When the
case is called, I said that I’m ready. Court: “Saan ang
defendant?” I said, “Wala! Awan!” I then moved to continue the
trial.
So, naisahan kita. I maneuvered a scheme in such a way that
you will not appear in court. You lost your opportunity to
present your side. That is EXTRINSIC FRAUD. Your remedy
now is to file a motion for new trial on the ground that you have
been a victim of EXTRINSIC FRAUD by the plaintiff’s lawyer.
EXAMPLE: There is a case between you and me. During the
trial, I presented witnesses to prove my cause of action. All my
witnesses were lying – they testified falsely. I presented falsified
documents to prove my case. And I won the case because of
those perjured testimonies and falsified documents. You file a
motion for new trial alleging FRAUD – that the testimonies and
documents were falsified.
Q: Should your motion for new trial be granted?
A: NO. Your motion will be denied because the FRAUD is
INTRINSIC because you were not prevented from going to court.
So, your remedy is to expose my perjured and falsified evidence.
You can present rebuttal evidence. It is your obligation to prove
that my witnesses are lying and my documents are false.
Definitely, you cannot ask a motion for a new trial.
ACCIDENT
What is ACCIDENT? It is something unforeseen, something
unexpected or unanticipated. When is accident a sufficient
ground for new trial?
EXAMPLE: A party failed to appear in court because he got sick
at the last minute. Or, in the middle of the trial, the lawyer of
the party becomes sick. With that, the complaint was dismissed
or there was a judgment against you. You can move for new
trial on the ground of accident. (Phil. Engineering Co. vs.
Argosino, 49 Phil.
983)
EXAMPLE: The defendant was declared in default because he
did not file an answer but actually he filed an answer through
mail, but somehow the post office did not deliver it to the court.
That is an accident. With that, I can move for new trial or lift
the order of
default. (Ong Guan Can vs. Century Ins. Co., 45 Phil. 667)
EXAMPLE: The trial was this morning. But I received only the
notice of trial on March 9, 1998 stating that the trial is on
March 5. So the notice of hearing was received days after the
scheduled date. That is an accident which is a ground for new
trial. (Soloria vs. Dela Cruz,
L-20738, Jan. 31, 1966)
MISTAKE
What is MISTAKE? Mistake(n) is nagkamali – I was wrong. Sa
bisaya
pa, ‘nasayop.’
EXAMPLE: Defendant received summons and complaint. The
defendant, instead of seeking assistance of a lawyer, went to the
plaintiff and asked for settlement. They kept on talking about
the settlement but in the meantime, the period to file answer is
also running. Fifteen days had passed by they buy did not settle
yet. Plaintiff moved to declare defendant in default. The court
issued judgment on default. Defendant said, “Layman man
ako. Anong malay ko diyan sa ‘default-default’ na yan.” The
lawyer said, “Sana answer muna before you settle with the
plaintiff.” So the lawyer filed a motion for new trial on the
ground of MISTAKE. The court
granted it. (Salazar vs. Salazar, 8 Phil. 183)
GENERAL RULE: A client is bound by the mistakes of his lawyer
and he cannot file a motion for new trial on the ground of mistake
of his lawyer. In the case of
BELLO vs. LABONG – L-10788, April 30, 1959
HELD: “The mistake of an attorney is not generally a ground for
new trial. The mistake or lack of foresight or preparation on the
part of the attorney cannot be admitted as reason for new trial
in civil cases, otherwise there would never be an end to a suit so
long as a new counsel could be employed who could allege and
show that the prior counsel had not been sufficiently diligent, or
experienced, or learned.”
What the SC is trying to say is this: Suppose we will grant a
new trial for the party on the ground of mistake of his first
lawyer, and after the new trial, the party still lost. So such
party will now hire a third lawyer who will say, “Do you know
why you lost? That is because of the mistake of your second
lawyer so we will file a motion for new trial.” So the third lawyer
will allege mistake of the second lawyer and then we will grant
again a new trial and then he loses again. Then he gets a fourth
lawyer and the fourth lawyer will allege the ground of mistake of
the third lawyer.
So, there will never be an end to a case. So the general rule to
remember is, a client is bound by the mistakes of his lawyer
and he cannot file a motion for new trial on the ground of
mistake of his lawyer. So that is not the type of mistake
contemplated by Rule 37.
The only EXCEPTION is based on equity decision like the case of
PEOPLE vs. MANZANILLA – 43 Phil. 167
HELD: “A new trial is sometimes granted where the
INCOMPETENCY or NEGLIGENCE of the party’s counsel in the
conduct of the case IS SO GREAT that party’s rights are
prejudiced and he is prevented from presenting his cause of
action or
defense.”
EXCUSABLE NEGLIGENCE
Gross negligence of counsel not a ground for new trial
Petitioner’s argument that his counsel’s negligence was so gross
that he was deprived of due process fails to impress. Gross
negligence is not one of the grounds for a motion for a new trial.
We cannot declare his counsel’s negligence as gross as to
liberate him from the effects of his failure to present
countervailing evidence. The Court does not consider as gross
negligence the counsel’s resort to dilatory schemes, such as (1)
the filing of at least three motions to extend the filing of
petitioner’s answer; (2) his nonappearance during the scheduled
pre-trials; and (3) the failure to file petitioner’s pre-trial brief,
even after the filing of several motions to extend the date of
filing (Uy vs. First Metro).
EXCUSABLE NEGLIGENCE – Obviously, inexcusable negligence
is not a ground for new trial. But sometimes, it is difficult to
determine whether the negligence is excusable or inexcusable.
That is also very difficult because there is negligence whether
you like it or not.
When is negligence excusable and when is it inexcusable? Our
only guide here is decided cases because there are many cases
where the SC said that, it is excusable so we will grant a new
trial. Or sometimes naman, wala, that is not excusable so no
new trial. So, we can go on the pattern and find out what type
of negligence warranted a new trial and what type does not
warrant a new trial.
INEXCUSABLE NEGLIGENCE; Examples:
EXAMPLE1: If a defendant lost a case because his lawyer failed
to file an answer. And the excuse of the lawyer was, “I forgot
about the deadline. Nalimutan ko. I did not keep tract of the
deadline to file an answer.” And the SC said, “No dice. That is
not excusable on the part of the lawyer.”
EXAMPLE #2: Your case was dismissed because you failed to
appear in court. Here comes now your lawyer asking for new
trial on the ground of excusable negligence, “I failed to appear in
court because I again forgot about that schedule” or “because I
failed to wake-up because the night before, I and my friends
went to a (Wigmore) party and I went home drunk.” Do you
think the SC will honor that? Is that excusable? Of course not!
EXAMPLE #3: In many cases, the reason is, “I failed to appear
in court because my secretary in my law office failed to inform me
about that notice. Hindi niya nalagay ‘yung notice that I have to
appear in court today.” SC said, “You are bound by the mistake
of your secretary and the client is also bound by that mistake of
the lawyer. In the first place, why did you hire that kind of
secretary?”
EXAMPLE #4: In some cases, “Well, you see your honor, I failed
to appear in court because my secretary did not calendar it.” O,
bakit niya hindi inilagay? “Well, she’s just a newly hired
secretary, she does not know yet the importance of these things.
First time niya.” The SC said, “Hung hang! Pasensiya ka! Why
did you not orient her
before hiring her.”
So all these things hindi lumusot. All these things failed to
convince the SC that the negligence of the party of the lawyer if
excusable.
EXCUSABLE NEGLIGENCE; Examples:
EXAMPLE #1: The answer has to be filed the following day. The
lawyer told the secretary, “I’m leaving tonight. I’ll come back one
week later. You better file tomorrow the answer because
tomorrow is the deadline.” Then he left but the secretary failed
to file it because she also got sick. Ayan. Nagkapatong-patong
na ang malas. Excusable iyan.
EXAMPLE #2: “I failed to appear in court because I had to come
from Manila and the plane was delayed or the flight was
cancelled.
But if the flight proceeded on time I would have been in Davao
City by 7:00 A.M. and I would have been in court at 8:30 A.M.”
Sometimes that happens eh where the flight is cancelled or
delayed. Ano ngayon yan? Sabihin, you should have taken the
flight the night before para sigurado. “Eh, the night before fully
booked na! Anong magagawa ko?” Ayan.
So in other words, these things, you could also consider it as
what? Parang accident din no? Magkahawig eh! In other words
you should use your common sense. Whether the negligence is
forgivable or not.
And to borrow the language of the SC, “The standard of care
required of a party is that which an ordinarily prudent man
bestows on his important business.” (Fernandez vs. Tan Tiong
Tick, L-15877,
April 28, 1961)
So, for EXAMPLE: You are a businessman and you have an
appointment with somebody who will give you a deal of P50
million. And you are scheduled to see him on this date and on
this time. Can you afford to forget that transaction? I think
there is something wrong with you if you forgot it. You do not
know what is important and what is not important. (Ang
importante is yung mahalaga! Di ba?)
There are things which you forget and somehow in forgetting it
you cannot be blamed because it’s not really important. But
there are things which you cannot afford to forget.
EXAMPLE: Your classmate tells you, “This coming Saturday
you go to the house.” “Why? Is there a (Wigmore) party there?”
“Wala man. I’m just inviting you to come ha?” And by Monday,
“I was waiting for you, you did not show up!” “Tama ‘no? Sorry
nalimutan ko.” Now, is forgetting your appointment with your
classmate two days before forgivable or not? I think forgivable
iyan. Anyway, istorya-istorya man lang. Para bang, “O, sige, di
sa susunod na Sabado na lang.” Meaning, madaling ma-erase
sa mind mo yang mga ganyang klaseng appointment ba!
EXAMPLE: But suppose on Saturday morning you are
supposed to go to church for your wedding, hindi ka nakasipot.
And then you tell your bride or the groom, “Pasensiya ka na
ha? Kasal pala natin, nakalimutan ko eh. (Sana t-in-ext mo ako.
Wala kang load ‘no?
hahaha!)” I think he or she will kill you for that kind of
reasoning.
EXAMPLE: If a lawyer says, “I forgot that this is the day I should
file an answer for my client.” Or, “I forgot to appear in court on
the day of his trial.” Is the court’s schedule or the schedule of a
lawyer something important for him or not? I think you know
the answer ‘no?
Ayan! Kaya iyan ang guide. That is the meaning of excusable
negligence.
NEWLY DISCOVERED EVIDENCE
Section 1(b). Newly discovered evidence,
which he could not, with reasonable
diligence, have discovered and produced
at the trial, and which if presented would
probably alter the result.
Q: What is Newly Discovered Evidence (NDE)?
A: NDE is evidence which was discovered after trial, or cannot be
discovered during trial given the exercise of reasonable diligence,
and if admitted, such evidence would probably alter the result of
the case. There is a fighting chance ba! So, you could not have
discovered the evidence even with exercise of due diligence.
This is also one of the grounds for new trial in criminal cases.
You lost a case maybe because you do not have enough
evidence to prove your cause of action. Kulang ba! Kulang ka ng
ebidensiya kaya natalo ka. Then after you lost the case, you
came across an important evidence, maybe a witness or a
document and you learned about it for the first time. Ang
sayang ‘no? If I was able to present this evidence baka panalo
ako.
EXAMPLE: You are a defendant being sued because of
nonpayment of an account. Ang depensa mo, bayad na. Pero
saan ang resibo? “Basta binayaran ko siya, ok naman. Sabi nga
niya wala na raw akong utang.” Now, so it’s your word against
his word and the court did not believe you. Then eto naman
ang sabi ni X, “Natalo ka? Bayad naman yan ba.” Kung ganun,
bakit alam mo? X: “Nandoon man ako ba. I was there watching
when you paid him.” Meaning, kung nagtestify ka (X) noon,
baka daug ako because my defense would have been
corroborated by you. Yaaann!
Q: What are the REQUISITES for NDE (Berry Rule)?
A: The following:
1) That the evidence was discovered after trial;
2) That it could not have been discovered during trial even
with exercise of reasonable diligence; and
3) The evidence is of such weight that if admitted, such
evidence would probably alter the result; and
4) it must be material and not merely collateral,
cumulative or corroborative.
These standards, also known as the "Berry" rule, trace their
origin to the 1851 case of Berry vs. State of Georgia.
Newly discovered evidence need not be newly created evidence.
It may and does commonly refer to evidence already in existence
prior or during trial but which could not have been secured and
presented during the trial despite reasonable diligence on the
part of the litigant. (Tumang vs. CA GR No. 82346-47, April 17,
1989).
THAT THE EVIDENCE WAS DISCOVERED AFTER
TRIAL;
Newly discovered evidence vs. Forgotten evidence
In the former, the evidence was not available to a party during
the trial, and was discovered only after the trial while in
forgotten evidence, the evidence was already available to a party
and was not able to present it through inadvertence or
negligence of counsel. The latter is not a ground for new trial.
EXAMPLE: There was a case where a party, through his lawyer
filed a motion for new trial based on this document. Bakit hindi
mo preni-sent sa trial? “I misplaced it in my drawer. Nalimutan
ko na meron pala akong resibo. So, let’s have a new trial
because I will now introduce a ground for new trial.” Obviously,
it was discovered after trial. It was in your possession for so
long. And according to the SC, that is not a newly discovered
evidence. (That is katangahan!) That is forgotten evidence which
is not a ground for new trial.
THAT IT COULD NOT HAVE BEEN DISCOVERED DURING
TRIAL
EVEN WITH EXERCISE OF REASONABLE DILIGENCE
Meaning, even if you try your best to look for it, you would not
have found it. Now na natalo ka, you suddenly found it.
Now, because there are clients who are lazy eh. So, meron ka
bang dokumento? “Wala eh. You see, marami akong file diyan
pero tingin ko wala eh.” “Wala gyud?” “Wala.” So, talo. Walang
ebidensiya eh! After a while pag-halungkat, “Atty., naa man
diay.” “My golly! Nganong karon man lang. I gave you several
months to look for that. You’re so lazy. Now, that you lost, you
only find it for an hour.” In this case, you did not comply with
the second requisites – that it could not have been discovered
before trial even with the exercise of reasonable diligence.
THAT IF ADMITTED, SUCH EVIDENCE WOULD PROBABLY
ALTER
THE RESULT
Meaning, if there is a new trial and the newly discovered
evidence will be admitted, it would probably alter the result.
Probably lang. May fighting chance, pero ‘chance’ lang. You are
not saying that if the new evidence will be admitted, you will
automatically win. There is a probability that you will win. And
the court will say, “I think probable. Ok, new trial granted. Then
defendant, PASOK!” (cguro, d jdge hir is myk enriquez?) Then,
the evidence will be presented and we will find out if you can
win.
NEW TRIAL vs. REOPENING OF TRIAL
The SC has already made pronouncements on what the
reopening of trial meant. Reopening of trial is not found in the
law. There is no express rule, but it is admittedly allowed. Now
give an example of reopening of trial.
EXAMPLE: Tapos na ang trial. What will come next is decision
and then the party said, “Your honor, could we reopen the trial?
Meron kaming nakalimutan eh. I forgot an important piece of
evidence.”
Now, that cannot be new trial because wala pa man ang
judgment. Rule 37 applies only when there is already a
judgment. In the example, is that a motion for new trial? No. It
should be called a motion for reopening of trial.
So if the motion is filed after the judgment is rendered, it is
called motion for new trial. When the motion is filed before a
judgement is rendered, it should be called a motion for
reopening of trial.
EXAMPLE: A judge after trying the case, “Alright, I will not
decide yet. I want to go to the area and look at the property.”
Meaning, the court, on its own, would like to conduct an ocular
inspection. That is a reopening of the trial. Now, was there any
motion by anybody? Wala man ba. The court itself initiated it.
And that is allowed said by the SC. Reopening of trial is bound
by no rules. The judge with or without a motion can do it. The
only ground for reopening of trial is interest of justice. And that
is very broad. So there are no rules.
The SC said: New trial should be distinguished from the exercise
of the discretionary power of the court to REOPEN a trial for the
introduction of additional evidence, to clarify its doubts on
material points. This discretionary power is subject to no rule
other than the paramount interest of justice and will not be
reviewed on appeal unless the exercise thereof is abused. (Arce
vs. Arce, L-13035, Nov. 28, 1959) So it is one of the inherent
powers of the court.
MOTION FOR RECONSIDERATION
Q: What is the ground for a motion for reconsideration?
A: Third paragraph of Section 1:
Within the same period, the aggrieved
party may also move for reconsideration
upon the grounds that the damages
awarded are excessive, that the evidence is
insufficient to justify the decision or final
order, or that the decision or final order is
contrary to law.(1a)
Q: When do you file a motion for reconsideration?
A: Within the same period for filing a motion for new trial.
Meaning, within the period for taking an appeal.
Q: What are the grounds for a motion for reconsideration?
A: The following are the
GROUNDS for a motion for
reconsideration:
1) The damages awarded are excessive;
2) The evidence is insufficient to justify the decision or
final order;
3) The decision or order is contrary to law. (in effect, the
decision is wrong)
Motion for reconsideration is more common. Motions for new
trial are very rare.
In a motion for reconsideration, you convince the court that the
decision is wrong, that the decision is contrary to law.
MOTION FOR NEW TRIAL OR RECONSIDERATION; FORMAL
REQUIREMENTS
Sec. 2. Contents of motion for new trial or
reconsideration and notice thereof. The
motion shall be made in writing stating the
ground or grounds therefor, a written
notice of which shall be served by the
movant on the adverse party.
A motion for new trial shall be proved in
the manner provided for proof of motions.
A motion for the cause mentioned in
paragraph (a) of the preceding section shall
be supported by affidavits of merits which
may be rebutted by affidavits. A motion for
the cause mentioned in paragraph (b) shall
be supported by affidavits of the witnesses
by whom such evidence is expected to be
given, or by duly authenticated documents
which are proposed to be introduced in
evidence.
A motion for reconsideration shall point
out specifically the findings or conclusions
of the judgment or final order which are
not supported by the evidence or which are
contrary to law, making express reference
to the testimonial or documentary
evidence or to the provisions of law alleged
to be contrary to such findings or
conclusions.

A pro forma motion for new trial or reconsideration
shall not toll the
reglementary period of appeal. (2a)
Q: What should be the form of a motion for new trial?
A: It must be in writing. You must state the ground or grounds
for the motion, whether it is FAME or newly discovered
evidence. Then, of course, you must serve a copy of the motion
to the adverse party. Meaning, you comply with all the
requisites of a valid motion.
PEOPLE vs. CA – 296 SCRA 418 [Sept. 25, 1998]
FACTS: Inday filed a motion for new trial without a notice of
hearing (this is a violation of paragraph of Section 2). But she
filed the motion within 15 days. Inday filed a supplemental
motion with notice of hearing but filed beyond the 15-day
period. Should the court deny the motion?
HELD: The motion should be denied. “A supplemental pleading
subsequently filed to remedy the previous absence of notice will
not cure the defect nor interrupt the tolling of the prescribed
period within which to appeal.”
“We are not impressed by the argument that the supplement
filed by the appellants on May 30 should be deemed retroactive
as of the date the motion for reconsideration was filed and,
therefore, cured the defect therein. To so consider it would be to
put a premium on negligence and subject the finality of
judgments to the forgetfulness or whims of parties-litigants and
their lawyers. This of
course would be intolerable in a well-ordered judicial system.”
The second paragraph says, “A motion for new trial shall be
proved in the manner provided for proof of motions…” What does
that mean? What is the proof of motions? The manner or
proving motions is also found in Rule 15, Section 3:
Rule 15, Sec. 3. Contents. - A motion shall
state the relief sought to be obtained and
the grounds upon which it is based, and if
required by these Rules or necessary to
prove facts alleged therein, shall be
accompanied by supporting affidavits and
other papers.
(3a)
Q: Everytime you file a motion, is it necessary that the ground
for your motion is supported by affidavits or other papers?
A: If it is necessary –YES. If it is not necessary – NO NEED. If
necessary, you must attach documents or supporting affidavits
like a medical certificate for a motion to postpone due to illness.
Q: Is it necessary that when you file motion for new trial, you
must attach affidavits?
REQUIREMENTS WHEN THE GROUND IS F.A.M.E.
A motion for new trial based on FAME must include an affidavit
of merit, which states:
1) the hature or character of FAME;
2) the facts constituting the movant's good and
substantial defense or valid cause of action; and
3) the evidence which he intends to present if his motion
is granted.
Section 2, second paragraph says, “A motion for the cause
mentioned in paragraph [a] of the preceding section shall be
supported by affidavits of merits…” Paragraph [a] is FAME. So,
a motion for new trial on the ground of FAME must be
accompanied by affidavits of merits. A motion for the cause
mentioned in paragraph “a” shall be supported by affidavit of
merit. A motion based on the ground in letter “b” shall be
supported by affidavits of the witnesses by whom such evidence
is expected to be given, or by duly authenticated documents
which are proposed to be introduced in evidence (Sec. 2). Non-
compliance with this requirement would reduce the motion to a
mere pro forma motion. Under the explicit provisions of the rule
(Sec. 2), a pro forma motion for reconsideration shall not toll the
reglementary period of appeal.
Affidavit of Merit
The affidavit of merits, must be one showing the facts (not mere
conclusions or opinions) constituting the valid cause of action or
defense which the movant may prove in case a new trial is
granted, because a new trial would serve no purpose and would
just waste the time of the court as well as the parties if the
complaint is after all groundless or the defense is nil or
ineffective.
Under the Rules, the moving party must show that he has a
meritorious defense. The facts constituting the movant’s good
and substantial defense, which he may prove if the petition were
granted, must be shown in the affidavit which should
accompany the motion for new trial. Mere allegations that one
has a “meritorious defense” and a “good cause” are mere
conclusions which do not provide the court with any basis for
determining the nature and merit of the case. An affidavit of
merit should state facts, and not mere opinion or conclusions of
law. Petitioner’s motion for new trial and affidavit of merit did
not mention the evidence which he was prevented from
introducing, nor did it allege that such evidence would change
the outcome of the case (Uy vs. First Metro Integrated Steel
Corporation, G.R. No. 167245, Sept. 27, 2006).
An AFFIDAVIT OF MERITS is one which recites the nature and
character of FAME on which the motion is based and stating the
movant’s good and substantial cause of action or defense and the
evidence he intends to present if the motion is granted, which
evidence should be such as to warrant reasonable belief that the
result of the case would probably be otherwise. (Paz vs. Inandan,
75
Phil. 608; Manila Surety vs. Del Rosario, 101 Phil. 412)
Meaning, you must state the facts surrounding FAME and your
meritorious cause of action or defense whether you are the
plaintiff or the defendant. You explain why you are a victim of
fraud, etc. and that you have a good cause of action or defense
which if there will be a new trial, you might win. It is not
enough that you are a victim of FAME, you must also have a
meritorious cause of action or defense.
Q: What happens if you file a motion without affidavit of merits?
A: Then, your motion for new trial will be immediately denied. It
is a fatal mistake. Your motion for new trial is classified as a
PRO-FORMA motion for new trial.
Pro-forma motion is one where the movant fails to make
reference to the testimonial and documentary evidence on record
or the provisions of law alleged to be contrary to the trial court's
conclusion as well as the reasons thereof or if there is no affidavit
of merit.
Two types of pro-forma motion for new trial:
1) It is a motion for new trial which does not comply in
substance or in form with Sections 1 and 2 of Rule 37;
and
2) a second motion for new trial on a ground available to
the party when the first motion was filed (Section 5).
Indicators of a pro-forma motion
1) it is based on the same ground as that raised in the
denied motion under Rule 37;
2) it contains the same arguments in the opposition to a
granted motion to dismiss;
3) the ground alleged in the second motion for new trial
already existed; was available and could have been
alleged in the first motion for new trial which was
denied;
4) it is based on the ground of insufficiency of evidence or
that the judgment is contrary to law but does not
specify the supposed defects in the judgment;
5) it is based on FAME but does not specify the facts
constituting these grounds and/or is not accompanied
by
an affidavit of merit; and
6) non-complaince wh the requirements of R 15.
Note that a motion for reconsideration, if based on the same
grounds as that of a new trial is considered a motion for new
trial and has the same effect. (Rodriguez vs. Rovira, GR No.
45252, Sept.
24, 1936)
Q: What is the EFFECT of a pro-forma motion for new trial?
A: The period to appeal is NOT interrupted by the filing of
such motion for new trial. Even the right to appeal may be
forfeited because of this defect. The effect is now stated in the
last paragraph of Section 2:
A pro forma motion for new trial or
reconsideration shall not toll the
reglementary period of appeal. (2a)
Q: Suppose a movant will file a motion for new trial in the
ground of FAME with the affidavits of merits and says “I am a
victim of fraud and if such motion is granted, I have a good and
meritorious cause of action or good and meritorious defense.” Is
the affidavit sufficient?
A: SC –No, those are generalities, you must recite the facts
constituting the FAME. You must describe exactly what
happened to you. To say that you have good cause of action or
defense is INSUFFICIENT.
You must state what is the nature of that cause of action or
defense and evidence you intend to present. So, there is an
affidavit of merit but it is fatally defective. Again what will
happen to the motion. It will be treated as pro-forma. The
affidavit of merit is defective.
MANIPOL vs. LIM TAN – 55 SCRA 202
FACTS : A defendant in an action for damages based on quasi-
delict filed a motion for new trial citing FAME. He says, “I have a
good and meritorious cause of action or defense. I intend to prove
that I exercised due diligence in the selection or supervision of my
drivers
and which if proven relieves the employer from liability.”
HELD: Affidavit of merits is defective. It is pro-forma motion. It
does not state the meritorious defense. There is only a general
statement or conclusion of the defendant. The defendant should
state the details of how he supervised his employees. You go to
specifics.
The law is very strict about affidavits of merits. It is not enough
that you state your defense. You must demonstrate that you
have a meritorious claim of defense so that the motion for new
trial will be granted. What is the use of granting a new trial if
after the new trial you will still end up losing the case? It would
be a waste of time. According to SC, “ It would be pointless to
reopen a case if a party does not have a meritorious cause of
action of defense for like a mirage it would merely raise false
hopes and at the end avail the movant nothing.” (Arcilla vs.
Arcilla, L-46674, Sept. 16, 1985) It would raise false hope if you
will grant a new trial when in fact the movant has no
meritorious cause of action. It’s like a mirage or illusion –
seeing things which are not there. [malayo ang tingin, hindi
naman duling…]
It seems that there are really two affidavits. Normally when a
lawyer files motion for new trial, there is one affidavit reciting
FAME and reciting the meritorious cause of action or defense. If
you follow the SC there are two (2) affidavits: FIRST – affidavit
regarding the FAME; and SECOND – affidavit regarding the
meritorious cause of action of defense.
But in the case of PCIB vs. ORTIZ (150 SCRA 382), the SC
implied that the real Affidavit Of Merits should be the second
one – that I have a good and meritorious defense. In reality,
there should be two (2) affidavits – one reciting the FAME and
one reciting the substantial cause of action. That is why a
motion for new trial on FAME should ordinarily be accompanied
by two affidavits. One setting forth the facts and circumstances
alleged to constitute FAME and the other an Affidavit of Merits
setting forth the particular claims to constitute the movant’s
meritorious defense or cause of action. The real Affidavit of
Merits is the second one.
REQUIREMENTS WHEN THE GROUND IS NEWLY
DISCOVERED
EVIDENCE
Q: Suppose your ground for new trial is newly discovered
evidence (NDE). What is the requirement?
A: Section 2, 2nd paragraph, 3rd sentence provides, “A motion
for the cause mentioned in (Section 1) paragraph [b] (NDE) shall
be supported by affidavits of the witnesses by whom such
evidence is expected to be given, or by duly authenticated
documents which
are proposed to be introduced in evidence.”
Meaning, when the ground is newly discovered evidence, the
motion shall be supported by affidavits also – affidavits of the
newly discovered witness – or a copy of the newly discovered
document. You have to state what is the newly discovered
evidence, what the witness will say.
Q: What happen when such requirement is not complied with?
A: The motion for new trial on the ground of NDE is treated as The SC once defined a pro forma motion as one filed for the sake
PROFORMA and it never tolled the reglementary period to of form. (Dapin vs. Dionaldo, G.R. No. 55488, May 15, 1992)
appeal.
Another POINT: when you file a motion for reconsideration on
MOTION FOR RECONSIDERATION; FORMAL the ground that the judgment is contrary to law, it is not
REQUIREMENTS enough for you to say that. You must always point out clearly
why it is contrary to law, otherwise your motion will be denied
Q: Again, what are the grounds for a motion for or treated as proforma.
reconsideration?
Q: When you file a motion for reconsideration and it is denied,
A: The following are the does it mean to say that your motion is pro-forma?
GROUNDS for a motion for
reconsideration: A: NO, because maybe the judge was not convinced but you
tried your best. The denial of motion for reconsideration on the
1) The damages awarded are excessive; ground that the decision or judgment is wrong does not
2) The evidence is insufficient to justify the decision or final automatically make the motion a pro-forma. What makes it
order; pro-forma is, if your motion for reconsideration does not
specifically point out why judgment is wrong. But if you comply
3) The decision or order is contrary to law. (in effect, the
with Section 2, that is already sufficient.
decision is wrong)

In the case of
Pro forma MR

MARIKINA VALLEY DEV’T. CORP. vs. FLOJO – 251 SCRA 87

In the cases where a Motion for Reconsideration was held to be
[1995]
pro forma, the motion was so held because

HELD: “A motion for reconsideration merely reiterates or

1) it was a second MR, or
2) it did not comply with the rule that the motion must
specify the findings and conclusions alleged to be
contrary to law or not supported by the evidence, or
3) it failed to substantiate the alleged errors, or
4) it merely alleged that the decision in question was
contrary to law, or (5) the adverse party was not given
notice thereof.
Q: Can you file a motion for reconsideration by just simply
stating that “the decision is wrong or contrary to law,” or “the
findings of the judge are not supported by evidence”?
repleads the same arguments which had been previously
considered and resolved in the decision sought to be
reconsidered, the motion is a pro forma one.”
“The circumstance that a motion for reconsideration deals with
the same issues and arguments posed and resolved by the trial
court in its decisions does not necessarily mean that the motion
must be characterized as merely pro forma. A pleader preparing
a motion for reconsideration must of necessity address the
arguments made or accepted by the trial court in its decision.
The movant is very often confined to the amplification or further
discussion of the same issues already passed upon by the trial
court.” Precisely, when I filed a motion for reconsideration, we
will go over the same points which the court has already
discussed.

A: NO. Under Section 2, 3rd paragraph, you must point out
specifically the findings or conclusions of the judgment or final
order which are not supported by the evidence or which are
contrary to law, making express reference to the testimonial or
documentary evidence or to the provisions of law alleged to be
contrary to such findings or conclusions.
So, you must point out what findings is not supported by
evidence – what conclusion is contrary to law. Do not let the
judge look for it. The judge will never bother to look for it. You
tell him what portion of the decision is wrong. You have to cite
the evidence too and the law which is violated or what
provisions apply.
Q: What happen when you file a motion for reconsideration
without making any reference, exhibit etc? Meaning, you did not
comply with the 3rd paragraph.
A: You motion will be denied because it is PRO-FORMA. Thus, it
will never interrupt the reckoning of the prescriptive period.
A pro forma motion is one which does not satisfy the
requirements of the rules and one which will be treated as a
motion intended to delay the proceedings (Marikina
Development Corporation vs.
Flojo, 251 SCRA 87).
“Where the circumstances of a case do not show an intent on
the part of the movant merely to delay the proceedings, our
Court has refused to characterize the motion as simply pro
forma. The doctrine relating to pro forma motions for
reconsideration impacts upon the reality and substance of the
statutory right of appeal, that doctrine should be applied
reasonably, rather than literally. The right to appeal, where it
exists, is an important and valuable right.”
“A motion for reconsideration which is not as starkly bare but
which, as it were, has some flesh on its bones, may nevertheless
be rendered pro forma where the movant fails to make reference
to the testimonial and documentary evidence on record or the
provisions of law said to be contrary to the trial court’s
conclusions. In other words, the movant is also required to
point out succinctly why reconsideration is warranted.”
“It is not enough that a motion for reconsideration should state
what part of the decision is contrary to law or the evidence; it
should also point out why it is so. Failure to explain why will
render the motion for reconsideration pro forma.” Meaning,
when I point out part of the decision that is contrary to the law,
it is not pro forma. But still it is pro forma if I will not state that
it is contrary to law.
“Where a substantial bonafide effort is made to explain where
and why the trial court should be regarded as having erred in
its main decision, the fact that the trial court thereafter found
such argument unmeritorious or as inadequate to warrant
modification or reversal of the main decision, does not, of
course, mean that the motion for reconsideration should have
been regarded, or was
properly regarded, as merely pro forma.”
So, I point the decision but the court does not agree with me.
That does not mean that my motion is automatically pro forma
because there was attempt to convince the court why it is
wrong.
EFFECTS WHEN MOTION IS GRANTED
Sec. 3. Action upon motion for new trial or
reconsideration. The trial court may set
aside the judgment or final order and
grant a new trial, upon such terms as may
be just, or may deny the motion. If the
court finds that excessive damages have
been awarded or that the judgment or final
order is contrary to the evidence or law, it
may amend such judgment or final order
accordingly. (3a, R37)
Sec. 6. Effect of granting of motion for new
trial. If a new trial is granted in accordance
with the provisions of this Rule, the
original judgment or final order shall be
vacated, and the action shall stand for
trial de novo; but the recorded evidence
taken upon the former trial, in so far as
the same is material and competent to
establish the issues, shall be used at the
new trial without retaking the
same. (5a)
Q: In Section 3, how will the court resolve your motion for new
trial?
A: The court may either deny or may set aside the judgment or
final order and grant a new trial. Literally, if the judgment is set
aside, there will be a trial de novo, a Latin word for new trial.
BAR QUESTION: If Cholo files a Motion For New Trial and it is
granted, will there always be a trial de novo?
A: It DEPENDS on the ground for the motion:
a) If the ground is FAME, there will be a trial de novo
because the proceeding will be set aside;
b) If the ground is NDE, there is no trial de novo. The
evidence admitted which is based on the same decision
will remain. The case will be opened only for the
purpose of admitting the new evidence.
Q: If Cholo files a Motion For Reconsideration and it is granted,
will there be a trial de novo?
A: There is NO trial de novo. The court will simply amend its
judgment. It is only a re-study of provision. The court will study
its decision and go over the evidence and find out whether it
made a mistake or not
Period to Resolve Motion for New Trial or Reconsideration
Sec. 4. Resolution of motion. A motion for
new trial or reconsideration shall be
resolved within thirty (30) days from the
time it is submitted for resolution. (n)
There is now a deadline for the court to act on the motion –
within 30 days from the time it is submitted for resolution.
Denial of the motion; the “fresh period” rule
If the motion is denied, the movant has a “fresh period” of fifteen
(15) days from receipt or notice of the order denying or
dismissing the motion for new trial within which to file a notice
of appeal for the same reason and grounds as the “fresh period”
rule governing a denial of a motion for reconsideration (Neypes
vs. CA, G.R. No.
141524, Sept. 14, 2005)
The fresh period rule applies to Rule 41 governing appeals from
the MTC to the RTC; Rule 42 on petitions for review from the
RTC to the CA; Rule 43 on appeals from quasi-judicial agencies
to the CA and Rule 45 governing appeals by certiorari to the SC.
Accordingly, this rule was adopted to standardize the appeal
periods provided in the Rules and to afford fair opportunity to
appeal their cases and to give the trial court another
opportunity to review their case and, in the process, minimize
any error of judgment.
It is clear from Neypes that the ruling shall not be applied where
no motion for new trial or motion for reconsideration has been
filed in which case the 15-day period for appeal shall run from
notice of judgment.
Order of denial, not appealable
The fresh period rule does not refer to the period within which
to appeal from the order denying the motion for reconsideration
but to the period within which to appeal from the judgment
itself because an order denying a motion for reconsideration or
new trial is not appealable (Section 9).
Remedy when motion is denied
The remedy from an order denying a motion for reconsideration
is not to appeal from the order of denial because such order is
not appealable. The remedy is to appeal from the judgment or
final order itself subject of the motion (Sec. 9).
Can an order of denial be assailed by a petition for
certiorari under Rule 65?
Not anymore. Effective December 27, 2007, an order of denial
is no longer assailable by certiorari because of the amendment
to Rule 41 by A.M. No. 07-7-12-SC. Deleted from those matters
from which no appeal can be taken and from which order Rule
65 petition may be availed of, is “an order denying a motion for
new trial or a reconsideration”. The amendment obviously seeks
to prevent the filing of a petition for certiorari under Rule 65
based on an order denying a motion for new trial or a motion for
reconsideration. The remedy available therefore, would be that
prescribed under Sec. 9, i.e., to appeal from the judgment or
final order.
SECOND MOTION FOR NEW TRIAL OR RECONSIDERATION
Sec. 5. Second motion for new trial. A motion
for new trial shall include all grounds then
available and those not so included shall
be deemed waived. A second motion for
new trial, based on a ground not existing
nor available when the first motion was
made, may be filed within the time herein
provided excluding the time during which
the first motion had been pending.
 No party shall be allowed a second motion for
reconsideration of a judgment or final
order. (4a, R37; 4, IRG)
"Single motion rule" simply means that a party shall not be
allowed to file a second motion for reconsideration of judgment or
of a final order (Riano, 2009).
As a rule, the motion for new trial shall include all grounds then
available and those not included are deemed waived. So, if the
motion for new trial is based on two (2) grounds – FAME and
NDE – either or both grounds should be included in the motion.
Q: Suppose a motion for new trial, which is based only on
FAME, was denied, can there be a second motion for new trial
on the ground of NDE?
A: It DEPENDS:
a) If the NDE is already existing when the first motion
was filed, then the second motion for new trial will be
denied because of failure to raise it earlier – the second
ground
is deemed waived for failure to raise the same;
b) However, if the ground for the second motion for new
trial is something not known or not existing or not
available when the party filed the first motion, then the
second motion is allowed. The second motion is not a
pro forma motion.
So, what the law prohibits is you file a motion for new trial and
you do not include all the grounds then available. If the ground
surfaced only later, then it is allowed. Therefore, the motion for
new trial is an example of omnibus motion as defined in Rule
15, Section 8:
Sec. 8. Omnibus motion. - Subject to the
provisions of section 1 of Rule 9, a motion
attacking a pleading, order, judgment, or
proceeding shall include all objections
then available, and all objections not so
included shall be deemed waived. (8a)
Q: What happens if you file a second motion for new trial on a
ground which is then available when the first motion was filed?
A: The second motion is a pro forma motion and will not
interrupt the remaining balance of the period to appeal after the
first motion was denied. There was a clear violation of omnibus
motion rule.
Q: So, there are two (2) types of pro forma motion for new trial
under Rule 37. What are they?
A: The following:
1) A motion for new trial which is not supported by
affidavits of merits – one which does not comply in
substance or in form with Section 2; and
2) A second motion for new trial on a ground available to
the party when the first motion was filed (Section 5).
Take note that the 2nd paragraph of Section 5 provides that “No
party shall be allowed a second motion for reconsideration of a
judgment or final order.” Therefore, a second motion for
reconsideration is always treated as a pro forma motion because
it is totally prohibited by Section 5.
Q: Distinguish a Motion for New Trial from a Motion for
Reconsideration.
A: The following are the distinctions:
1) As to grounds:
In a MOTION FOR NEW TRIAL, the grounds are FAME
and
NDE, whereas
In a MOTION FOR RECONSIDERATION, the grounds
are excessive damages, decision is not supported with
evidence, or decision is contrary to law;
2) As to trial:
If a MOTION FOR NEW TRIAL is granted, there could
be a
trial de novo; whereas
If as MOTION FOR RECONSIDERATION is granted,
there is
no trial de novo. The court will only amend its decision
3) As to a second motion:
A second MOTION FOR NEW TRIAL is allowed if the
ground was not existing when the first motion for new
trial was filed; whereas
A second MOTION FOR RECONSIDERATION is always
prohibited under the rules.
Sec. 7. Partial new trial or reconsideration. If
the grounds for a motion under this Rule
appear to the court to affect the issues as
to only a part, or less than all of the
matter in controversy, or only one, or less
than all, of the parties to it, the court may
order a new trial or grant reconsideration
as to such issues if severable without
interfering with the judgment or final
order upon the rest.
(6a)
Q: Is there such a thing as motion for partial new trial or a
motion for partial reconsideration?
A: YES, if the party is questioning only one aspect or portion of
the case. Therefore, the rest can become final while the disputed
portion does not become final.
So, there could be a new trial or reconsideration only on such
issues and there will be a final judgment with respect to the
other issues of the case. How could this happen? The best
example is Rule 31, Section 2:
Rule 31, Sec. 2. Separate trials. The court,
in furtherance of convenience or to avoid
prejudice, may order a separate trial of
any claim, cross-claim, counterclaim, or
thirdparty complaint, or of any separate
issue or of any number of claims, cross-
claims, counterclaims, third-party
complaints or
issues. (2a)
If the cross-claim or third-party complaint are tried separately,
there will be different judgments. And in effect, you can file a
partial motion for new trial or reconsideration to the facts
contemplated by the case. xxxxx

Sec. 8. Effect of order for partial new trial.
When less than all of the issues are
ordered retried, the court may either
enter a judgment or final order as to the
rest, or stay the enforcement of such
judgment or final
order until after the new trial. (7a)
This is a continuation of Section 7.
Q: When there is a partial new trial, what will happen to the
judgment on the undisputed facts?
A: Either:
a) the court will enter judgment on it; or
b) the court may stay the enforcement until after the new
trial.
The following rules will describe the situation in Section 8:
Rule 36, Sec. 5. Separate judgments. When
more than one claim for relief is presented
in an action, the court, at any stage, upon
a determination of the issues material to a
particular claim and all counterclaims
arising out of the transaction or
occurrence which is the subject matter of
the claim, may render a separate judgment
disposing of such claim. The judgment
shall terminate the action with respect to
the claim so disposed of and the action
shall proceed as to the remaining claims.
In case a separate judgment is rendered,
the court by order may stay its
enforcement until the rendition of a
subsequent judgment or judgments and
may prescribe such conditions as may be
necessary to secure the benefit thereof to
the party in whose favor the judgment is
rendered. (5a)
Finality of judgment with respect to one portion of the case and
the trial continues with the other portion. There are several
judgments involving one action and technically, if one is
finished, it can be enforced unless the court provided otherwise.
Another provision is Rule 39, Section 2 [b]:
Rule 39, Sec. 2. Discretionary execution.
A: You appeal from the judgment. You cannot appeal from the
motion for new trial. That is related to
Rule 41, Section 1 [a]:
(b) Execution of several, separate or partial
judgments.— A several separate or partial
judgment may be executed under the same
terms and conditions as execution of a
judgment or final order pending appeal. (2a)
Discretionary execution or execution pending appeal. In case of
an appeal, Section 1, Rule 41 [g]:
Rule 41, Section 1. Subject of appeal. An
appeal may be taken from a judgment or
final order that completely disposes of the
case, or of a particular matter therein
when declared by these Rules to be
appealable.
No appeal may be taken from:
x x x x x (g) A judgment
or final order for or against one or more of
several parties or in separate claims,
counterclaims, cross-claims and thirdparty
complaints, while the main case is
pending, unless the court allows an appeal
therefrom; and
xxxxx
Let’s go back to Rule 37.
Sec. 9. Remedy against order denying a
motion for new trial or reconsideration. An
order denying a motion for new trial or
reconsideration is not appealable, the
remedy being an appeal from the judgment
or final order. (n)
An order denying a motion for new trial or reconsideration is not
appealable (c.f. Rule 41, Section 1 [a]. The remedy being an
appeal from the judgment or final order.
ILLUSTRATION: The judgment is against you. So you filed a
motion for new trial or reconsideration. The court denied your
motion. So there is an order denying your motion for new trial
or reconsideration. Now, you want to appeal.
Q: Appeal from what? From the main judgment or from the
order denying your motion?
order denying your new

Rule 41, Section 1. Subject of appeal. An appeal may be taken from a

judgment or final order that completely disposes of the case, or of a
particular matter therein when declared by these Rules to be appealable.

NO APPEAL may be taken from:

(a) An order denying a motion for new trial or reconsideration;

xxxxxx
Well, of course, the filing of this motion will stop the running of the 15-day
period, unless your motion for new trial is pro-forma. Generally, the law does not
allow an appeal from the order denying your motion for new trial. You appeal from the
decision, not from the order denying your motion. This provision will come out again
when we reach the rule on appeal.

OUTLINE of the process: (after trial)

 1.) Decision/Judgment;
2.) Motion for New Trial or Reconsideration (Rule 37);
3.) If denied, court makes a order denying your motion for new trial or
reconsideration; 4.) Appeal based on the decision/judgment and not based
on the order denying your motion.

Rule 38 The term final when used to describe a judgment may be

used in two senses
RELIEF FROM JUDGMENTS, ORDERS, OR OTHER
PROCEEDINGS In the first, it refers to a judgment that disposes of a case in a
manner that leaves nothing more to be done by the court in
Section 1. Petition for relief from judgment, respect thereto. In this sense, a final judgment is distinguished
order, or other proceedings. When a from an interlocutory order which does not finally terminate or
judgment or final order is entered, or any dispose of the case (Rudecon Management Corporation vs.
other proceeding is thereafter taken Singson, 454 SCRA 612). Here the remedies are a Motion for
against a party in any court through fraud, Reconsideration, motion for New Trial and appeal.
accident, mistake, or excusable
negligence, he may file a petition in such In another sense the word “final” may refer to a judgment that is
court and in the same case praying that no longer appealable and is already capable of being executed
the judgment, order or because the period for appeal has lapsed without a party having
proceeding be set aside. (2a) perfected an appeal of it there has been an appeal, it has
already been resolved by a highest possible tribunal (PCGG vs.
This is not applicable to the Supreme Court because it is not a Sandiganbayaan 455 SCRA526). In this sense, the judgment is
trier of facts commonly referred to as one that is “final and executory.”

After the judgment becomes final and executory, the losing Rule 38 is known as the remedy of petition for relief from
party may avail of the following: judgment or final order. The grounds cited here are actually the
same as the grounds for new trial – FAME. We are meeting
a) Petition for Relief from Judgment; FAME for the third time. It seems to be a ground that keeps on
b) Action to Annul a Judgment; going back. First in Default, then New Trial, and now a ground
c) Certiorari; and for petition for Relief from Judgment.
d) Collateral attack of a judgment.
This is not an independent action but a continuation of the old
case.
It is filed with the same court which decided it.
Under the present Rules, petitions for relief from a judgment,
final order or other proceedings should be filed in and resolved
by the court in the same case from which the petition arose.
Thus, petition for relief from a judgment, final order or
proceeding involved in a case tried by a municipal court shall be
filed in and decided by the same court in the same case, or in
the Regional Trial Court if the case was decided by it (Redena
vs. CA GR No. 146611, February 6, 2007).
Grounds:
1) when judgment or final order is entered into or any
other proceeding is thereafter taken against the
petitioner through FAME;
The "other proceeding" includes an order or writ of
execution, or an order dismissing an appeal (Medran
vs.
CA 83 Phil. 164)
2) When petitioner has been prevented from taking an
appeal by FAME.
A petition for relief has been held to be applicable to all
kinds of special proceedings, such as land registration,
intestate settlement, and guardianship proceedings
(Regalado, Remedial Law Compendium, Vol. 1, 9th ed.
p.
432)
Nature of the petition
It is a legal remedy whereby a party seeks to set aside a
judgment rendered against him by a court whenever he was
unjustly deprived of a hearing or was prevented from taking an
appeal because of fraud, accident, mistake or excusable neglect
(Quelnan vs. VHF Philippines GR 138500, Sept. 16, 2005)
A petition for relief from judgment is an equitable remedy that is
allowed only in exceptional cases when there is no other
available or adequate remedy. When a party has another
remedy available to him, which may be either a motion for new
trial or appeal from an adverse decision of the trial court, and
he was not prevented by fraud, accident, mistake or excusable
negligence from filing such motion or taking such appeal, he
cannot avail himself of this petition (Trust International Paper
Corporation vs. Pelaez GR 164871, August 26, 2006). Also, a
party who has filed motion for new trial but which was denied,
cannot file a petition for relief. These two remedies are said to be
exclusive of each other. The remedy is to appeal from the
judgment (Sec. 9 R 38, Francisco vs.
Puno 108 SCRA 427).
Q: What are the different remedies available to a defaulted
defendant granted by the rules?
A: The following:
• Upon service of the order of default but before judgment
upon default is rendered under Rule 9 you can file a
motion to set aside the order of default on the ground
that his failure to file answer was because of FAME;
• If there is already a default judgment, the correct
procedure is to file a motion for new trial under Rule 37
on the ground of FAME within the period to appeal,
meaning, before judgment becomes final and executory;
• If the judgment is already final and executory, the
remedy is to file a petition for relief from judgment
under Rule 38 on the ground of FAME.
So if you are a passenger ,who is a defaulted defendant, and you
want to ride on the bus, Rule 9 is first trip, Rule 37 is second
trip, Rule 38 is last trip.
Motion for New Trial (R 37) vs. Petition for Relief (R 38)
1. MNT is available before the judgment becomes final and
executory while the
PR is available after the judgment becomes final and
executory;
2. MNT applies to judgments and final orders only while
PR applies also to other proceedings;
3. The grounds for MNT are FAME and newly discovered
evidence while PR is grounded on FAME;
4. MNT is filed within the time to appeal while PR should
be filed within 60 days from knowledge of the
judgment and within 6 months from entry of judgment;
5. If MNT is denied, the order of denial is not appealable,
hence the remedy is appeal from judgment, while if PR
is denied, the order denying a petition for relief is also
not appealable but the appropriate remedy is the
appropriate civil action under R 65;
6. MNT is a legal remedy while
PR is an equitable remedy;
7. A motion for new trial need not be verified while PR
must be.
A party who has filed a timely motion for new trial and/or
reconsideration cannot file a petition for relief after his motion
has been denied. These remedies are exclusive of each other. It
is only in appropriate cases where a party aggrieved by the
judgment has not been able to file a motion for new trial and/or
reconsideration that a petition for relief can be filed. (Francisco
vs. Puno GR No. L55694, October 23, 1981).
Petition is available only to the parties
A petition for relief from judgment together with a motion for
new trial and a motion for reconsideration are remedies
available only to parties in the proceedings where the assailed
judgment is rendered. In fact, it has been held that a person
who was never a party to the case, or even summoned to appear
therein, cannot avail of a petition for relief from judgment
(Alaban vs. CA 470 SCRA 697).
Petition is available to proceedings after the judgment
A petition for relief is available not only against a judgment or
final order. Under Sec. 1 of Rule 38, it is also available when
“any other proceeding is thereafter, taken against the petitioner
in any court through fraud, accident, mistake, or excusable
negligence”. Thus, it was held that a petition for relief is also
applicable to a proceeding taken after the entry of judgment or
final order such as an order of execution (Cayetano vs.
Ceguerra, 13 SCRA 73).
Can you file a petition for relief not from a judgment but from an
order? Section 2:

Sec. 2. Petition for relief from denial of appeal.
When a judgment or final order is rendered
by any court in a case, and a party
thereto, by fraud, accident, mistake, or
excusable negligence, has been prevented
from taking an appeal, he may file a
petition in such court and in the same
case praying that the appeal be given due
course. (1a)
In most cases, or 95% of petition for relief, a party files a
petition for relief from the judgment rendered against him.
Actually that is not true. The remedy of petition for relief is not
only limited to judgments but the law says “orders, or other
proceedings.” That is very broad.
EXAMPLE: I lost the case and I filed an appeal and the appeal
was beyond 15 days. So, there will be an order denying my
appeal because my appeal should be within 15 days.
Q: And suppose such order prevented me from taking an appeal
because of FAME, can I file a petition for relief?
A: Yes, not from the judgment but from the order denying my
appeal on the ground of FAME. And the court will grant me
relief by allowing me to appeal. So there, I am not questioning
the judgment but I am only questioning the order not allowing
me to appeal.
But as I said, in most cases, petition for relief are based on
Section 1 rather than Section 2. Bihira yung petition for relief
from the order denying the appeal.
Is there a deadline in filing a petition for relief from judgment?
YES.
Section 3:
Sec. 3. Time for filing petition; contents and
verification. A petition provided for in either
of the preceding sections of this Rule must
be verified, filed within sixty (60) days
after the petitioner learns of the judgment,
final order, or other proceeding to be set
aside, and not more than six (6) months
after such judgment or final order was
entered, or such proceeding was taken; and
must be accompanied with affidavits
showing the fraud, accident, mistake, or
excusable negligence relied upon, and the
facts constituting the petitioner's good and
substantial cause of action or defense, as
the case may be. (3)
Q: When you file a petition for relief from judgment, or final
order, what are the formal requirements?
A: The formal requirements are:
a) The petition must be verified;
b) The petition for relief must be accompanied with
affidavits showing the FAME relied upon;
c) the affidavit of merit must also show the facts
constituting the petitioner’s good and substantial
cause of action or defense as the case may be.
Affidavit of merit is one which recites the nature and character
of FAME on which the motion is based.
It serves as the jurisdictional basis for the court to entertain a
petition for relief. However, it is not a fatal defect to warrant
denial of the petition so long as the facts required to be set out
also appear in the verified petition.
Instances when an affidavit of merit is not necessary
1. where there is no jurisdiction over the defendant;
2. where there is no jurisdiction over the subject matter;
3. where judgment is taken by default;
4. where judgment was entered by mistake or was
obtained by fraud; or
5. other similar cases.
Q: Now, does that requirement sound familiar again, that
there must be an affidavit showing the fame and the
petitioner’s substantial cause of action or defense?
A: Yes, that is the requirement under the motion for new trial,
affidavit of merits. Therefore, AFFIDAVIT OF MERITS which is a
requirement in Rule 37 is also a requirement in Rule 38. That is
the identical feature of new trial of fame and petition for relief.
Q: What will happen if a party files a petition for relief
without any affidavit of merits, or with a defective
affidavit?
A: The defect is FATAL and the petition will be denied outright
because of lack of affidavit merits. It is the affidavit of merits
which serves as the jurisdictional basis for the court to
entertain a petition for relief. (Fernandez vs. Tan Tiong Tick, L-
15877, April 28,
1961)
Q: When do you file a petition for relief?
A: Once the judgment complained of has become final and
executory because the remedy of new trial is lost. But it does not
mean that you can file your petition for relief anytime. There is
also a deadline.
Q: What is the DEADLINE?
A: Under Section 3, the petition must be filed within:
Within SIXTY (60) DAYS from the time the petitioner
learns of the judgment, order, or other proceedings to
be set aside, AND
Not more than SIX (6) MONTHS after such judgment or
final order was entered, or such proceeding was taken.
Q: What is the date of entry of judgment or final order?
A: It is the date of finality of judgment or final order (Rule 36,
Section 2). So, the date of entry is deemed to be the date of
finality.
So there are two (2) periods: 60 days and 6 months; and BOTH
periods must be complied with (Dirige vs. Biranya, L-22033,
July 30, 1966). Otherwise, if you fail to comply with the two
periods the petition for relief will be denied for being filed out of
time.
PROBLEM: There was a judgment rendered against me in June
1997 and it became final and there was entry of final judgment
in June 1997, meaning talo na ako last year pa. But I learned
about it only last week or seven days ago. Today is February
1998. So I asked my lawyer to file a petition for relief this week.
Q: Is the petition filed on time?

A: NO. It is filed out of time. It is true that I only learned about
it a week ago. But definitely, the filing is beyond 6 months from
the date of its entry which is June 1997. You complied with the
first period but you did not comply with second period. Both
periods must be complied.
PROBLEM: The judgment was entered against me last
December 1997, and there was entry of final judgment in
December 1997. I learned about it last December also; and now
March, 1998, I will file a petition for relief from judgment.
Q: Can I still file the petition for relief?
A: No more. Although it is within 6 months (December to March
is only 3 months) from date of entry BUT definitely, between
December to March is more than 60 days. So the petition can
no longer be filed. That is how you apply the two periods. Both
periods must be complied.
Q: Is the period for filing a petition for relief extendible?
A: The remedy allowed by Rule 38 is merely an act of grace or
benevolence intended to afford a litigant a penultimate
opportunity to protect his interest. Considering the nature of
such relief and of the purpose behind it, the periods fixed by
said rule are NON-EXTENDIBLE and is never interrupted; nor
can it be subject to any condition or contingency because it is
itself devised to meet a condition or contingency. (Smith, Bell &
Co. vs. Phil.
Milling Co., 57 O.G. 2701, April 10, 1961; Quijano vs. Tameta,
L16473, April 20, 1961)
Well, of course, petition for relief according to SC, is penultimate
remedy given by the law to a victim of FAME. Because, if you
are a victim of FAME, you lose the case because of that reason.
Somehow the law would like to help you lalo na pagna-default
ka.
O.K., you have Rule 9, file ka nang motion to lift order of
default. “Hindi ako nakahabol eh, may-judgment na.” O sige,
Rule 38 – petition for relief. But paglumampas ka dyan, sorry
na lang.
Meaning, the law cannot help you forever. The law can only help
you up to a certain period. If you still do not do anything about
it, pasensiya ka na.
Sec. 4. Order to file an answer. If the
petition is sufficient in form and substance
to justify relief, the court in which it is
filed, shall issue an order requiring the
adverse parties to answer the same within
fifteen (15) days from the receipt thereof.
The order shall be served in such manner
as the court may direct, together with
copies of the petition and the
accompanying affidavits. (4a)
This remedy precludes the issuance of summons upon its filing.
If the petition is sufficient in form and in substance, the court
shall issue an order requiring the advese parties to answer
within 15 days from receipt thereof.
Failure to file an answer does a declaration of default.
You file a petition for relief, the court will issue an order
requiring the other party to answer. It is like a complaint all
over again where you are given 15 days to answer. Meaning
sagutin mo “Would you agree that your opponent is a victim of
FAME?” In other words, do you agree or disagree? – yan ang
sagutin mo. “Do you agree that he has meritorious cause of
action (or defense)?” Meaning, you are given the right to oppose
the petition for relief.
Sec. 5. Preliminary injunction pending
proceedings. The court in which the
petition is filed, may grant such
preliminary injunction as may be
necessary for the preservation of the
rights of the parties, upon the filing by the
petitioner of a bond in favor of the adverse
party to answer for all damages and costs
that may be awarded to him by reason of
issuance of such injunction or the other
proceedings following the petition; but
such injunction shall not operate to
discharge or extinguish any lien which the
adverse party may have acquired upon the
property of the
petitioner. (5a)
Remember that a petition for relief is a remedy available after
the judgment or final order has become final and executory.
Hence the judgment could be the subject of a writ of execution.
There is nothing in the Rules that precludes the execution of the
judgment that is already executory upon proper application of
the prevailing party during the pendency of the petition. The
petitioner therefore, would be interested in the preservation of
the status quo as well as the preservation of the rights of the
parties before the petition is resolved. Hence, the petitioner may
avail of the remedy allowed him under Sec. 5 of Rule 38. Under
this provision, the court in which the petition is filed, may grant
such preliminary injunction to preserve the rights of the parties
upon the filing of a bond in favor of the adverse party. The bond
is conditioned upon the payment to the adverse party of all
damages and costs that may be awarded to such adverse party
by reason of the issuance of the injunction or the other
proceedings following the petition (Sec. 5 Rule 38).
Rule: Execution of judgment is not stayed unless a writ of
preliminary injunction is isuued by the court.
Preliminary injunction actually is a type of provisional remedy
which is governed by Rule 58. Injunction is to stop ba, to enjoin
somebody or stop the court from doing an act. That is the
essence of injunction.
Upon filing of the petition:
1) the court in which the petition is filed may grant such
preliminary injunction as may be necessary for the
preservation of the right of the parties, upon the filing
by the petitioner of a bond in favor of the adverse party.
2) Such injunction shall not discharge any lien which the
adverse party may have acquired upon the property of
the petitioner.
EXAMPLE: I lost in a case. The judgment became final and
executory because I did not make an appeal. However, I filed a
petition for relief. In the meantime, my opponent is asking the
court to execute the decision which is his right because the
judgment is already final and executory. In other words, I am
questioning the judgment of the court while siya naman, he is
asking the court to enforce the judgment.
Q: Now, what is my remedy to stop the enforcement of the
judgment?
A: Under Section 5, I can ask the court to issue a writ of
preliminary injunction to stop the enforcement of the judgment.
But I have to put up a BOND conditioned that in the event that
my petition for relief is not meritorious, I will pay for all the
damages that the other party will incur because of the delay in
the execution.
Sec. 6. Proceedings after answer is filed. After
the filing of the answer or the expiration of
the period therefor, the court shall hear
the petition and if after such hearing, it
finds that the allegations thereof are not
true, the petition shall be dismissed; but if
it finds said allegations to be true, it shall
set aside the judgment or final order or
other proceedings complained of upon
such terms as may be just. Thereafter the
case shall stand as if such judgment, final
order or other proceeding had never been
rendered, issued or taken. The court shall
then proceed to hear and determine the
case as if a timely motion for a new trial or
reconsideration had been
granted by it. (6a)
BAR QUESTION: When a petition for relief from judgment is
filed, what are the hearings that will be conducted by the court?
A: In proceedings for relief from judgment, there may be two (2)
hearings, to wit:
1) a hearing to determine whether the judgment or order
complained of should be set aside, and
2) if the decision thereon is in the affirmative, a hearing
on the merits of the principal case.
So, the FIRST HEARING is to determine whether the petition
should be granted or not – is the petition meritorious or not?
Was there FAME? Is there affidavit of merit? Is the affidavit
proper? Is the petition filed within the period allowed by the law
or not? Now, if the petition is denied that is the end of the story.
Wala na.
Now, if the petition for relief is granted, the judgment will be set
aside as if it never existed. Then we will now try the case all over
again as if a motion for new trial has been filed. That is the
second hearing. The SECOND HEARING is the trial on the
merits or a trial de novo.
Now, somebody was commenting, “Ito bang petition for relief
parang appeal din? Is this similar to appeal?” The answer is NO.
In the first place, there is no appeal here. Kaya nga the
judgment has become final and executory because there was no
appeal. Now, in an appeal, for example: Natalo ka sa kaso.
When you appeal and you win, the decision will be overturned.
From losing, you become the winner. That is the effect of
appeal.
But in petition for relief, you are not asking the court to change
its decision. When a petition for relief from judgment is granted,
the decision against you will be set aside as if it was never
rendered and we will try the case all over again. In a petition for
relief, the court has no power to change its decision because it
has already become final and executory. But its power under
Rule 38 is to set it aside as if it was never rendered and conduct
a new trial as if a motion for new trial has been filed. So please
do not confuse Rule 38 with the remedy of appeal.
Sec. 7. Procedure where the denial of an
appeal is set aside. Where the denial of an
appeal is set aside, the lower court shall be
required to give due course to the appeal
and to elevate the record of the appealed
case as if a timely and proper appeal had
been made.
(7a)
This is a continuation of Section 2 – what can be questioned in
Rule 38 is not only a judgment but also an order, such as an
order denying an appeal.
Q: Can I file a petition for relief from the denial of an appeal?
A: YES.
Q: And if my petition for relief from the order denying the appeal
is granted, what will happen?
A: According to Section 7, the court will now grant the appeal
and allow the appeal to proceed as if it was filed on time.
Meaning, the judgment will not be set aside but I will be given
the right to appeal if the failure to file an appeal as due to
FAME.
No petition for relief in the Supreme Court
Can petitioner avail of a petition for relief from judgment under
Rule 38 from a resolution of the SC denying his petition for
review?
The SC in Purcon vs. MRM Philippines, Inc. GR 182718,
September 26, 2008 answered the question in the negative. A
petition for relief from judgment is not an available remedy in
the SC. In summary the SC explained, thus:
“First, although Section 1 of Rule 38 states that when a
judgment or final order is entered through fraud, accident,
mistake or excusable negligence, a party in any court may file a
petition for relief from judgment, this rule must be interpreted
in harmony with Rule 56, which enumerates the original cases
cognizable by the Supreme Court, thus:
Section 1. Original cases cognizable. – Only petition for
certiorari, prohibition, mandamus, quo warranto, habeas
corpus, disciplinary proceedings against members of the
judiciary and attorneys, and cases affecting ambassadors, other
public ministers and consuls may be filed originally in the
Supreme Court.
“A petition for relief from judgment is not included in the list of
Rule 56 cases originally cognizable by the Court.
Second, while Rule 38 uses the phrase “any court,” it refers only
to the Munici[pal/Metropolitan and Regional Trial Courts.
As revised, Rule 38 radically departs from the previous rule as it
now allows the Metropolitan or Municipal Trial Court which
decided the case or issued the order to hear the petition for
relief. Under the old rule, a petition for relief from the judgment
or final order of Municipal Trial Courts should be filed with the
Regional Trial Court.
The procedural change in Rule 38 is in line with Rule 5,
prescribing uniform procedure for Municipal and Regional Trial
Courts and designation of Municipal/Metropolitan Trial Courts
as courts of record.
Third, the procedure in the CA and the Supreme Court are
governed by separate provisions of the Rules of Court. It may,
from time to time, be supplemented by additional rules
promulgated by the Supreme Court through resolutions or
circulars. As it stands, neither the Rules of Court nor the
Revised Internal Rules of the CA allows the remedy of petition
for relief in the CA.xxx”
Earlier, in Mesina vs. Meer 383 SCRA 625, the Court ruled that 1)
a petition for relief from judgment is not an available remedy in
the CA and the SC.
Remedies if Rule 38 is no longer available
2)
1) Petition for Annulment of Judgment under R 47; and
2) A direct or collateral attack if judgment is void ab initio
for lack of jurisdiction.
Note: Under AM No. 08-8-7 SC, otherwise known as the Rule
of Procedure for Small Claims Cases, a Motion for New Trial or
Reocnsideration (R 37), and a Peition for Relief from Judgment
(R 38) are prohibited pleadings.
Both remedies, likewise, are prohibited pleading under the Rule
on Summary Procedure.
The prevailing party is entitled to have the judgment
executed as a matter of right and the issuance of the
corresponding writ of execution becomes a ministerial
duty of the court (Rule 39);
The court rendering the judgment loses jurisdiction
over the case so that it can no longer correct the
judgment in substance, except to make corrections of
clerical errors and omissions plainly due to
inadvertence or negligence. (Locsin vs. Paredes, 63
Phil. 87; Manaois vs. Natividad, L13927, Feb. 28,
1960; Maramba vs. Lozano, L-21533,
June 29, 1967)
If after the judgment is rendered, you file a motion for
reconsideration or new trial, there is a possibility for
the court to change its mind and its judgment. But
once the judgment has become final, the court has no
more power to change its judgment substantially. The
error will also become final, you can no longer change
anything substantial.

EXCEPTION: There is one type of judgment which can

be changed substantially even long after it became
final as an exception to this rule. In the study of
Persons, Judgment for Support. The judgment for
support, which can be modified at any time because
the obligation to give support depends not only on the
resources of the obligor, but also on the ever-changing
needs of the
obligee. (Malabana vs. Abeto, 74 Phil. 13)

EXAMPLE: The father refuses to support his minor

child. After trial, the court orders the father to
support the child at P1,000 per month. Four years
later, the father is already well-off and the child is
already in nursery or kindergarten. So the child tells
his lawyer that the amount for support must be
increased from P1,000 to P5,000. The father says,
“the court said P1,000 and if you change that to
P5,000, that would be substantial.” The father is
wrong. The amount for support can be changed
anytime. In the same manner. The amount can also
be lowered, as when the father loses his job.

3) Res Adjudicata supervenes. (NLU vs. CIR, L-14975,

May
15, 1962)

The same cause of action between the same parties

can never be the subject matter of another litigation in
the future. Any subsequent case is barred by prior
judgment.

Rule 39 Q: Define execution.

A: EXECUTION is the remedy provided by law for the
EXECUTION, SATISFACTION AND EFFECT OF enforcement of a judgment. (21 Am. Jur. 18) It is the fruit and
JUDGMENTS the end of the suit and is very aptly called the life of the law
(PAL vs. Court of Appeals, 181 SCRA 557).
Rule 39 is on the subject of Execution, Satisfaction and Effect of
Judgments. This is the longest rule in the study of Civil It would be useless if there is judgment but you cannot enforce
Procedure. Take note that there are 48 Sections. Let us first the same.
review the fundamentals.
Q: Who will enforce the judgment?
Q: When the judgment becomes final and executory, what are
the effects?
A: The very same court which rendered the judgment.

A: The finality of a judgment produces three (3) effects, to wit:

Execution shall be applied for in the court of origin. If an appeal
has been duly perfected and finally resolved, the execution may
be applied for also in the court of origin on motion of the
judgment obligee. (Sec. 1) In filing a motion for execution of an
appealed judgment, there is no need to wait for the records of
the case to be remanded to the court of origin. All that is
required is for the appeal to have been duly perfected and finally
resolved before execution may be applied for (Borgonia vs.
Decano 317 SCRA 660). This is because when the judgment
obligee files a motion for execution in the court of origin, all he
has to do is to attach the certified true copies of (a) the
judgment of the appellate court, and (b) the entry of said
judgment (Sec. 1) even if the records have not as yet been
remanded to the court of origin. This procedure prevents
needless delays in the execution of the judgment.
If for whatever reason, the execution cannot be had with
dispatch in the court of origin, the new rules likewise afford the
judgment obligee a remedy. He may file a motion with the
appellate court to direct the court of origin, in the interest of
justice, to issue the writ of execution (Sec.1).
Writ of execujudicial a judicial writ issued to an officer
authorizing him to execute the judgment of the court.
Q: How is execution generally done?
A: It is generally done by filing a motion for execution by the
prevailing party and the court will then issue an order of
execution, which will be followed with a writ of execution, and
the sheriff will enforce the judgment.
In Lou vs. Siapno 335 SCRA 181, it was ruled that even in
judgments which are immediately executory, “there must be a
motion to that effect and a hearing called for the purpose.” Also,
“under Supreme Court Circular No. 24-94, a motion for the
issuance of a writ of execution must contain a notice to the
adverse party” (Pallada vs.
RTC of Kalibo, Aklan Br. 1 304 SCRA 440).
A motion for the issuance of a writ of execution shall contain a
notice to the adverse party. A motion which does not contain a
notice of hearing, of the time and place for the hearing of the
motion, as required by Secs. 4 and 5 of Rule 15 of the Rules of
Court, is a worthless piece of paper which the clerk has no right
to receive and which the court has no authority to act upon
(Pallada vs. RTC of Kalibo Aklaan, Br. 1, supra).
Because of the present phraseology of Sec. 1, rulings like those
made in De Mesa vs. CA 231 SCRA 773 to the effect that where
execution is a matter of right, the judgment debtor need not be
given an advanced notice of the application for execution nor be
afforded a prior hearing thereon, must necessarily be deemed
abandoned.
So, we file a motion in court after the judgment has become
final and executory.
Q: How can the court issue the order when it has already lost
jurisdiction over the case because from what we have learned
here is that, one of the effects of the finality of judgment is that
the court loses jurisdiction over the case. And when the court
loses jurisdiction, it can no longer act on the case. So, how can
it still issue orders in that case when actually, once the
judgment becomes final and executory, the trial court loses
jurisdiction over the case and it can no longer act in that case?
A: What is meant by that statement is that, the court can no
longer change the judgment. That is why new trial and
reconsideration is not anymore available in this stage. The
judgment is beyond the power of the court to change or alter.
BUT definitely the court can act on that case for the purpose of
enforcing its judgment because it is absurd to claim that a trial
court has the power to try and hear a case but once the
judgment has already become final, it has no more power to
enforce it. If you will really describe jurisdiction in its complete
aspect, we can say jurisdiction is “the power of the court to act
on the case, to try, to decide and to enforce its judgment.” That
would be more complete. Because enforcement is part of the
court's jurisdiction.
Q: Against whom shall the execution issue?
A: Generally, execution can issue only against a (losing) party to
the case and not against one who is a complete stranger
because majority of judgments are in personam. They are only
enforceable against the parties themselves or their successors-
in-interest – people who derive their rights from him. And a
judgement can never be enforced against a complete stranger
who never had his day in court. (Cruzcosa vs. Concepcion, 101
Phil. 146; Castañeda vs. De Leon, 55 O.G. 625, Jan. 26, 1959;
Bacolod vs. Enriquez, 55 O.G.
10545, Dec. 21, 1959)
Q: What portion in the decision is normally the subject of
execution?
A: It is the dispositive portion – the “WHEREFORE…” – that is
going to be enforced. (Robles vs. Timario, 58 O.G. 1507, Feb. 19,
1962).
Writ of execution must conform with judgment
The writ of execution must conform to the dispositive portion of
the decision to be executed and the execution is void if it is in
excess of and beyond the original judgment or award for it is a
settled general principle that a writ of execution must conform
strictly to every essential particulars of the judgment
promulgated (Ex-Bataan Veterans Security Agency, Inc. vs.
N:LRC 250 SCRA 418; Equatorial Realty Development Inc. vs.
Mayfair Theatre Inc. 332 SCRA 139; Banquerigo vs. CA GR
164633 August 7, 2006).
Thus, if the judgment does not provide for the payment of
interest, the writ of execution cannot modify the judgment by
requiring the judgment obligor to pay interest. That part of the
writ imposing interest is void (Solidbank Corp. vs. CA 379 SCRA
159).
Essential requisites of a writ of execution
1) It must conform strictly to the decision or judgment
which gives it life; and
2) it cannot vary the intent of the judgment it seeks to
enforce.
CLASSES OF EXECUTION
Q: What are the classes of execution under the law?
A: The following:
I. As to their nature:
1) COMPULSORY execution – known as Execution as
a Matter of Right (Section 1)
2) DISCRETIONARY execution – known as Execution
Pending Appeal (Section 2)
II. As to how it is enforced (Section 6):
1) EXECUTION BY MOTION
2) EXECUTION BY INDEPENDENT ACTION

COMPULSORY EXECUTION
(Execution as a matter of right)
EXECUTION AS A MATTER OF RIGHT;
FIRST INSTANCE: NO APPEAL, JUDGMENT BECOMES FINAL
Section 1. Execution upon judgments or final
orders. – Execution shall issue as a matter
of right, on motion, upon a judgment or
order that disposes of the action or
proceeding upon the expiration of the
period to appeal therefrom if no appeal has
been duly perfected.
If the appeal has been duly perfected and
finally resolved, the execution may
forthwith be applied for in the court of
origin, on motion of the judgment obligee,
submitting therewith certified true copies
of the judgment or judgments or final
order or orders sought to be enforced and
of the entry thereof, with notice to the
adverse party.
The appellate court may, on motion in the
same case, when the interest of justice so
requires, direct the court of origin to issue
the writ of examination.
Q: What are the conditions for compulsory execution?
A: The following are the conditions:
1) FIRST CONDITION: If a judgment has disposed already of
the action or proceeding then it can be executed ;
2) SECOND CONDITION: The period to appeal has expired
and no appeal has been filed/taken from the judgment.
Under the first condition, if a judgment has disposed already of
the action or proceeding then it can be executed because if the
judgment or order has not yet disposed of the action or
proceeding, that is called an interlocutory judgment or order.
One of the effects of finality of a judgment under Rule 36 is that
the prevailing party is entitled to have the judgment executed as
a matter of right. And it is the ministerial duty of the court to
execute its own judgment. So once the judgment has become
final, all that the winner or prevailing party has to do is to file
an action in court for execution, the court has to issue.
When the law says it is a matter of right upon a judgment or
order that disposes the action or proceeding, it means that after
the judgment was rendered, there is nothing more for the court
to do because its job is over. Therefore, if there is something
more that the court can do, as a rule, you cannot execute. That
is why conditional judgments, incomplete judgments cannot be
executed.
Under the second condition, we must wait for the period to
appeal to expire before we can move for execution. So, if the
period to appeal has not yet expired, then we cannot execute the
judgment.
Once a judgment becomes final and executory, the prevailing
party can have it executed as a matter of right, and the
issuance of a writ of execution becomes the ministerial duty of
the court (Buaya vs. Stronghold Insurance Co., Inc. 342 SCRA
576). Once a decision becomes final and executory, it is the
ministerial duty of the presiding judge to issue a writ of
execution except in certain cases, as when subsequent events
would render execution of judgment unjust (Mangahas vs.
Paredes GR 157866 February 14, 2007).
Judgments and orders become final and executory by operation
of law and not by judicial declaration. The trial court need not
even pronounce the finality of the order as the same becomes
final by operation of law (Testate of Maria Manuel Vda. De
Biascan 374 SCRA621). Its finality becomes a fact when the
reglementary period for appeal lapses, and no appeal is
perfected within such period (Vlason Enterprises vs. CAS 310
SCRA 26).
Q: May the court refuse to execute a judgment on the ground
that the judgement was wrong or erroneous?
A: NO, because it is a matter of and the issuance of the
corresponding writ of execution upon a final and executory
judgment is a ministerial duty of the court to execute which is
compellable by mandamus. (Ebero vs. Cañizares, 79 Phil. 152)
The principle is: No matter how erroneous a judgment may be,
so long as the lower court had jurisdiction over the parties and
the subject matter in litigation, (in short the judgment is valid),
the said judgment is enforceable by execution once it becomes
final and executory. The error also becomes final. If it is
erroneous, the remedy is to appeal, otherwise the error becomes
final as well.
In execution, if you are not careful, there are lawyers who are
very good in thwarting an execution where a series of
maneuvers are utilized - we can still be delayed by questioning
this and that and sometimes courts are unwitting accomplices.
That is why in the
1994 of
PELAYO vs. CA – 230 SCRA 606
HELD: “We have time and again ruled that courts should never
allow themselves to be a party to maneuvers intended to delay
the execution of final decisions. They must nip in the bud any
dilatory maneuver calculated to defeat or frustrate the ends of
justice, fair play and prompt implementation of final and
executory judgment. Litigation must end and terminate
sometime and somewhere, and it is essential to an effective
administration of justice that once a judgment has become
final, the winning party be not, through a mere subterfuge,
deprived of the fruits of the verdict. Courts must therefore guard
against any scheme calculated to bring about that result.
Constituted as they are to put an end to controversies,
courts should frown upon any attempt to prolong them.”
GENERAL RULE: Judgment is enforceable by execution
once it becomes final and executory.
EXCEPTIONS: (WOLFSON vs. DEL ROSARIO, 46 Phil. 41)
1) When there has been a change in the situation of the
parties, which makes the execution inequitable;
2) When it appears that the controversy has never been
submitted to the judgment of the court;
3) When the judgment was novated by subsequent
agreement of the parties;
4) When it appears that the writ of execution has been
improvidently issued;
5) When the writ of execution is defective in substance;
6) When the writ of execution is issued against the wrong
party; and
 7) When the judgment debt has been paid or otherwise
satisfied.
[1] WHEN THERE HAS BEEN A CHANGE IN THE SITUATION
OF THE
PARTIES WHICH MAKE THE EXECUTION INEQUITABLE
(Supervening Fact Doctrine)
One of the most important exceptions is the first one: When
there has been a change in the situation of the parties which
make the execution inequitable. Meaning, from the time na
nagkaroon ng final judgment up to the present, there has been
a change in the situation of the parties so that if we will
execute, the judgment becomes inequitable already. So, this is
just another way of saying that there has been a SUPERVENING
EVENT that happened which makes execution inequitable.
EXAMPLE: There was a case where A filed a case to eject B from
his property and B lost the case and there was a judgment
ordering him to vacate the property of A. But while the case was
going on, A mortgaged his property to the bank. In the
meantime, he failed to pay his loan and the bank foreclosed the
mortgage. So the property was sold at public auction. And at
the auction sale, B, the one occupying it, bought the property.
The owner now is B. But there is a final judgment ejecting him.
Now, shall we insist on the judgment ejecting B? No because B
is now the owner. The fact that B became the owner is a
supervening event.
PHIL. VETERANS BANK (PVB) vs. IAC – 178 SCRA 645
NOTE: There was a time before that the PVB was closed for 5 to
6 years because I think they have some problems. So the
Central Bank has to take over. The Central Bank has ordered to
stop the operation – placed under receivership, the Central
Bank will control. Now under the Central Bank Law, once the
Central Bank takes over the control of a private bank, all its
assets has to be preserved. No assets will be sold or disposed of.
FACTS: There was somebody who sued PVB, and PVB lost. So
there was a judgment which became final. And the winner
asked the court to execute. Practically, you have to levy on the
property of the bank. In the meantime, the PVB was placed
under receivership, where under the law, it cannot be disposed
of because it is under the control of the Central Bank.
ISSUE: Can the prevailing party insist on the enforcement of the
judgment and get and levy the property of the PVB?
HELD: NO. The placement of the bank under receivership is a
SUPERVENING EVENT. “Once a decision has become final and
executory, it is the ministerial duty of the court to order its
execution, admits certain exceptions. The fact that petitioner is
placed under receivership is a supervening event that renders a
judgment notwithstanding its finality unenforceable by
attachment or execution.”
SAMPAGUITA GARMENTS CORP. vs. NLRC – 233 SCRA 260
FACT: An employee was terminated by his employer on the
ground of theft. He stole company property. The management
filed also a case of theft against the employee. But in the
meantime the employee also filed a labor case against the
employer for illegal dismissal and prayed for reinstatement with
back wages. After hearing, the NLRC ruled that there was illegal
termination and ordered the reinstatement of the employee and
payment of backwages. The NLRC decision became final. In the
meantime, the accused was convicted in the criminal case for
theft and ordered to go to prison.
ISSUE: What happens now to the final judgment of the NLRC
reinstating the employee?
HELD: “An employee’s conviction for theft, which was affirmed
by the RTC and the CA, is a SUPERVENING CAUSE that
renders unjust and inequitable the NLRC decision mandating
the employee’s
reinstatement with backwages.”
Take note however that for the supervening event to apply, the
supervening event must happen after the judgment has become
final and executory. Not that the supervening event happened
while the case was going on. If the case is going on and
something happened which you believe would make the
decision against you unfair, your duty is to bring it to the
attention of the court so that the court deciding the case would
take that into consideration. In
the case of
VALENZONA vs. CA – 226 SCRA 36
HELD: “While the rule is that a stay of execution of a final
judgment may be authorized if necessary to accomplish the
ends of justice, as for instance, where there has been a change
in the situation of the parties which makes such execution
inequitable, nevertheless the said rule cannot be invoked when
the supposed change in the circumstances of the parties took
place while the case was pending, for the reason that there was
then no excuse for not bringing to the attention of the court the
fact or circumstance that affects the outcome of the case.”
The ruling in VALENZOLA was reiterated in
ABOITIZ vs. TRAJANO – 278 SCRA 387 [1997]
HELD: “We are of course well aware of the rule authorizing the
court to modify or alter a judgment even after the same has
become executory, whenever circumstances transpire
rendering its execution unjust and inequitable. However, this
rule, we must emphasize, applies only to cases where the facts
or circumstances authorizing such modification or alteration
transpired after the judgment has become final executory.”
[3] WHEN THE JUDGMENT WAS NOVATED BY
SUBSEQUENT AGREEMENT.
QUESTION: Can the parties enter into a compromise agreement
when there is already a decision?
ANSWER: YES. Compromise agreement is welcome anytime –
before the case is filed, while the case is going on, while the case
is on appeal.
Q: Now suppose there is a decision in my favor against you and
then you approach me and say, “Pwede ba pag-usapan na lang
natin ito?” “Sige okay.” Then we arrive at another agreement
which we signed, where the agreement is different from the
decision in my favor. Can it be done?
A: Yes, I can waive my rights under the judgment. There is now
a new agreement between us.
Q: Can I execute on the original judgment?
A: No more, because the new agreement novated the judgment.
Take note that in case of novation, the new obligation must be
totally incompatible with the first obligation.
A related question:
Q: Can one court by injunction or restraining order stop the
execution of a judgment of another court?
A: GENERAL RULE: NO, because that will amount to
interference. EXCEPTIONS: (when the enforcement of a final
judgment may be
stopped by way of injunction)
1.) Rule 38, Section 5:
Rule 38, Section 5: Preliminary injunction
pending proceedings. – The court in which
the petition is filed, may grant such
preliminary injunction as may be
necessary for the preservation of the rights
of the parties, upon the filing by the
petitioner of a bond in favor of the adverse
party, conditioned that if the petition is
dismissed or the petitioner fails on the
trial of the case upon the merits, he will
pay the adverse party all damages and
costs that may be awarded to him by
reason of the issuance of such injunction
or the other proceedings following the
petition; but such injunction shall not
operate to discharge or extinguish any lien
which the adverse party may have acquired
upon the property of the petitioner.
In effect, there is a final and executory judgment but
the court will issue an injunction to stop this
enforcement because of the pendency of a petition for
relief from judgment.
2.) When there is an action for annulment of judgment of
the RTC filed in the CA.
The CA may issue a writ of preliminary
injunction – annulment of judgment,
certiorari, or prohibition cases where the CA
will issue a preliminary injunction to stop the
RTC from enforcing its judgment pending the
resolution of whether its judgment was
rendered in excess or without jurisdiction-
annulment of judgement, certiorari, or
prohibition cases where the CA will issue a
preliminary injunction to stop the RTC from
enforcing its judgement pending the
resolution of whether its judgement was
rendered in excess or without jurisdiction.
So, those are the exceptions.
EXECUTION AS A MATTER OF RIGHT;
SECOND INSTANCE: CA AFFIRMS THE RTC JUDGMENT
Q: Is there any other instances where a judgement maybe
executed as a matter of right?
A: YES, when the losing party appealed the RTC decision to the
CA and the CA affirmed the decision of the RTC. Kung may
appeal, the judgment is not final, you cannot execute. The case
is now in the CA, the CA decided in your favor, the RTC
judgment was affirmed and the CA decision has also become
final and executory. So you can now execute.
Q: How do you execute in that situation?
A: That is now covered by the second and third paragraphs of
Section 1:
If the appeal has been duly perfected and
finally resolved, the execution may
forthwith be applied for in the court of
origin, on motion of the judgment obligee,
submitting therewith certified true copies
of the judgment or judgments or final
order or orders sought to be enforced and
of the entry thereof, with notice to the
adverse party.
The appellate court may, on motion in the
same case, when the interest of justice so
requires, direct the court of origin to issue
the writ of execution.
Now the usual procedure no, when you win in the RTC and the
losing party appeals, the records of the case will be brought to
the CA. Later, there will be a CA decision: The judgment of the
RTC of Davao City is affirmed in toto. Now you have to wait for
the CA judgment to become final because that may be appealed
further to the SC. If the judgment becomes final, the clerk of
court will make an entry of final judgment of the CA decision.
Normally after that, the records from the CA will be returned to
Davao. It will be sent back to the court of origin. Once the
record is back, the RTC is supposed to tell you, the records are
here. That is the time you file a motion for execution. You will
file it in the RTC.
But sometimes, it takes months for the CA to return the
records. That is the trouble with the CA. It takes them several
months, when the case is appealed, before they tell you that the
record is here.
In the PRESENT rules, this is taken from the SC Circular 24-94
which took effect in 1994, hindi na kailangan hintayin ang
records na bumalik dito. Just get a certified copy of the CA
decision, get a copy of the entry of final judgment of the CA. You
just attach a copy of the CA judgment and a certificate from the
CA clerk of court that it is already final and executory -
meaning, that there is already entry of final judgment. This is
much faster than waiting for the records to be returned.
The first paragraph in Section 1 normally deals with judgment
usually becoming final and executory in the RTC. The rest of the
paragraph deals with appeal which affirmed the decision of the
RTC. So that is the procedure for execution – both cases,
execution is a matter of right because judgment is final and
executory.
The alternative which is the last paragraph, in the interest of
justice, you can file also your motion for execution in the CA
and the CA will direct the RTC to issue the writ of execution.
EXECUTION AS A MATTER OF RIGHT;
THIRD INSTANCE: CASES UNDER SECTION 4
Q: Is there another instance when execution becomes a matter
of right?
A: This is the third instance found in Section 4:

Sec. 4. Judgments not stayed by appeal. -
Judgments in action for injunction,
receivership, accounting and support, and
such other judgments as are now or may
hereafter be declared to be immediately
executory, shall be enforceable after their
rendition and shall not be stayed by an
appeal taken therefrom, unless otherwise
ordered by the trial court. On appeal
therefrom, the appellate court in its
discretion may make an order suspending,
modifying, restoring or granting the
injunction, receivership, accounting, or
award of support.
The stay of execution shall be upon such
terms as to bond or otherwise as may be
considered proper for the security or
protection of the rights of the adverse
party.
(4a)
GENERAL RULE: If there is an appeal, the judgment will be
stayed.
EXCEPTIONS (Under Section 4): Judgments in actions for
injunction, receivership, accounting, support, judgment declared
to be immediately executory.
So, actions for injunction, receivership, accounting, support. So
for example: there’s an injunction from the court: “The
defendant is enjoined from trespassing on plaintiff’s land.” Then
you appealed. So, the decision is not final. Now, if the judgment
is not yet final, what will you do in the meantime. So, you’ll say;
“I’ll just continue to trespass because anyway the judgment is
not yet final.” Ah hindi yan pwede. Even if the judgment is not
yet final, even if it is on appeal, you have to honor the
injunction. So, in effect, it is a matter of right.
Example: An order directing you to render an accounting. Take
the case of recovery of possession of land with accounting of the
income that you received. After trial, “Okey, Defendant, you turn
over the possession of the property to the plaintiff and you render
an accounting.” Appeal ka. Pag appeal mo, there must be an
accounting in the meantime.
So, if there is a judgment for an action for support, you must
comply with the judgment even before it becomes final. So, the
amendment now includes support and this phrase, “such other
judgments as are now or may hereafter be declared to be
immediately executory.” Any judgment which is declared by law
to be immediately executory has to be enforced even before it
becomes final and executory even if there is an appeal.
Q: Give an example of a law which declares a judgement to be
immediately executory?
A: The best example would be the Summary Procedure – where
a decision of the MTC in a civil case is appealed to the RTC, the
decision of the RTC is immediately executory even if we go to the
CA. It has to be executed unless the appellate court will stop the
execution in the meantime.
EXECUTION AS A MATTER OF RIGHT;
FOURTH INSTANCE: FORCIBLE ENTRY AND
UNLAWFUL
DETAINER CASES
Q: Is there another instance when execution becomes a matter
of right?
A: YES, under Rule 70 – a judgment of the MTC in a forcible
entry or unlawful detainer case is immediately executory (i.e.
subject to immediate execution) even if it is not yet final and
executory.
TO SUMMARIZE:
Q: When is execution a matter of right?
A: In the following:
1) Section 1, paragraph 1 – no appeal; judgment becomes
final;
2) Section 1, paragraph 2 – there is an appeal; once the CA
judgment becomes final;
3) Section 4 – Judgment in an action for injunction,
receivership, accounting, support, judgment declared to
be immediately executory; and
4) Rule 70 – Judgments in Forcible Entry and Unlawful
Detainer cases.
DISCRETIONARY EXECUTION
(Execution pending appeal)
Section 2. Discretionary execution. –
(a) Execution of a judgment or final order pending
appeal. – On motion of the prevailing party
with notice to the adverse party filed in
the trial court while it has jurisdiction
over the case and is in the possession of
either the original record or the record on
appeal, as the case may be, at the time of
the filing of such motion, said court may,
in its discretion, order the execution of a
judgment or final order even before the
expiration of the period to appeal.
After the trial court has lost jurisdiction,
the motion for execution pending appeal
may be filed in the appellate court.
Discretionary execution may only issue
upon good reasons to be stated in a special
order after due hearing.
(b) Execution of several, separate or partial
judgments. - A several, separate or partial
judgment may be executed under the same
terms and conditions as execution of a
judgment or final order pending appeal.
We’ll now go to the second type of execution - discretionary or
execution pending appeal. Discretionary, meaning, the court
may or may not order the execution.
Here, the prevailing party files a motion for
execution within the 15 days period. So in other
words, the judgment is not yet final and
executory, normally, within the period to appeal.
Q: Normally, can you file a motion for execution
within the period to appeal?
A: As a rule, you cannot because it is not yet final.
But by EXCEPTION, Section 2 allows you, provided,
according to the last paragraph, discretionary
execution may only issue upon ‘good reason’ to be
stated in the special order after due hearing.
Q: Therefore, what are the requisites for discretionary
execution?
A: The following are the requisites for discretionary execution:
1) There must be a motion filed by the prevailing party
with notice to the adverse party;
2) There must be a hearing of the motion;
3) There must be good reasons to justify the discretionary
execution; and
4) The good reasons to execute must be stated in a special
order after due hearing (Mancenido vs. CA 330 SCRA
419; Geolistics Inc. vs. Cateway Electronics, GR
174256-57, March 25, 2009).
Why discretionary? Because the court may or may not grant the
execution depending on whether there is a good reason or no
good reason. Unlike in Section 1, when the judgment has
become final and executory, you do not have to cite any good
reason. The only reason for the execution is that the judgment
becomes final and executory. But in the case of execution
pending appeal, you must justify it – the party must convince
the court to grant the execution. And remember according to
the SC, execution under Section 2 is not the general rule, that is
the exception.
“The requirement of good reason is important and must not be
overlooked, because if the judgment is executed and, on appeal,
the same is reversed, although there are provisions for
restitution, oftentimes damages may arise which cannot be fully
compensated. Accordingly, execution should be granted only
when these considerations are clearly outweighed by superior
circumstances demanding urgency, and the above provision
requires a statement of those circumstances as a security for
their existence.” (City of
Bacolod vs. Enriquez, 101 Phil. 644)
It is even a misnomer – execution pending appeal. For all you
know, the losing party may or may not appeal. It is actually
called execution pending appeal because you are filing the
motion within the period to appeal.
Q: What will happen if there are no good reasons?
A: The writ of execution is void because it does not state why you
are executing a judgment. (AFWU vs. Estipona, L-17934, Dec.
28, 1961) And remember that execution pending appeal is the
exception rather than the rule. And there is a possibility that
the judgment in your favor will be reversed on appeal.
Q: Suppose we will execute the judgment pending appeal and
the appeal will proceed then it will be reversed, what will
happen then?
A: If that happens, then there is Section 5 – eh di, magsaulian
tayo if it is reversed totally, partially, or annulled on appeal or
otherwise. There will be MUTUAL RESTITUTION. That is the
remedy under Section 5. But the trouble is ang hirap man ng
saulian, eh. There could not be a 100% perfect restitution. That
is the same asking the question, how can you unscramble an
unscrambled egg?
This is one reason why execution pending appeal is not favored.
Section 5. Effect of reversal of executed
judgment. - Where the executed judgment
is reversed totally or partially, or
annulled, on appeal or otherwise, the trial
court, may, on motion, issue such orders
and justice may
warrant under the circumstances (5a)
Q: Give examples of GOOD REASONS which would justify
execution pending appeal.
A: Following are example of good reasons:
1) When there is danger of the judgment becoming
INEFFECTUAL. (Scottish Union vs. Macadaeg, 91 Phil.
891);
In this case of MACADAEG, the plaintiff sued a foreign
corporation doing business in the Philippines. So it
has assets no? The plaintiff sued the foreign company
and he won, there was award, but hindi pa final. In
the meantime, plaintiff learned the foreign company is
going to stop completely its business in the Philippines
and they are going to send back all their assets
abroad. Sabi ng na plaintiff: “Aba delikado ako.
Suppose after the appeal, I still win and I will start
running after the defendant na wala naman dito. It has
no more office, no operations, no assets; but in the
meantime meron pa”? So the plaintiff filed a motion for
execution pending appeal. If we will wait for the
judgment to become final, by that time the judgment
will become ineffectual.
2) OLD AGE; There was a case an old woman files a case
against somebody to recover her land from the
defendant which the latter has deprived her of the
property for years. The defendant enjoyed the property
and the fruits. After years of litigation she won, she
was about 80. And then mag-aappeal pa yong kalaban.
The old woman filed a motion in court asking for
immediate execution even if the judgment is not yet
final on the argument that “I have been deprived for
years of the possession and of the property; and there
is a probable appeal which may take another couple of
years. By the time I win the case on appeal, I may
already be dead. I have not enjoyed the property and
the fruits.” The SC said, all right that is a good reason.
3) Where the appeal is for the purpose of DELAY;
Q: How about the argument that the intended appeal
is dilatory? It is only intended to prolong the supposed
execution and therefore the losing party has a chance
to win the appeal. Is that a good ground for execution
pending appeal ?
A: In the old case of PRESBITERO vs. RODAS (73 Phil.
300) and JAVELLANA vs. QUERUBIN (July 30, 1966)
the SC said that, that is a good reason – when the
appeal is interposed for delay.
However, in the case of AQUINO vs. SANTIAGO (161
SCRA 570) the SC said that it is not a ground because
it is as if the trial court is already acting like the CA. It
is only the CA which has the power to claim that the
appeal is without merit. That’s another reasoning.
But in the case of HOME INSURANCE CO. vs. CA (184
SCRA 318), the SC ruled that, that would be a good
reason again specially that there are many factors to
show the inequity of not executing the judgment
immediately (if coupled with other reason). That’s why
in
the case of
 HOME INSURANCE CO. vs. CA – 184 SCRA 318
HELD: “A good and sufficient reason upon which to
issue execution of the judgment pending appeal is
when the appeal is being taken for the purpose of
delay. While it is true that it is not for the trial court to
say that the appeal may not prosper or that it is
frivolous [so, the SC is aware of these
pronouncements], there are circumstances which may
serve as cogent bases for arriving at such a
conclusion.” Dean I: An example where the trial court
maybe justified in saying that the appeal is dilatory is
in default judgements where there is no evidence for
the defendant. And then the defendant appeals. Now
what is the chance of reversal when all the evidence is
for the plaintiff? The possibility that the judgment will
be reversed is almost zero (0). Therefore the court can
rule that the appeal is dilatory and then order the
execution of the judgment pending appeal upon
motion of the plaintiff.
The SC continues: “Another vital factor which led trial
court to allow execution pending appeal was the
pendency of the case for more than 17 years so that
the purchasing power of the peso has undeniably
declined.
Petitioner should be given relief before it is too late.”
Where the sole reason given by the trial court in disallowing an
appeal is that the appeal is frivolous and dilatory, execution
pending appeal cannot be justified because the authority to
disapprove an appeal pertains to the appellate court
(International School, Inc. Manila vs. Court of Appeals, 309
SCRA 474) Mere allegation that the appeal is dilatory is not a
good reason to merit discretionary execution (Intramuros Tennis
Club, Inc. vs. CA 341 SCRA 90).
In Sangkay vs. NPC GR 141447 May 4, 2006, the Court stressed
that the trial court is not justified to order the execution
pending appeal, on its assertion that the appeal of the
respondent is a dilatory tactic. It is not for the trial judge to
determine of a decision he rendered as this is the role of the
appellate court. Hence, it is not within the competence of the
trial court, in resolving a motion for execution pending appeal,
to rule that the appeal is patently dilatory and rely on the same
as basis for finding good reasons to grant the motion. Only an
appellate court can appreciate the dilatory intent of an appeal
as an additional good reason in upholding an order for
execution pending appeal.
4) Financial distress is also not in itself a good reason to
justify execution pending appeal (Intraamuros Tennis
Club, Inc. vs. CA, supra)
PB COM. vs. CA – 279 SCRA 364 [Sept. 23, 1997]
HELD: “It is significant to stress that private
respondent Falcon is a juridical entity and not a
natural person. Even assuming that it was indeed in
financial distress and on the verge of facing civil or
even criminal suits, the immediate execution of a
judgment in its favor pending appeal cannot be
justified as Falcon's situation may not be likened to a
case of a natural person who may be ill or
may be of advanced age.”
“Even the danger of extinction of the corporation will
not per se justify a discretionary execution unless
there are showings of other good reasons, such as for
instance, impending insolvency of the adverse party or
the appeal being patently dilatory. Hence, it is not
within competence of the trial court, in resolving a
motion for execution pending appeal, to rule that the
appeal is patently dilatory and rely on the same as its
basis for finding good reason to grant the motion. Only
an appellate court can appreciate the dilatory intent of
an appeal as an additional good reason in upholding
an order for execution pending appeal which may have
been issued by the trial court for other good reasons,
or in cases where the motion for execution pending
appeal is filed with the appellate court in accordance
with Section 2, paragraph (a), Rule 39 of the 1997
Rules of
Court.”
5) When the successful party files a BOND;
Q: Here is a controversial question: How about an
instance when the winning party offers to put up a
bond.
He says; “Alright, I am asking for an order pending
appeal. I will put up a bond to answer for any damages
that the defendant may suffer in the event that he wins
the appeal.”
A: In the old case of HACIENDA NAVARRA vs.
LABRADOR (65 Phil 635), the SC simply implied that
there is a good ground. HOWEVER, the SC denied that
implication in later cases. Among which were the cases
of ROXAS vs. CA (157 SCRA 370) and PNB vs. PUNO,
(170 SCRA 229) and PHOTOQUICK INC. vs. LAPENA,
JR. (195 SCRA 66).
PNB vs. PUNO – 170 SCRA 229
HELD: “The mere filing of a bond would not entitle the
prevailing party to an execution pending appeal.
Whatever doubts may have been generated by early
decisions involving this matter, starting with Hacienda
Navarra, Inc. vs. Labrador, et al., have been clarified in
Roxas vs. Court of Appeals, et al.”
“To consider the mere posting of a bond a ‘good reason’
would precisely make immediate execution of a
judgment pending appeal ROUTINARY, the rule rather
than the exception. Judgments would be executed
immediately, as a matter of course, once rendered, if
all that the prevailing party needed to do was to post a
bond to answer for the damages that might result
therefrom. This is a situation, to repeat, neither
contemplated nor intended by law.”
So, we might say that the posting of a bond would be
an ADDITIONAL GOOD REASON but it is NOT BY
ITSELF a good reason. So, the case of HACIENDA
NAVARRA VS.
LABRADOR has been misinterpreted.
The second paragraph of Section 2 [a]:
After the trial court has lost jurisdiction,
the motion for execution pending appeal
may be filed in the appellate court.
Q: Where can you file your motion for execution pending
appeal?
A: It DEPENDS:
 1) TRIAL COURT - while it has jurisdiction over the case
and the court is still in possession of the records of the
case.
Meaning:
a) the judgment has not yet become final - it is still
within the 15 day period, and
b) the court still is in possession of the records of the
case.
2) APPELLATE COURT – after the trial court has already
lost jurisdiction, the motion for execution pending
appeal may already be filed in the appellate court.
So, if the RTC has no more jurisdiction, then doon ka na mag-
file ng motion sa CA.
Q: When will the court lose jurisdiction over the case ?
A: With regard to execution pending appeal, you can correlate
this with RULE 41, SECTION 9 , to wit:
Rule 41, Section 9. Perfection of appeal;
effect thereof. - A party’s appeal by notice of
appeal is deemed perfected as to him upon
the filing of the notice of appeal in due
time.
A party’s appeal by record on appeal is
deemed perfected as to his with respect to
the subject matter thereof upon approval
of the record of appeal filed in due time.
In appeals by notice of appeal, the court
loses jurisdiction over the case upon the
perfection of the appeals filed in due time
and the expiration of the time to appeal of
the other parties.
In appeals by record on appeal, the court
loses jurisdiction only over the subject
matter thereof upon the approval of the
records on appeal filed in due time and the
expiration of the time to appeal of the
other parties.
In either case, prior to the transmittal of
the original record of the record on appeal,
the court may issue orders for the
protection and preservation of the rights
of the parties which do not involve any
matter litigated by the appeal, approve
compromises, permit appeals of indigent
litigants, order execution pending appeal
in accordance with Section 2 of Rule 39,
and allow withdrawal of the appeal. (9a)
The phrase “order execution pending appeal in accordance with
Section 2 of Rule 39” was not there in the Old Rules. Now, that
has been added and it jives with Section 2 paragraph (a). Now,
for as long as the motion is filed, before the court loses
jurisdiction and provided that the records are still with the trial
court , even if the appeal is subsequently perfected, it can still
act on the motion for execution pending appeal.
Now, let us go back to Section 2, Rule 39 on execution of
several, separate or partial judgments – meaning, there are
several judgments arising from the same case:
Rule 39, Section 2 [b]:
b) Execution of several, separate or partial
judgments. - A several, separate or partial
judgment may be executed under the same
terms and conditions as execution of a
judgment or final order pending appeal.
(2a)
Let us correlate this provision with Rule 36, Sections 4 and 5
AND Rule 37, section 8:
RULE 36, Sec. 4. Several judgments. - In an
action against several defendants, the
court may, when a several judgment is
proper, render judgment against one or
more of them, leaving the action to
proceed against
the others. (4)
RULE 36, Sec. 5. Separate judgments. -
When more than one claim for relief is
presented in an action, the court, at any
stage, upon a determination of the issues
material to a particular claim and all
counterclaims arising out of the
transaction or occurrence which is the
subject matter of the claim, may render a
separate judgment disposing of such
claim. The judgment shall terminate the
action with respect to the claim so
disposed of and the action shall proceed as
to the remaining claims. In case a separate
judgment is rendered, the court by order
may stay its enforcement until the
rendition of a subsequent judgment or
judgments and may prescribe such
conditions as may be necessary to secure
the benefit thereof to the party in whose
favor the judgment is rendered. (5a)
RULE 37, Sec. 8. Effect of order for partial
new trial. - When less than all of the issues
are ordered retried, the court may either
enter a judgment or final order as to the
rest, or stay the enforcement of such
judgment or final order until after the
new trial. (7a)
Q: Can there be two or more judgments arising out of one case?
A: YES. (Rule 36, Sections 4 and 5)
Q: Can the first judgment be immediately executed while
waiting for rendition of the second judgment?
A: Generally, the court will decide. If the court agrees, there has
to be a good reason.
There is one interesting case on execution pending appeal – the
case of
RCPI vs. LANTIN – 134 SCRA 395
FACTS: The case of Lantin was an action for damages. The
court awarded the plaintiff said damages. So, the plaintiff
moved for discretionary execution.
ISSUE: Whether or not execution pending appeal is proper in a
judgment for damages.
HELD: The execution pending appeal may be proper for
enforcing the collection of ACTUAL DAMAGES, but it is not
proper to enforce the payment of moral or exemplary damages.
So, this is where the SC distinguished.
Why is it that execution pending appeal is proper for the
collection of actual damages? In actual or compensatory
damages, the amount is certain. Normally, there are receipts.
The amount is based on evidence.
But the award for moral or exemplary damages is uncertain
and indefinite. It is based on abstract factors like sleepless
nights, besmirched reputation. It is hard to quantify it based on
evidence.
The SC said, in many cases the trial court awards a huge
amount for exemplary damages but on appeal, the CA refused
to award or totally eliminate the award. So, if the award of
moral or exemplary damages is not certain or fixed, the
execution pending appeal may not be proper to enforce its
execution.
Sec. 3. Stay of discretionary execution. -
Discretionary execution issued under the
preceding section may be stayed upon
approval by the proper court of a
sufficient supersedeas bond filed by the
party against whom it is directed,
conditioned upon the performance of the
judgment or order allowed to be executed
in case it shall be finally sustained in
whole or in part. The bond thus given may
be proceeded against on motion with
notice to the surety. (3a)
Q: Now, assuming that there is an execution pending appeal in
favor of the plaintiff under Section 2 and I am the defendant, is
there a way for me to stop the execution pending appeal?
A: Your remedy is to apply Section 3. The defendant will now
ask the court to fix a supersedeas bond to stop the execution
pending appeal. The bond will answer for any damages that the
plaintiff may suffer if the defendant’s appeal is not meritorious.
And once the supersedeas bond is filed, the court has to
withdraw the execution pending appeal. Supersedeas bond
under Section 3 is conditioned upon the performance of the
judgment or order allowed to be executed in case it shall be
finally sustained in whole or in part.
GENERAL RULE: When a defendant puts up a supersedeas
bond, the court shall recall the execution pending appeal
because discretionary execution is the exception rather than the
general rule.
EXCEPTION: Notwithstanding the filing of the supersedeas
bond by the appellant, execution pending appeal may still be
granted by the court IF THERE ARE SPECIAL AND
COMPELLING REASONS justifying the same outweighing the
security offered by the supersedeas
bond. (De Leon vs. Soriano, 95 Phil. 806)
EXAMPLE OF EXCEPTION: Judgment for SUPPORT. The same
may be executed pending appeal even notwithstanding the filing
of a supersedeas bond by the appellant. (De Leon vs. Soriano,
95 Phil. 806) Support is something which should not be
delayed. What is the use of the supersedeas bond when the
need of the plaintiff is today and not 5 or 6 weeks from now?
Alright, let us go to the next important classification of
execution. The other classification as to the manner of
enforcement could be by MOTION or by INDEPENDENT
ACTION.
EXECUTION BY MOTION
EXECUTION BY INDEPENDENT ACTION
Sec. 6. Execution by motion or by independent
action. - A final and executory judgment or order
may be executed on motion within five (5) years
from the date of its entry. After the lapse of
such time, and before it is barred by the statute
of limitations, a judgment may be enforced by
action. The revived judgment may also be
enforced by motion within five (5) years from
the date of its entry and thereafter by action
before it is barred by the statute of limitations.
(6a)
Q: How do you execute a judgment?
A: You file a motion for execution before the same court which
rendered the judgment.
Q: How is the execution enforced?
A: There are two 2 modes under Section 6:
1) Execution by motion – within five (5) years from the
date of its entry; and
2) Execution by independent action if the five year period
to execute by motion has elapsed with no motion
having been filed and before it is barred by the statute
of limitations..
Execution BY MOTION means that the prevailing party shall
ask the court to issue a writ of execution by simply filing a motion
in the same case.
EXAMPLE: I am the plaintiff and I have a judgment here against
the defendant. I do not know of any assets of the defendant
because the defendant for the meantime is as poor as a rat. But
after a certain period of time he becomes a wealthy man. All I
have to do is to file a motion and the court will order the
execution, provided the motion is filed within 5 years from the
date of the entry of judgment. The date of the entry of judgment
and the date of finality are the same (Rule 36, Section 2).
Lifetime of a writ of execution
The writ shall continue in effect during the period within which
the judgment may be enforced by motion (Sec. 14). Hence, the
writ is enforceable within the five-year period from entry of
judgment as provided for in Sec. 6 because within that period,
the writ may be enforced by motion. This is an amendment to
the old rule (Sec. 11 R 39) which provided that the lifetime of
the writ was 60 days from the receipt of the writ by the officer
required to enforce it.
Q: Suppose the defendant becomes rich after 5 years, can I still
file a motion to execute?
A: No more, because execution by motion must be filed within 5
years only from the date of its entry. If the judgment was not
executed within the 5-year period, the judgment has become
dormant.
A writ of execution issued by motion of the prevailing party after
five (5) years from the date of entry of the judgment is null and
void. There is then a need for the prevailing party to file an
independent action for the revival of the judgment before the
action is barred by the statute of limitations (Tag Fibers, Inc. vs.
NLRC 344 SCRA 29; Terry vs. People 314 SCRA 669).
It was held that if the writ of execution was issued and the levy
made within five years from the entry of the judgment, the
auction sale may be made even after the five-year period. The
sale of the property and the application of the proceeds are
merely the means to carry out the writ of execution and a levy
already validly made. Accordingly, the levy is the essential act
by which the property is set apart for the satisfaction of the
judgment (Gov’t. vs Echaus 71 Phil. 318; Quiambao vs. Manila
Motor Co., 3 SCRA 444). The sale must however, be made
within ten years during which the judgment can be enforced
(Ansaldo vs. Fidelity & Surety Company, 84 Phil. 547; Jalandoni
vs. PNB 108 SCRA 102).
Q: What is a dormant judgment?
A: A DORMANT judgment is one that was not executed within 5
years.
Revival of Judgment
Q: So, how can that (dormant) judgment be awaken?
A: The procedure is to file another civil action. A civil action for
revival of judgment. That is what you call EXECUTION BY
INDEPENDENT ACTION which must be filed before it is barred
by the statute of limitations. The second sentence states, “after
the lapse of such time (which is 5 years) and before it is barred
by the statute of limitations, a judgment may be enforced by
action.”
Q: When will it be barred by the statute of limitations ?
A: According to Article 1144 of the New Civil Code, the judgment
may be enforced only within ten (10) years.
The ten-year period commences to run from the finality of the
judgment which is the period within which the judgment can be
enforced (Art. 1152 in relation to Art. 1144[3], Civil Code).
Because under the Rules, the date of the finality of the
judgment or final order shall be deemed to be the date of entry
(Sec. 2 R 36) the period shall run also from the date of entry of
the judgment.
An action for revival of judgment presupposes that the same can
no longer be enforced by mere motion. This means that from the
date of the finality of the judgment no motion was filed for the
execution of said judgment, thus, the need for its enforcement
by action.
The action for revival of judgment is no more than a procedural
means of securing the execution of a previous judgment which
has become dormant after the passage of five years without it
being executed upon motion of the prevailing party (Saligumba
vs.
Palanog GR 143365 December 4, 2008).
The action to revive a judgment must be filed within ten years
from the date the judgment becomes final because an action to
enforce a judgment prescribes in ten years from the finality of
the judgment (Art. 1144[3] in relation to Art. 1152, Civil Code of
the Philippines). Since the date of the finality of the judgment or
final order shall be deemed to be the date of the entry (Sec. 2 R
36), the prescriptive period shall run from the date of entry of
the judgment.
When a judgment is revived under Section 6, such revived
judgment may also be enforced by motion within 5 years from
the date of its entry and thereafter by action also before it is
barred by the statute of limitations (Sec. 6).
Revived judgment a new judgment
A revived judgment is deemed a new judgment separate and
distinct from the original judgment. It is not a continuation of
the original judgment. The action to revive the judgment is a
new action and results in a new judgment constituting a new
cause of action with a new period of limitation. Hence, the ten
(10) year period to revive the revived judgment shall commence
to run from the date of the finality of the revived judgment and
not from the date of finality of the old, original judgment (PNB
vs. Bondoc 14 SCRA 770).
While this ruling was abandoned in PNB vs. Deloso 23 SCRA
266 and Luzon Surety Co. Inc. vs. IAC GR 72645 June 30,
1987, which held that the ten-year period should run from the
finality of the original judgment and not from the finality of the
revived judgment, the ruling in Bondoc was resurrected in the
present provision of Section 6 which declares in its last
sentence that “The revived judgment may also be enforced by
motion within five (5) years from the date of its entry and
thereafter by action before it is barred by the statute of
limitations.”
The SC had long ago ruled that after the lapse of five (5) years,
the judgment “is reduced to a mere right of action in favor of the
person whom it favors which must be enforced, as are all
ordinary actions, by the institution of a complaint in the regular
form” (Compana General de Tobacos vs. Martinez and Nolan 29
Phil. 515; Aldeguer vs. Gemelo 68 Phil. 421).
If the prevailing party fails to have the decision enforced by a
motion after the lapse of five years from the date of entry of the
judgment, the said judgment is reduced to a right of action
which must be enforced by the institution of the complaint in a
regular court within ten years from the time the judgment
became final (Bausa vs. Heirs of Juan Dino GR 167281 August
28, 2008).
Action for Revival not to reopen any issue affecting the
merits of
the judgment
An action for revival of judgment is not intended to reopen any
issue affecting the merits of the judgment debtor’s case nor the
propriety or the correctness of the first judgment. It is a new
and independent action wherein the cause of action is the
decision itself and not the merits of the action upon which the
judgment sought to be enforced is rendered (Juco vs. Heirs of
Tomas Siy Chung Fu GR 150233 February 16, 2005; Saligumba
vs. Palanog, supra). It is an “original action, not a mere incident
of the primitive suit or a mere auxiliary or supplemental
remedy” (Aldeguer vs.
Gemelo 68 Phil. 421).
The purpose of the new action is not to reexamine and retry
issues already decided and the cause of action of this new
action is the judgment to be revived and no identity of causes of
action can be said to exist between the first and the second
actions (Caina vs. CA GR 114393 Dec. 14 1994). GThe
consideration of any issue affecting matters that could have
been raised in the previous case must be deemed as definitely
foreclosed (Phil. Reconstruction Corp. Inc. Vs. Aparente 45
SCRA 217). It is not meant to retry the case all over again
(Enriquez vs. CA 372 SCRA 372).
Riano’s comment:
If the action to revive a judgment (or an action upon a judgment
is according to Aldeguer vs. Gemelo a new cause of action and
not a continuation of the old, it should not, in this sense, be
dependent upon the previous action for its jurisdictional
requirements and does not necessarily have to be filed in the
same court which rendered the judgment.
It is submitted that the new action, i.e.., to revive the judgment
would necessarily raise the fundamental issues of whether or
not the plaintiff has a right to have the judgment revived and to
have a new right of enforcement from its revival, issues that by
nature are incapable of pecuniary estimation. Inevitably, a
litigant may find himself in a situation where he files the action
in the RTC to revive a judgment rendered by a MTC.
It is submitted that it is in this light that the 1957 case of
Torrefranca et al., vs. Albiso 102 Phil. 732 should be re-
examined.
The facts had their origins in an action to revive a judgment
filed in the same court which, more than five years ago,
rendered a judgment in an action for forcible entry against the
defendant. The defendant opposed the action but the justice of
the court declared the judgment revived. The subsequent appeal
to the CFI was dismissed and plaintiff went to the SC on a
question of law – whether or not a justice of the peace has the
authority to revive its own judgment.
The SC ruled that the Judiciary Act of 1948 gave justice of
peace courts jurisdiction over actions of forcible entry and
unlawful detainer “and also empowers them … to issue all
processes necessary to enforce their judgments and orders.
Needless to say, the revival of a judgment is a necessary step in
its enforcement…”
The rationale of Torrefranca in sustaining the power of the court
to revive its own judgment is clearly predicated on the
jurisdiction of the trial court over the case of forcible entry. The
ruling obviously assumes that the revived judgment is a
continuation of the old judgment and viewed the revival of the
judgment as merely incidental to or ancillary to the execution of
the original judgment.
This rationale does not fall squarely with the more recent
pronouncements of the Court that an action to revive a
judgment is a new cause of action and not a mere continuation
of the original action.
Venue of revival of judgment action
In Infante vs. Aran Builders Inc. GR 156596, August 24, 2007,
the Court xplained thus:
“… the proper venue depends on the determination of whether
the present action for revival of judgment is a real action or a
personal action … if the action for revival of judgment affects
title to or possession of real property, or interest therein, then it
is a real action that must be filed with the court of the place
where the real property is located. If such action does not fall
under the category of real actions, it is then a personal action
that may be filed with
the court of the place where the plaintiff or defendant resides…”
When the five-year period to execute by motion may be
interrupted
In many instances, the delays in the execution of the judgment
were through causes clearly attributable to the judgment debtor
as when he employs legal maneuvers to block the enforcement
of the judgment. Delays attributable to the defendant have the
effect of suspending the running of the prescriptive period for
the enforcement of the judgment (Potenciano vs. Mariano 93
SCRA 463; Camacho vs. CA 287 SCRA 611; Republic vs. CA
260 SCRA 344).
There are instances where the Court allowed execution by
motion even after the lapse of five years upon meritorious
grounds. These exceptions have one common denominator, and
that is, the delay is caused or occasioned by actions of the
judgment debtor and/or is incurred for his benefit or advantage.
It has been held that in computing the time limit for enforcing a
final judgment, the general rule is that the time when the
execution is stayed, either by agreement of the parties for a
definite time, by injunction, or by the taking of an appeal or writ
of error, shall not be included. Thus, the time during which
execution is stayed should be excluded, and the said time will
be extended by any delay occasioned by the debtor as when the
writ of execution cannot be enforced within the five-year period
because the debtor filed petitions in the CA and in the SC
challenging the trial court’s judgment as well as the writ of
execution. Such petitions suspended or interrupted the further
enforcement of the writ (Yau vs. Silverio GR 158848; Macapagal
vs. Gako GR 171994, February 4, 2008).
The period may also be interrupted by the agreement of the
parties to suspend the enforcement of the judgment (Torralba
vs. de los Angeles 96 SCRA 69; Macias vs. Lim 431 SCRA 20).
When 5 and 10 year periods do not apply
The periods do not apply to
a) special proceedings, such as land registration and
cadastral cases, wherein the right to ask for a writ of
possession does not prescribe (Rodil vs. Benedicto 95
SCRA 137;
b) judgments for support which do not become dormant
and which can always be executed by motion despite
lapse of the five-year period because the obligation is a
continuing one and the court never loses jurisdiction
to enforce the same (Canonizado vs. Benitez 127 SCRA
610).
Therefore, since the judgment will be enforced by motion for five
(5) years, then after the fifth year, it will be enforced by
independent action. So, I will start the civil action for revival of
judgment between or after the 5th year but before the 10th
year.
So, that is what we have to remember.
Q: Do you mean to tell me that I have to file the case all over
again, practically repeating what happened 5 years ago?
A: NO, because the judgment in the independent action is a
judgment reviving the first judgment.
For example, more than 5 years ago I sued you to collect on a
promissory note and you alleged payment, and you lost and the
court said that you are liable to me. On the seventh year when I
revived that judgment, my rights are no longer based or derived
on the promissory note but on such judgment. But you can still
invoke other defenses such as lack of jurisdiction, fraud. But
you cannot question the correctness of the original judgment
because that is already res adjudicata. You are entitled to put
up any defense that you have against me provided that you
cannot question the correctness of the original judgment. That
is the rule.
Q: Discuss briefly the nature of the action for enforcement of a
dormant judgment.
A: The action for enforcement of a dormant judgment is an
ordinary civil action the object of which is two-fold, namely,
a) to revive the dormant judgment, and
b) to execute the judgment reviving it, if it grants the
plaintiff any relief.
Hence, the rights of the judgment-creditor depend upon the
second judgment. Being an ordinary civil action, it is subject to
all defenses, objections and counterclaims which the judgment-
debtor may have except that no inquiry can be made as to the
merits of the first judgment. Therefore, defenses that do not go
to the merits of the first judgment, such as lack of jurisdiction,
collusion, fraud, or prescription, may be set up by the
judgment-debtor. (Cia. Gral. De Tabacos vs. Martinez, 17 Phil.
160; Salvante vs. Ubi Cruz, 88 Phil.
236) [Taken from Remedial Law Reviewer by Nuevas]
So, I repeat, the last sentence has resurrected the ruling in the
case of PNB vs. BONDOC and superseded again LUZON vs. IAC.
You are entitled to another 10 years from the date of the revived
judgment.
ILLUSTRATION:
Example: First judgment became final in 1990. You can
enforce that until 2000 by motion (1990-1995) or by
independent action (1995 – 2000). Suppose in 2000, you were
able to secure a second judgment reviving the first judgment,
under the new rules, there is another ten years. The first
judgment by motion. The next 5 years is by independent action.
So, to illustrate:

1990 1995 2000 2005 2010

Q: Give the exception to the rule on dormant judgment.

A: The only exception is the judgment for support which does 5yrs by 5yrs by 5yrs by 5yrs by
not become dormant, nor does it prescribe. You can execute it motion Independent motion Independent
anytime even beyond the 5-year period and any unpaid Action Action
installment may be executed by motion. (Florendo vs. Organo,
90 Phil. 483) So, even if the judgment is more than 5 years old,
the defendant defaulted on the seventh year, you just file a 10 yrs 10yrs
motion to collect that judgment. Art 1144, Civil Code last sentence of
Sec 6
Q: Suppose the judgment was executed and the property of the
defendant was levied on the 4th year, and the next stage is the ARCENAS vs. CA – 299 SCRA 733 (December 4, 1998)
auction sale.
HELD: “The purpose of the action for revival of a judgment is
A: The SC said the auction sale must also be WITHIN 10 years. not to modify the original judgment subject of the action but is
So, even if the property was levied, the auction sale must be merely to give a creditor a new right of enforcement from the
within 10 years. Not only the levy of the property must be done date of revival.”
within 10 years but also the including the auction sale,
otherwise, any auction sale done beyond 10 years in null and “The rule seeks to protect judgment creditors from wily and
void. unscrupulous debtors who, in order to evade attachment or
execution, cunningly conceal their assets and wait until the
Now, look at the last sentence in Section 6: “The revived statute
judgment may also be enforced by motion within five (5) years of limitation sets in.”
from the date of its entry and thereafter by action before it is
barred by the
Sec. 7. Execution in case of death of party. -
statute of limitations.” In case of the death of a party, execution
may issue or be enforced in the following
For example, I have here a judgment nine (9) years ago. I want manner:
to enforce it by action to revive judgment. You mean to tell me
that the revived judgment is good for another ten (10) years? (a) In case of the death of the judgment
Another 5 years for motion to a right of action and then I can obligee, upon the application of his
still revive it within 10 years? executor or administrator, or successor in
interest;
Alright, in the original case of PNB vs. BONDOC (14 SCRA 770), (b) In case of the death of the judgment
the SC said that the period applies all over again from the obligor, against his executor or
finality of the revived judgment. So, you have another ten (10) administrator or successor in interest, if
years. However, this principle is abandoned in the later case of the judgment be for the recovery of real or
PNB vs. VELOSO (32 SCRA 266), the SC said that the original personal property, or the enforcement of a
period is only computed from the date of the original judgment. lien thereon;
(c) In case of the death of the judgment
And of course, because of those 2 conflicting cases, the court obligor, after execution is actually levied
resolved those issues in the case of LUZON SURETY CO. vs. IAC upon any of his property, the same may be
sold for the satisfaction of the judgment
(151 SCRA 652) where the SC said, the later doctrine of
obligation, and the officer making the sale
VELOSO prevails. So, with that ruling, the 10-year period
shall account to the corresponding
applies only from the date of the original judgment, but you
executor or administrator for any surplus
cannot say that once it is revived, you have another 10 years.
in
his hands. (7a)
But now, you look at the new law: “The revived judgment may
also be enforced by motion within five (5) years from the date of
This is related to Rule 3, Section 20.
its entry and thereafter by action before it is barred by the statute
of limitations.” Ano yan? That is a revival of the BONDOC ruling!
Binalik yung original ruling which is, the revived judgment is Q: What is the effect of a death of a party on the execution of a
good for another 10 years. judgment?

A: The following:
1) If it is the obligee (the creditor) will die after he wins
the case, his executor or administrator, his legal
representative or his heirs and successors in interest
can enforce the judgment. They will be the one to
collect.
(paragraph [a])
2) If it is the defendant (obligor) who dies and there is
final judgment which is recovery of real or personal
property, the judgment is executed against the
administrator or executor because this is an action
which survives.
(paragraph [b]);
3) Under par. (c), it is the death of the obligor in a money
claim. This is related to Rule 3, Section 20. However,
the timing of the death is different. Let us connect
these with Rule 3, Sec. 20:
Sec. 20. Action on contractual money claims.
- When the action is for recovery of
money arising from contract, express or
implied, and the defendant dies before
entry of final judgment in the court in
which the action was pending at the time
of such death, it shall not be dismissed
but shall instead be allowed to continue
until entry of final judgment. A favorable
judgment obtained by the plaintiff therein
shall be enforced in the manner especially
provided in these Rules for prosecuting
claims against the estate of a deceased
person. (21a)
So, for EXAMPLE: A filed a case against B to collect an unpaid
loan. What is the effect to the case if B dies? It will depend on
what stage of the case he dies. If he died before final judgment
could be rendered by the court (before entry of final judgment),
there will be a substitution of party and the case will continue
until entry of final judgment.
Suppose, there is already entry of final judgment and he dies, it
will depend whether there was already a levy on execution.
Meaning, there was already entry of final judgment but before
the property is levied. This should not apply in Rule 39 because
Section 7 [c]
states that “after execution is levied.”
But my question is no levy. The procedure there is found in the
Special Proceedings. The judgment shall be enforced in the
manner provided for by the Rules on claims against the estate of
the deceased under Rule 86. And that is also mentioned in
Rule 3, Section 20. It shall be enforced in the manner provided
for against the estate.
Q: Suppose the defendant dies when there is already a levy.
What will happen?
A: The auction sale will proceed as scheduled in connection with
Section 7 [c] because the law says “the same may be sold for the
satisfaction of the judgment obligation.” Meaning, the auction
sale or the execution sale shall proceed as scheduled. No more
substitution here.
So that question, “What is the effect of the death of a party on a
pending civil case” is a question with so many angles – anong
klaseng kaso?; is it one which is personal in nature or not?; if it
is not, is it one which survives or one which does not?; if it does
not survive, who died?; the plaintiff or the defendant? – if it is
the defendant, did he die before entry of final judgment?; did he
die after entry of final judgment but before there could be levy
or execution?; or did he die after levy or execution? – This last
question is answered by Section 7 [c].
Sec. 8. Issuance, form and contents of a writ of
execution. - The writ of execution shall:
(1) issue in the name of the Republic of the
Philippines from the court which
granted the motion;
(2) state the name of the court, the case
number and title, the dispositive part of
the subject judgment or order; and (3)
require the sheriff or other proper officer
to whom it is directed to enforce the writ
according to its terms, in the manner
hereinafter provided:
(a) If the execution be against the property of
the judgment obligor, to satisfy the
judgment, with interest, out of the real or
personal property of such judgment obligor;
(b) If it be against real or personal property in
the hands of personal representatives,
heirs, devisees, legatees, tenants, or
trustees of the judgment obligor, to satisfy
the judgment,
with interest, out of such property;
(c) If it be for the sale of real or personal
property, to sell such property, describing
it, and apply the proceeds in conformity
with the judgment, the material parts of
which shall be recited in the writ of
execution.
(d) If it be for the delivery of the possession of
real or personal property, to deliver the
possession of the same, describing it, to
the party entitled thereto, and to satisfy
any costs, damages, rents, or profits
covered by the judgment out of the
personal property of the person against
whom it was rendered, and if sufficient
personal property cannot be found, then
out
of the real property; and
(e) In all cases, the writ of execution shall
specifically state the amount of the
interest, costs, damages, rents, or profits
due as of the date of the issuance of the
writ, aside from the principal obligation
under the judgment. For this purpose, the
motion for execution shall specify the
amounts of the
foregoing reliefs sought by the movant. (8a)
WRIT OF EXECUTION is actually the document which is issued
by the court addressed to the sheriff. The writ is actually the
instruction to the sheriff on what he should do. It would depend
on what kind of decision – is it an action for sum of money or is
it for recovery of real property? Mimeographed iyan, addressed
to the sheriff. These are standard forms in court.
Now, with respect to Section 8, the changes can be found in
paragraph [e] which mandates now that the writ of execution
must state the exact amount to be collected. That is why
according to the last sentence of paragraph [e], “for this
purpose, the motion for execution shall specify the amounts of the
foregoing reliefs sought by the movant.”
Normally, when lawyers file a motion to execute they will just
quote the principal, but they do not state the costs or interests.
Now, under the new rule, when you file the motion for
execution, you must also state how much is the costs or
interests.
EXECUTION OF MONEY JUDGMENT
How do you execute judgment for money?
Contractual debts or damages. Example, the
defendant is ordered to pay defendant P1 million
with interest, how does the sheriff enforce that?
Section 9 provides a detailed explanation on how
judgment for money is enforced.
Let us go over the first paragraph:
Sec. 9. Execution of judgments for money,
how enforced. -
(a) Immediate payment on demand. - The
officer shall enforce an execution of a
judgment for money by demanding from
the judgment obligor the immediate
payment of the full amount stated in the
writ of execution and all lawful fees. The
judgment obligor shall pay in cash,
certified bank check payable to the
judgment obligee, or any other form of
payment acceptable to the latter, the
amount of the judgment debt under proper
receipt directly to the judgment obligee or
his authorized representative if present at
the time of payment. The lawful fees shall
be handed under proper receipt to the
executing sheriff who shall turn over the
said amount within the same day to the
clerk of court of the court that issued the
writ.
STEPS: (under paragraph [a])
1) The sheriff must demand payment from the obligor;
2) The obligor can pay in cash, certified bank check payable
to the judgment obligee (creditor) or any other form of
payment acceptable to the latter. The payment shall go
to
the obligee;
3) The lawful fees shall be paid to the executing sheriff who
shall turn over the said amount within the same day to
the clerk of court of the court that issued the writ.
This assumes that the obligee is present with sheriff. Suppose
the creditor is not around? Let us go to the second paragraph:
Section 9 [a], 2nd par. – If the judgment
obligee or his authorized representative is
not present to receive payment, the
judgment obligor shall deliver the aforesaid
payment to the executing sheriff. The
latter shall turn over all the amounts
coming into his possession within the
same day to the clerk of court of the court
that issued the writ, or if the same is not
practicable, deposit said amounts to a
fiduciary account in the nearest
government depository bank of the
Regional Trial Court of the locality.
If the plaintiff is not there, the payment is made to the sheriff
and he is supposed to endorse it to the clerk of court. The clerk
of court will look for the obligee to remit the money.
In the second sentence, this usually happens if the execution is
to be done outside of the locality. For example, the decision in
Davao will be enforced in Cotabato. So, the sheriff in Cotabato
will be the one to enforce and he will give the payment to the
clerk of court there who in turn will transmit the money to the
clerk of court in Davao. This is because the decision to be
executed is one in Davao.
Let us go to the third paragraph:
The clerk of said court shall thereafter
arrange for the remittance of the deposit
to the account of the court that issued the
writ whose clerk of court shall then deliver
said payment to the judgment obligee in
satisfaction of the judgment. The excess, if
any, shall be delivered to the judgment
obligor while the lawful fees shall be
retained by the clerk of court for
disposition as provided by law. In no case
shall the executing sheriff demand that
any payment by check be made payable to
him.
This assumes that the property of the defendant which was
levied in Cotabato but judgment is one which originated in
Davao – clerk to clerk.
The last sentence says “In no case shall the executing sheriff
demand that any payment by check be made payable to him.” It
shall be payable to the obligee. I think what the SC would like to
avoid here is that which happened in the case of PAL – a labor
case where PAL paid check payable to the sheriff. The sheriff
ran away with the check. PAL was made to pay all over again.
(b) Satisfaction by levy. - If the judgment
obligor cannot pay all or part of the
obligation in cash, certified bank check or
other mode of payment acceptable to the
judgment obligee, the officer shall levy
upon the properties of the judgment
obligor of every kind and nature
whatsoever which may be disposed of for
value and not otherwise exempt from
execution giving the latter the option to
immediately choose which property or
part thereof may be levied upon, sufficient
to satisfy the judgment. If the judgment
obligor does not exercise the option, the
officer shall first levy on the personal
properties, if any, and then on the real
properties if the personal properties are
insufficient to answer for the judgment.
So, under paragraph [a], the first step is when the judgment
debtor has enough money, bayaran niya in cash or check.
Q: Suppose walang pera, or the cash is not sufficient. What will
the sheriff do?
A: He shall levy upon the properties of the judgment obligor not
otherwise exempt from execution. In the vernacular term,
sasabihing ‘na-sheriff’ ka.
Q: Define levy.
A: Levy is the act whereby a sheriff sets apart or appropriates,
for the purpose of satisfying the command of the writ, a part or
the whole of the judgment-debtor’s property. (Valenzuela vs. De
Aguilar, L-18083-84, May 31, 1963) Normally, this is done on
personal property. Kung lupa naman, they will annotate on the
title. Parang mortgage ba.
Q: What is the importance of levy with respect to execution of a
money judgment?
A: Levy is a pre-requisite to the auction sale. In order that an
execution sale may be valid, there must be a previous valid levy.
A sale not preceded by a valid levy is void and the purchaser
acquires no title. (Valenzuela vs. De Aguilar, L-18083-84, May
31, 1963)
Q: What kind of property can be levied?
A: Any – real, personal, tangible, intangible – except those
properties exempt from execution.
Q: Does the debtor have the right to tell the sheriff what
property he should levy?
A: YES. The law gives the debtor or defendant the option to
immediately choose which property or part thereof may be
levied upon sufficient to satisfy the judgment. Example: I am
the debtor and I have many properties. And the sheriff would
like to levy on my house and lot, or ‘yung Toyota Altis ko. Under
the law, I have the right to choose among them.
The phrase “giving the latter the option to immediately choose
which property or part thereof may be levied upon, sufficient to
satisfy the judgment.” This did not appear under the old law.
This is taken from the case of PHILIPPINE MILLS vs. DAYRIT
(192 SCRA 177), where the SC said the debtor is given the
option of which property shall be levied.
And the sequence of levying is to levy the personal properties
first.
Then real properties if personal properties are not sufficient.
Under the second paragraph of [b], when the sheriff levies on
the property of the judgment debtor and the judgment debtor
has more than sufficient property to cover the judgment debt,
the sheriff cannot levy all the properties. Or else, he will be
made liable. For example, the debt is only P 30,000, tapos ang
i-levy mo kotse (Toyota Altis) at bahay, which worth millions?
My golly! That’s too much! You sell only up to the point that the
judgment will be satisfied.
Q: But if it is real property or intangible personal property like
shares of stock, debts, credits (collectibles), can you levy on
these?
A: YES. And under the last paragraph of [b] They may be levied
upon in like manner and with like effect as under a writ of
attachment under Rule 57 on attachment.
GARNISHMENT – HOW TO LEVY
Paragraph [c] of Section 9 is on how to levy intangibles. When
you want to levy or you want to execute on intangible property,
the legal term there is garnishment.
(c) Garnishment of debts and credits. - The
officer may levy on debts due the
judgment obligor and other credits,
including bank deposits, financial
interests, royalties, commissions and other
personal property not capable of manual
delivery in the possession or control of
third parties. Levy shall be made by
serving notice upon the person owing such
debts or having in his possession or
control such credits to which the judgment
obligor is entitled. The garnishment shall
cover only such amount as will satisfy the
judgment and all lawful fees.
The garnishee shall make a written report
to the court within five (5) days from
service of the notice of garnishment
stating whether or not the judgment
obligor has sufficient funds or credits to
satisfy the amount of the judgment. If
not, the report shall state how much funds
or credits the garnishee holds for the
judgment obligor. The garnished amount in
cash, or certified bank check issued in the
name of the judgment obligee, shall be
delivered directly to the judgment obligee
within ten (10) working days from service
of notice on said garnishee requiring such
delivery, except the lawful fees which shall
be paid directly to the court.
In the event there are two or more
garnishees holding deposits or credits
sufficient to satisfy the judgment, the
judgment obligor, if available, shall have
the right to indicate the garnishee or
garnishees who shall be required to deliver
the amount due; otherwise, the choice
shall be made by the judgment obligee.
The executing sheriff shall observe the
same procedure under paragraph (a) with
respect to delivery of payment to the
judgment
obligee. (8a, 15a)
Q: So, what are these properties which may be the subject of
garnishment?
A: Credits which include bank deposits, financial interests,
royalties, commissions and other personal property not capable
of manual delivery – intangibles bah! You send a notice upon
the person owing such debts or having in his possession or
control such credits. And it shall cover only such amount as will
satisfy the judgment.
Example of garnishment: bank account. I will file a case
against you, talo ka. I learned that you have a deposit with
Sanikoh Bank. Puwede kong habulin yan ba, because that is
credit. In obligations and contracts, the relationship of the
depositor and the bank is that of a creditor and debtor. It is not
a contract of deposit because actually, the bank is borrowing
money from you. Kaya nga, it pays you interest eh.
So, under garnishment, the bank is being commanded not to
pay you but instead pay the sheriff. Yaan!! Yan ang concept ng
garnishment. Garnishee refers to the debtor, like the bank.
When the bank deposit is garnished, the second paragraph tell
us what the bank will do. And if there are 2 or more banks na
ma-garnish, under the next paragraph, the debtor obligor will
determine. If he does not exercise his option, then the judgment
creditor will determine.
EXECUTION OF JUDGMENT OTHER THAN MONEY
Section 10 is the procedure for executing a judgment other than
to collect money. Sometimes, money is only incidental. There
are court decisions could be something else like specific
performance, or accion publiciana. You are more interested in
recovering your property. Another is Unlawful Detainer where
unpaid rentals may be paid but the plaintiff is more interested
in the ejectment – the unpaid rentals can be collected in the
same manner as Section 9.
Sec. 10. Execution of judgments of specific
act. –
(a) Conveyance, delivery of deeds, or other
specific acts; vesting title. - If a judgment
directs a party to execute a conveyance of
land or personal property, or to deliver
deeds or other documents, or to perform
any other specific act in connection
therewith, and the party fails to comply
within the time specified, the court may
direct the act to be done at the cost of the
disobedient party by some other person
appointed by the court and the act when
so done shall have like effect as if done by
the party. If real or personal property is
situated within the Philippines, the court
in lieu of directing a conveyance thereof
may by an order divest the title of any
party and vest it in others, which shall
have the force and effect of a conveyance
executed in due form of law.
(10a)
xxxxx
EXAMPLES of the first sentence:
1) An action for reconveyance of property where you are
asking the defendant, a title owner, to convey to you
his property. The property will be held in trust or that
the title be in your name instead of his;
2) Pacto de retro. I sold to you my land and I am
repurchasing it, pero ayaw mo. You refuse to execute a
deed of sale returning the property to me;
3) Public Land Law. I am the owner of a property under
homestead or free patent and sold it after the
prohibition period. Under the public land law, I have
the right to repurchase it within 5 years. Ayaw mong
ibalik, so idemanda kita. Of course, if I win, you will be
directed to return to me the property and execute a
deed of sale.
4) An action for specific performance to compel you to
return to me said property. And the court will order:
“Alright, execute a deed of sale.” You refuse. The court
may order the clerk of court to sign the deed of sale or
the Register of Deeds will be ordered to register the
same as if done by the obligor. The obligor’s signature
is not needed.
(b) Sale of real or personal property. - If the
judgment be for the sale of real or personal
property, to sell such property, describing
it, and apply the proceeds in conformity
with the judgment. (8 [c] a)
The best example for [b] is an action for termination of
coownership where there are 50 co-owners of one (1) hectare –
the property will be ordered sold and the proceeds will be
distributed among the co-owners.
(c) Delivery or restitution of real property. - The
officer shall demand of the person against
whom the judgment for the delivery or
restitution of real property is rendered and
all persons claiming rights under him to
peaceably vacate the property within three
(3) working days, and restore possession
thereof to the judgment obligee; otherwise,
the officer shall oust all such persons
therefrom with the assistance, if
necessary, or appropriate peace officers,
and employing such means as may be
reasonably necessary to retake possession,
and place the judgment obligee in
possession of such property. Any costs,
damages, rents or profits awarded by the
judgment shall be satisfied in the same
manner as a judgment
for money. (13a)
Now, with respect to Section 10, particularly paragraph [c] –
delivery or restitution of real property. – this is applicable to
actions for forcible entry, unlawful detainer, accion publiciana.
Q: So, what is the procedure?
A: The sheriff will give the defendant the chance to vacate the
property, “I am giving you the chance to vacate within three (3)
working days and restore possession thereof.” And then ayaw
mo pa rin, I will use force to oust you with the assistance of the
appropriate peace officers and place the judgment obligee in
possession of such property.
And if there are damages or unpaid rentals, I will also levy the
property under Section 9. Because sometimes, aside from
ousting the defendant, meron pang money judgment like unpaid
rentals. So, the property of the defendant may be levied. That is
the procedure.
In the 1995 case of
SAN MANUEL vs. TUPAS – 249 SCRA 466
HELD: “The immediate enforcement of a writ of ejectment
execution is carried out by giving the defendant a notice of such
writ and making a demand that defendant comply therewith
within a reasonable period, normally from three (3) to five (5)
days, and it is only after such period that the sheriff enforces
the writ by the bodily removal of the defendant and his personal
belongings.”
(d) Removal of improvements on property
subject of execution. - When the property
subject of the execution contains
improvements constructed or planted by
the judgment obligor or his agent, the
officer shall not destroy, demolish or
remove said improvements except upon
special order of the court, issued upon
motion of the judgment obligee after due
hearing and after the former has failed to
remove the same within a reasonable time
fixed by the court.
(14a)
Q: When you oust the defendant in regard of a possession case,
is a writ of execution a sufficient basis for the removal of
improvements of the property?
A: NO. Under paragraph [d], the plaintiff or judgment obligee
still have to get a special order from the court by filing a petition
to authorize the destruction or removal of the improvements of
the property after the defendant is given a reasonable time to
remove his shanty or house voluntarily.
In other words, there must be a special order. The writ of
execution only authorizes you to oust the defendant physically,
but not to destroy any property. Just like in squatters, you need
a special order for demolition.
(e) Delivery of personal property. - In
judgments for the delivery of personal
property, the officer shall take possession
of the same and forthwith deliver it to the
party entitled thereto and satisfy any
judgment for
money as therein provided. (8a)
Paragraph [e] is related to REPLEVIN – action to recover
personal property – where the plaintiff is trying to repossess a
personal property from the defendant. For example, bili ka ng
appliance tapos hindi mo nabayaran, babawiin yan ng
appliance center. Or, the finance company or the car dealer will
resort to replevin to recover the unit by filing an action for
replevin against the buyer.
Take note that the procedure for enforcing a money judgment is
different from enforcing a judgment for ejectment, or recovery of
possession. Enforcement of money judgment is in Section 9 –
you get the money. Kung walang money, you levy on the
property of the defendant. If it is ejectment or recovery of
possession of property, you follow Section 10, paragraph [c].
Now, here is an interesting case involving these two sections
(Sections 9 & 10) –the 1995 case of
ABINUJAR vs. CA – 243 SCRA 531
FACTS: The case of Abinujar started when the plaintiff filed a
case for unlawful detainer against the Abinujar spouses for the
latter to vacate their house in Manila. When the case was going
on, the parties executed a compromise agreement which became
the basis of the judgment by the court, so a compromise
judgment.
The agreement stated that the Abinujar spouses shall pay the
plaintiffs the amount specifically agreed upon: P50,000 on
January 31; P10,000 on Febrauary 28; P10,000 on March 31,
etc. until September 30. It further states that failure on the part
of the Abinujar spouses to pay three (3) consecutive payments,
the plaintiffs shall be entitled to a writ of execution.
After three (3) months, the plaintiffs filed a motion for execution
on the ground that the Abinujars failed to pay the three
installments. The trial court granted the motion and the notice
to the defendant to voluntarily vacate the premises was served
on the Abinujars.
The Abinujars attacked the validity of the sheriff’s notice to
vacate by way of enforcing the compromise judgment. They
maintained that their obligation is monetary and therefore you
should apply Section 9 – you collect but do not eject us. The
plaintiffs argued that what is applicable is Section 10 on
ejectment because this is an unlawful detainer case.
ISSUE: Which section shall be applied – Section 9? or Section
10?
HELD: The contention of the Abinujars is meritorious –
meaning, you cannot eject the Abinujars.
“When the parties entered into a compromise agreement, the
original action for ejectment was set aside and the action was
changed to a monetary obligation.
“A perusal of the compromise agreement signed by the parties
and approved by the inferior court merely provided that in case
the Abinujars failed to pay three monthly installments, the
plaintiffs would be entitled to a writ of execution, without
specifying what the subject of execution would be. Said
agreement did not state that Abinujars would be evicted from
the premises subject of the suit in case of any default in
complying with their obligation thereunder. This was the result
of the careless drafting thereof for which only plaintiffs were to
be blamed.
“As Abinujar’s obligation under the compromise agreement as
approved by the court was monetary in nature, plaintiffs can
avail only of the writ of execution provided in Section 9, and not
that provided in Section 10.”
ORDINARY AND SPECIAL JUDGMENT
Sec. 11. Execution of special judgments. -
When a judgment requires the
performance of any act other than those
mentioned in the two preceding sections,
a certified copy of the judgment shall be
attached to the writ of execution and shall
be served by the officer upon the party
against whom the same is rendered, or
upon any other person required thereby,
or by law, to obey the same, and such
party or person may be punished for
contempt if he disobeys such judgment.
(9a)
There are two (2) types of judgment under the law: (1) SPECIAL
and (2) ORDINARY.
ORDINARY JUDGMENT - if the judgment orders the defendant
to pay money, like a collection case (Section 9) or to deliver real
or personal property (Section 10).
SPECIAL JUDGMENT – is a judgment which requires the
defendant to perform an act other than payment of money or
delivery of property. It refers to a specific act which a party or
person must personally do because his personal qualifications
and circumstances have been taken into consideration.
EXAMPLE of a special judgment: Usurpation of government
office. You are the city treasurer and somebody else is appointed
city treasurer and you refuse to vacate. So there will be a quo
warranto proceeding. Then the judgment will order you to
vacate your position, such judgment is a special judgment
because you are not ordered to pay anything nor deliver
property.
Q: What is the difference between the Ordinary and Special
judgments?
A: A special judgment may be enforced by contempt if the
defendant refuses to comply with the judgment. But if it is an
ordinary judgment and the defendant refuses to comply, it is not
a ground for contempt.
Under Section 9, if the judgment-debtor refuses to pay his debt,
you cannot cite him in contempt because under the
Constitution, no person shall be imprisoned for debt. The
correct procedure under Section 9 is you look for properties of
the defendant and then ipa-levy mo. You do not send the
debtor to jail.

Under Section 10 if the squatter refuses to vacate, you cannot
cite him in contempt and send him to jail. Kung ayaw, you get
police for back up. That is the procedure.
But under Section 11, if defendant is ordered to vacate his office
because he is no longer the city treasurer, the plaintiff can have
him arrested and brought to jail because that is a special
judgment which can be enforced by contempt.
Q: Give an specific rule on special judgment.
A: Section 9 of Rule 65 – Special Civil Action for Certiorari,
Prohibition and Mandamus, to wit:
Rule 65, Sec 9. Service and enforcement of
order or judgment.- A certified copy of the
judgment rendered in accordance with the
last preceding section shall be served upon
the court, quasi-judicial agency, tribunal,
corporation, board, officer or person
concerned in such manner as the court
may direct, and disobedience thereto shall
be punished as contempt. An execution
may issue for any damages or costs
awarded in
accordance with section 1 of Rule 39. (9a)
Therefore, a judgement in a certiorari, prohibition or mandamus
case, if not complied with, is punishable by contempt.
Sec. 12. Effect of levy on execution as to third
persons. - The levy on execution shall
create a lien in favor of the judgment
obligee over the right, title and interest of
the judgment obligor in such property at
the time of the levy, subject to liens and
encumbrances then existing. (16a)
This is related to Property Registration Decree.
EXAMPLE: I own a piece of land which I mortgaged with the
bank. The bank annotated the mortgage on my title. My land is
now subject to a lien or an encumbrance. I also owe money to A.
He sued me. He won and my land is levied.
Q: What happens to the mortgage lien of the bank? Will it be
affected by the levy of A?
A: NO. Even if the property is sold at public auction and we will
assume that it will go to A, that property is still under mortgage.
A has to respect the lien – nauna yung sa bank eh! Wherever
the property goes, it is subject to the mortgage lien of the bank
because the bank’s lien is superior.
Therefore, an execution is always subject to the liens and
encumbrances of the property then existing.
PROPERTIES EXEMPT FROM EXECUTION
We already discussed the rule that to satisfy a money judgment,
the sheriff can levy on the properties of the judgment obligor. All
properties are subject, except those exempt from execution.
What are the properties of a defendant-debtor which cannot be
subject to a levy or execution?
Sec. 13. Property exempt from execution. -
Except as otherwise expressly provided by
law, the following property, and no other,
shall be exempt from execution:
(a) The judgment obligor's family home as
provided by law, or the homestead in
which he resides, and land necessarily
used in
connection therewith;
You have a house where your family resides. You call it “FAMILY
HOME” – it is the house where the members of the family
reside, including the lot.
Q: For instance, you lost in a case where you are liable for
P200T. You have no other property left except that house where
you live.
Can the sheriff levy the house to answer such obligations?
A: NO. The judgment obligor’s family home and the land
necessarily used in connection therewith is exempt. That is a
guarantee that no matter how many obligations you have, there
is no way for you to be thrown to the street – to be a homeless
person. Your house cannot be levied; but in the Family Code,
there’s a limit, if your house is a mansion worth millions, that is
not exempt. Please review your Family Code on this matter.
(b) Ordinary tools and implements personally
used by him in his trade, employment, or livelihood;
This is self-explanatory. If you are a carpenter, you earn your
living by being a carpenter. What are the ordinary tools that you
must have? Saw, hammer, etc. By public policy and by legal
provision, the tools and implements used by a carpenter in his
trade, employment, or livelihood cannot be levied by the sheriff.
Under the prior law, there was no word “ordinary” and
“personally”. The old law says, “tools and implements used by
him”. In the new rules, the words “ordinary” and “personally”
are added. What is the reason behind this? This provision is in
accordance with what the SC ruled in the 1990 case of
PENTAGON SECURITY vs. JIMENEZ – 192 SCRA 492
FACTS: The Pentagon Security and Investigation Agency (PSIA)
is a security agency owned by somebody who is engaged in
security services. Because of a money judgment against the
agency in a labor case, the sheriff levied all the firearms of the
agency. PSIA claimed that the firearms are exempt from
execution under paragraph [b] since they are tools and
implements used by the agency in its trade, employment or
livelihood because how can a security agency operate without
firearms.
ISSUE: Is the argument of PSIA correct?
HELD: NO. The firearms owned by PSIA are not covered by the
exemption.
“The term ‘tools and implements’ refers to instruments of
husbandry or manual labor needed by an artisan craftsman or
laborer to obtain his living. Here, PSIA is a business enterprise.
It does not use the firearms personally, but they are used by its
employees. Not being a natural person, petitioner cannot claim
that the firearms are necessary for its livelihood.”
“It would appear that the exemption contemplated by the
provision involved is personal, available only to a natural
person, such as a dentist’s dental chair and electric fan. If
properties used in business are exempt from execution, there
can hardly be an instance when a judgment claim can be
enforced against the business entity.”
Meaning, if the exemption is extended to a juridical person like (Dean however refused to answer the sheriff whether the
a corporation, then practically all the properties needed by the properties in question can be levied. Tanungin mo ang abogado
business could be considered as tools and implements. For mo!)
EXAMPLE, you will sue a carrier like Bachelor Bus and you
won. Then you will levy on the bus. Bachelor will claims (f) Provisions for individual or family
exemption because that is a tool or implement. use sufficient for four months;

Or, you file a case against PAL. They lost. You levy on the For example, one sack of rice for daily consumption, canned
airbus. PAL alleged exemption because it is a tool or implement. goods – provisions for consumption good for 4 months are
My golly! Lahat ng properties, “tools or implements!”? Di pwede exempt. If you have one bodega of rice, ibang storya yan.
yan! That is not what the law contemplates.
(g) The professional libraries and
Now, what is interesting in the PENTAGON case is that the SC equipment of judges, lawyers,
says that firearms can be levied, they can be sold at public physicians, pharmacists, dentists,
auction. SC: “However, for security reasons, and to prevent the engineers, surveyors, clergymen,
possibility that the firearms to be sold at the execution sale may teachers, and other professional,
fall into the hands of lawless and subversive elements, the sale not exceeding three hundred
at public auction should be with the prior clearance and under thousand
supervision of the PNP.” Otherwise, the persons who might bid (P300,000.00) pesos in value;
are kidnappers, NPA, Abu Sayyaff, (Kuratong Baleleng, MILF,
MNLF, Lost Command, Kulto Pinish, Polgas, PAOCTF, Osama Your books, books of judges and professionals and equipment –
bin Laden et al, etc.) So, there must be a prior clearance on the maybe the computer, typewriter, dentist’s chair, equipment of
sale of the firearms during the auction sale. engineers are exempt provided the value does not exceed
P300,000.
(c) Three horses, or three cows, or
three carabaos, or other beasts of (h) One fishing boat and accessories
burden, such as the judgment not exceeding the total value of
obligor may select necessarily one hundred thousand
used by him in his ordinary (P100,000.00) pesos owned by a
occupation; fisherman and by the lawful use of
which he
For example, you are a farmer. You plow your land by a earns his livelihood;
carabao. You cannot levy the carabao. OR, if you are a cochero,
you have a horse for your caretela. You cannot levy the horse. Example: Fishing boat of a fisherman, the accessories – net,
[ang horse shit, pwede! Pero yung horse mismo, di pwede!] And provided these do not exceed P100,000.
under the prior rules, only 2 horses, 2 cows or carabaos are
exempt. The new rules make it three (3).
(i) So much of the salaries, wages, or
earnings of the judgment obligor
(d) His necessary clothing and articles for his personal services within
for ordinary personal use, the four months preceding the
excluding jewelry; levy as are necessary for the
support of his family;
You cannot levy on the debtor’s wardrobe. These are articles for
ordinary personal use. This article excludes jewelry. Alahas, The salary of a person within 4 months is exempt. For example,
pwede i-levy. All other things for basic needs are exempt, like you have backwages of 6 months. Only 2 months salary can be
personal comb, toothbrush, etc. levied.
Exempt ang 4 months.
(e) Household furniture and utensils
necessary for housekeeping, and Technically, wages and salaries are exempt as long as they are
used for that purpose by the necessary for support of living. If you earn a minimum wage,
judgment obligor and his family, everything may be exempted. But if you earn P50,000 a month
such as the judgment obligor may
and you support only two people, the court may levy on the
select, of a value not exceeding
excess.
one hundred thousand pesos;

(j) Lettered gravestones;

Household furniture like dining table, dining chair, sala set,
utensils necessary for housekeeping and used for the purpose
by the obligor and his family like plates, forks, spoons. How can Lapida sa sementeryo, hindi pwede i-levy. Why will you levy on
you eat without those utensils. BUT there’s a limit that the lettered gravestones? My golly!
value does not exceed P100,000. If the value exceeds, it can be
levied.
(k) Monies, benefits, privileges, or
There was a sheriff who asked me (Dean I). According to him, annuities accruing or in any
he was enforcing a money judgment. The sheriff went to the manner growing
house of the debtor. He took the stereo, TV set, refrigerator. out of any life insurance;
Defendant said, “Hindi pwede dahil hindi pa umabot ng
P100,000.” Sabi ko, you look at the law: You cannot levy those The proceeds of life insurance. The amount received by the
furnitures if not exceeding P100,000. In my (Dean’s) view, beneficiaries cannot be levied, not a single centavo.
covered yan. But utensils not necessarily for living are not
covered by the exemption. They are luxury, not necessary.
(l) The right to receive legal support,
These TV, sala set, refrigerator can be levied because they are
or money or property obtained as
not necessary for living as contrasted to kutsara, plato, etc.
 such support, or any pension or
gratuity from the
Government;
The right to receive legal support. The right ba! For instance,
ako na lang ang mag receive ng support mo. Hindi pwede yan.
Also the money given monthly to you if you are receiving
support cannot be levied. Any pension or gratuity from the
government – GSIS pension, for example.
(m) Properties specially exempted by
law.
This is very broad – any other property exempt by special law.
Q: Give an example where a property is exempt from execution
under the special law?
A: The following:
1) Property obtained pursuant to a free patent
application, HOMESTEAD. That is not subject to any
claim within 5 years. You cannot even sell that within
5 years, how much more kung embargohin sa iyo?
That is under CA 141 – Public Land Law;
2) Under Social Legislation, SSS benefits are also exempt
from execution, just like GSIS benefits;
3) Under CARP law, the property acquired by a tenant
under that law cannot be levied also.
Section 13, last paragraph:
But no article or species of property
mentioned in this section shall be exempt
from execution issued upon a judgment
recovered for its price or upon a judgment
of
foreclosure of a mortgage thereon. (12a)
The last paragraph of Section 13 says that if for example, you
ordered books and you failed to pay, you cannot claim the
exemption because the obligation arose from the same item.
For example:
BAR PROBLEM: A lawyer went to Alemars professional books
supply. He bought books worth half a million. That was utang –
P500,000. The store decided to sue the lawyer for such amount
not paid. The bookstore got a judgment. There was a levy on the
lawyer’s property. The sheriff levied on the same books which
became the source of the case. The lawyer claimed exemption
under Section 13 up to P300,000 because it forms part of his
professional library. Is the lawyer correct??
A: the lawyer is WRONG because of the last paragraph of
Section 13 that no article or species of properties mentioned in
this section shall be exempt from execution issued upon a
judgment recovered for the price or upon a judgment of
foreclosure of a mortgage thereon.
What the law says, is the properties mentioned here (in Section
13) are exempt, EXCEPT when that debt arose out of that
property. For example, here, why are you indebted to Alemars?
Because of unpaid books. So the very books which gave rise to
an obligation are not exempt from execution.
But if another creditor will file a case against the lawyer, and
that other creditor will win, that creditor cannot levy on the
books because they are exempt. But the creditor from whom the
books were bought can levy on the same books which gave rise
to an obligation.
The same thing with FAMILY HOME. For example, you will
build a family home and then, hindi mo binayaran ang
materials, labor and there was judgment against you. The
creditor and the owner can levy on the house. He cannot claim
exemption because the debt arose out of that same family home.
Another example: You borrowed money from the bank. You
mortgaged your house. Later on, you cannot pay the loan. The
bank foreclosed the mortgage. You cannot argue that your
house cannot be levied. Kaya nga may utang ka because of your
house.
Since you mortgaged it, that is not covered by the exemption.
Q: What is the REASON behind this exemption?
A: The reason for this exemption is PUBLIC POLICY. And
common sense no? – the debtor should pay but this should not
deprive him of a means to earn his living. You can levy on his
property but not to the extent of depriving him of his provisions
for support, means of livelihood by throwing him on to the
street, homeless, penniless,
despondent, dejected, mournful, melancholy, forlorn…
LIFETIME OF WRIT OF EXECUTION – FIVE (5)
YEARS
Sec. 14. Return of writ of execution. - The
writ of execution shall be returnable to
the court issuing it immediately after the
judgment has been satisfied in part or in
full. If the judgment cannot be satisfied
in full within thirty (30) days after his
receipt of the writ, the officer shall report
to the court and state the reason
therefor. Such writ shall continue in
effect during the period within which the
judgment may be enforced by motion.
The officer shall make a report to the
court every thirty (30) days on the
proceedings taken thereon until the
judgment is satisfied in full, or its
effectivity expires. The returns or
periodic reports shall set forth the whole
of the proceedings taken, and shall be
filed with the court and copies thereof
promptly furnished the
parties. (11a)
Under the OLD RULE, the lifetime of a writ of execution is only
60 days. After that, expired na yung writ. The sheriff has to use
the writ to levy on the property of the defendant within 60 days.
If the defendant has no property at present, and the writ has
already expired, and assuming that there will be some
properties found in the future, the procedure under the old
rules is, the plaintiff has to file a motion for an ALIAS WRIT of
execution, because once it is issued, it is again good for another
60 days.
Under the PRESENT RULE, the 60-day period is already
obsolete. The effectivity now of a writ of execution is, for as long
as the judgment may be enforced by motion. And under Section
6, a judgment may be enforced by motion within five (5) years. So
in effect, the writ of execution is valid for FIVE (5) years. The
lifetime now has been extended from 60 days to 5 years.
Of course, as much as possible, the writ must be enforced
within 30 days and after that, the sheriff will tell the court
about what happened after 30 days.
So, the sheriff says based on the RETURN, “Wala pang property
ang defendant.” Now, he just keeps on holding the writ. And
maybe after one or two years, meron na’ng property ang
defendant, he can now enforce the writ. But definitely, there is
no need for the defendant to go back to the court to ask for
another alias writ of execution because the writ can still be
enforced – for as long as the judgment may be enforced by
motion.
Although every 30 days, the sheriff has to make a periodic
report with the court. I do not know if the sheriffs here follow
this procedure. But definitely, a writ is good for 5 years and in
every 30 days, the sheriff has to make a report.
NOTICE OF SALE
Sec. 15. Notice of sale of property on
execution. - Before the sale of property on
execution, notice thereof must be given as
follows:
(a) In case of perishable property, by posting
written notice of the time and place of the
sale in three (3) public places, preferably in
conspicuous areas of the municipal or city
hall, post office and public market in the
municipality or city where the sale is to
take place, for such time as may be
reasonable, considering the character and
condition of the property;
(b) In case of other personal property, by
posting a similar notice in the three (3)
public places above-mentioned for not less
that five (5) days;
(c) In case of real property, by posting for
twenty (20) days in the three (3) public
places above-mentioned a similar notice
particularly describing the property and
stating where the property is to be sold,
and if the assessed value of the property
exceeds fifty thousand (P50,000.00) pesos,
by publishing a copy of the notice once a
week for two (2) consecutive weeks in one
newspaper selected by raffle, whether in
English, Filipino, or any major regional
language published, edited and circulated
or, in the absence thereof, having general
circulation in the province or city;
(d) In all case, written notice of the sale shall
be given to the judgment obligor, at least
three (3) days before the sale, except as
provided in paragraph (a) hereof where
notice shall be given at any time before the
sale, in the same manner as personal
service of pleadings and other papers as
provided by section 6 of Rule 13.
The notice shall specify the place, date and
exact time of the sale which should not be
earlier than nine o'clock in the morning
and not later than two o'clock in the
afternoon. The place of the sale may be
agreed upon by the parties. In the absence
of such agreement, the sale of real
property or personal property not capable
of manual delivery shall be held in the
office of the clerk of court of the Regional
Trial Court or the Municipal Trial Court
which issued the writ or which was
designated by the appellate court. In the
case of personal property capable of
manual delivery, the sale shall be held in
the place where the property is located.
(18a)
Auction sale follows levy. There must be notices because auction
sale is open to the public. Notices must be posted in 3 public
places preferably in the municipal hall, post office and public
market. In paragraph [c], if the property to be sold is REAL
property, the notices must describe the property, its location,
assessed value if exceeding P50,000. Aside from notices, the law
requires PUBLICATION in a newspaper so that many people can
read it.
You try to go there in the Hall of Justice, may bulletin board
diyan sa labas. Notices are posted there. If you are interested in
buying something, para mura, tingnan mo diyan.
The law is very detailed now. The notice must specify the date of
the sale, time, place etc. And the SC ruled that these
requirements are to be strictly complied with.
For example: You do not comply with the posting in 3
conspicuous places. Dalawa lang sa iyo, that is VOID. The SC
said the requirements of the law for the holding of the public
auction should be strictly followed. Why? Because in a public
auction, you are depriving somebody of his property – the
judgment debtor. So, all the requirements of the law intended to
deprive the owner of his ownership over his property should be
followed.
Illustration based on Dean’s experience
TERCERIA (THIRD-PARTY CLAIM)
SECTION 16. Proceedings where property
claimed by third person. – If the property
levied on is claimed by any person other
than the judgment obligor or his agent,
and such person makes an affidavit of his
title thereto or right to the possession
thereof, stating the grounds of such right
or title, and serves the same upon the
officer making the levy and a copy thereof
upon the judgment obligee, the officer
shall not be bound to keep the property,
unless such judgment obligee, on demand
of the officer, files a bond approved by the
court to indemnify the third-party
claimant in a sum not less than the value
of the property levied on. In case of
disagreement as to such value, the same
shall be determined by the court issuing
the writ of execution. No claim for
damages for the taking or keeping of the
property may be enforced against the bond
unless the action therefor is filed within
one hundred twenty days from the date of
the filing of the bond.
The officer shall not be liable for damages for
the taking or keeping of the property, to any
third-party claimant if such bond is filed.
Nothing herein contained shall prevent such
claimant or any third person from
vindicating his claim to the property in a
separate action, or prevent the judgment
obligee from claiming damages in the same
or a separate action against a third-party
claimant who filed a frivolous or plainly
spurious claim.
When the writ of execution is issued in
favor of the Republic of the Philippines, or
 any officer duly representing it, the filing
of such bond shall not be required, and in
case the sheriff or levying officer is sued
for damages as a result of the levy, he shall
be represented by the Solicitor General
and if held liable therefore, the actual
damages adjudged by the court shall be
paid by the National Treasurer out of such
funds as may
be appropriated for the purpose. (17a)
Section 16 is a third-party claim procedure in execution. In
Spanish, it is called the remedy of TERCERIA.
ILLUSTRATION: Lolo decided to go on a prolong vacation and
he entrusted to Karen (ang paborito ni Lolo) all his personal
property like appliances – TV, refrigerator, car, etc. Karen used
the property owned by Lolo while he was not around. Unknown
to Lolo, Karen has a pending civil case filed by Gina. Gina
obtained a judgment against Karen. There was levy on
execution. The sheriff went to the premises of Karen, he found
all these properties and he enforced the levy.
Lolo came home and went to get the property from Karen.
Karen said, they were all levied by the sheriff. Lolo is a person
who is not the defendant but his properties were erroneously
levied because the sheriff thought they belong to Karen who was
in possession of them.
Q: What is the remedy of Lolo who is not a defendant?
A: The remedy is to apply Section 16, Rule 39 – You file with the
sheriff, copy furnish Gina, what is known as the third-party
claim or TERCERIA. Terceria is an affidavit asserting that he is
the owner of the property levied. So with that the sheriff is now
placed on guard because the sheriff may be held liable if he
continues to sell the property of the defendant. So, he is not
bound to the proceedings regarding the sale unless the
judgment obligee, on demand of the sheriff, files a bond
approved by the court to indemnify a third party claimant in the
sum not less than the value of the property levied on.
Suppose sabi ni Gina: “Huwag kang maniwala diyan.
Kalokohan iyan. Drama lang yan ni Karen at Lolo. Proceed with
the auction sale!” Gina has to file a bond if he insists that the
auction sale must proceed. Gina must put up a bond approved
by the court to indemnify the third-party claimant, a sum not
less than the value of the property. If the property is worth half
a million, the bond must also be half a million. Then auction
sale may proceed because there’s already a bond to answer for
the damages. The sale may go on despite the third party claim.
THIRD-PARTY CLAIM vs. THIRD PARTY
COMPLAINT
Now, do not confuse a third-party claim under Rule 39 with a
thirdparty complaint under Rule 6.
Q: What is a third-party complaint under Rule 6?
A: A third-party complaint under Rule 6 is a PLEADING filed by
a defendant against the third person not a party to the action
for contribution, indemnity, subrogation, or any other relief in
respect of the plaintiff’s complaint.
Q: What is a third-party claim under Rule 39?
A: A third-party claim (terceria) under RULE 39 is an AFFIDAVIT
made by a third person who claims to be entitled to the property
in the custody of a sheriff by virtue of a writ of execution.
The one who files a third party claim is technically called third-
party CLAIMANT. The one who files a third party complaint is
called thirdparty PLAINTIFF. I notice that even in SC decisions,
the SC commits that lapse: “The defendant filed a third party
complaint” or sometimes “third party claimant.” But actually, the
correct term is third-party plaintiff.
Q: Now, under the law, where will you file your third-party
claim?
A: You file it with the sheriff although legally, it is considered as
it is filed in the court because the sheriff is only an agent of the
court. The sheriff does not have the power to rule on the legal
issues. Only the judge can. And it is the court which decides on
the validity of a third party claim.
Q: If I am the third person and I want to vindicate my claim to
that property, is a third party claim procedure the only remedy I
have under the law? Even if there’s a third party claim, auction
sale may proceed as long as there’s a bond. But I want the
auction sale not to proceed and I want the property to be
returned in my favor, do I have any other remedy?
A: YES. Second paragraph: “Nothing herein contained shall
prevent such claimant or any third person from vindicating his
claim to the property in a SEPARATE ACTION.” So, the remedy of
third-party claim is NOT exclusive. There is nothing in Section
16 which says that a third person is deprived of a right to file a
separate action.
As the lawyer of Lolo, I have another option: instead of filing a
third party claim, I would file a case in court – the separate case
would name Gina as the defendant. The cause of action is that
the sheriff mistakenly or erroneously levied the properties not
owned by Karen because I am the real owner. Since there was a
mistaken levy, I am also asking the court to declare the levy as
null and void, the auction sale should not proceed.
The court might rule in my favor, so a separate action is
allowed. Thus, a third-party claim is not the only remedy
available under the law for the third party claimant.
The second part also contains a new provision, “…or prevent the
judgment obligee from claiming damages in the same or a
separate action against a third party claimant who files a
frivolous or plainly spurious claim.”
Remember that it is possible for a third-party claimant to be a
dummy when it is a frivolous claim, without basis or spurious,
para tulungan lang niya ang defendant. There are people like
that. Now, under the new law, the prevailing party has the right
to claim damages against the third-party claimant for filing
frivolous claims. He can claim the damages in the same action
or in a separate action.
Now, many people do not really understand what is a third-
party claim, even some lawyers:
Q: Suppose I am the lawyer of Lolo, bakit pa ako mag-file ng
another case? Can I not just complain to the court which
rendered the decision? Can I not just file a motion asking the
judge to order the release of the property? Is a separate action
not a violation of the rule against multiplicity of suits?
A: NO! You cannot bring out the issue to determine the
ownership of the property. INTERVENTION here is not proper.
[Is this not a ground for intervention? GROUNDS FOR
INTERVENTION:
1) the intervenor has legal interest in the subject matter;
2) the intervenor has an interest in the success of either
parties;
3) the intervenor has an interest against both parties;
and
4) The intervenor is adversely affected by a distribution of
a property in the custody of a court or an officer
thereof.]
The SC said YOU CANNOT INTERVENE because under Rule 19,
an intervention can only be done at any time before judgment.
But here in Rule 39, we are now on the stage of execution –
meron ng judgment! Tapos na ang kaso…. [Gago!!] Intervention
comes to late. The judge has already decided the case. Now,
bakit bigyan mo naman siya ng bagong trabaho? That’s another
issue different from a case already tried. So, a separate action is
the proper remedy.
On the other hand, such doctrine should be reconciled with
what
the SC said in the case of
SY vs. DISCAYA – 181 SCRA 378
HELD: If your property was erroneously levied under Rule 39,
you can seek relief from the very same court which rendered the
judgment by simply filing a motion to question the actuation of
the sheriff, because execution is part of the process in that case
and the sheriff is an officer of the court and the court has the
complete control over the actuation of the sheriff. Therefore,
why require the 3rd-party to file another action when he can
seek relief in the same case? Meaning, the third party can seek
relief in the same case but only to determine whether the sheriff
acted rightly or wrongly, BUT not for the purpose of determining
the issue of ownership. Questions of ownership cannot be
decided here. There must be a separate action for the issue of
ownership.
“A third person whose property was seized by a sheriff to answer
for the obligation of the judgment debtor may invoke the
supervisory power of the court which authorized such
execution. Upon due application by the third person and after
summary hearing, the court may command that the property be
released from the mistaken levy and restored to the rightful
owner or possessor. What said court can do in these instances,
however, is limited to a determination of whether the sheriff has
acted rightly or wrongly in the performance of his duties in the
execution of judgment, more specifically, if he has indeed taken
hold of property not belonging to the judgment debtor. The
court does not and cannot pass upon the question of title to the
property, with any character of finality. It can treat of the matter
only insofar as may be necessary to decide if the sheriff has
acted correctly or not.”
So, the court that renders the judgment cannot decide on the
issue of ownership to a third person. So your remedy is to file
another case. But in the case of DISCAYA, the court which
renders the judgment can determine whether the sheriff has
acted wrongly or correctly. And if it is wrong it can order the
property erroneously levied to be released without need of filing
a separate action.
Q: So how do you reconcile the two doctrines?
A: If it is obvious that the sheriff committed a mistake – 100%
mistake, i.e. he levied property belonging to a third person who
is not a defendant – to require a third person to go to court and
file another case will be tedious. Why can he not seek relief from
the same court? Anyway if it is very obvious that the sheriff
acted wrongly, that is only incidental.
But when the issue is whether the property is owned by the
defendant or the third person, and the issue is controversial –
who is the rightful owner – that cannot be decided summarily
by the court which rendered decision. It should be threshed out
in an independent separate civil action. So that will be the
consideration.
The SC summarized all these remedies in the 1995 case of:
EVANGELISTA vs. PENSERGA – 242 SCRA 702
HELD: The remedies of a third person whose property was
seized by the sheriff to answer for the obligation of a judgment
obligor are the following:
1) Invoke the supervisory power of the court which
authorized such execution (Sy vs. Discaya);
2) Terceria - third party claim (Rule 39, Section 16); and
3) Any proper action to vindicate his claim to the
property, meaning a separate civil action. (second
paragraph, Section 16, Rule 39)
So these are the three remedies of a third person whose
property was seized by a sheriff to answer for the obligation of
another person.
Sec. 17. Penalty for selling without notice, or
removing or defacing notice. - An officer
selling without the notice prescribed by
section 15 of this Rule shall be liable to
pay punitive damages in the amount of
five thousand (P5,000.00) pesos to any
person injured thereby, in addition to his
actual damages, both to be recovered by
motion in the same action; and a person
willfully removing or defacing the notice
posted, if done before the sale, or before
the satisfaction of the judgment if it be
satisfied before the sale, shall be liable to
pay five thousand (P5,000.00) pesos to any
person injured by reason thereof, in
addition to his actual damages, to be
recovered by motion in the same action.
(19a)
Notices in the auction sale should be posted in three public
places. For example, you go to the hall of justice. You can see
there a bulletin board, maraming nakalagay, half man niyan
mga notice of public aution ba. Now, do not go there and kunin
ang mga papel doon. Baka multahan ka. You are not supposed
to remove or deface them.
Sec. 18. No sale if judgment and costs paid. -
At any time before the sale of property on
execution, the judgment obligor may
prevent the sale by paying the amount
required by the execution and the costs
that have been
incurred therein. (20a)
Q: Can the debtor stop the auction sale? Is there a way for the
debtor to prevent the sale of his property?
A: YES, if the obligor pay the amount required by the execution
and the costs – bayaran mo lahat ang utang mo, ‘di wala na.
That’s what the law says. For example, the bank is foreclosing
your mortgage and sell the property at public auction. To stop
the bank from proceeding with the sale, you go to the bank and
pay all your obligations. So, wala ng auction sale. But you have
to pay all.
“Kalahati lang ang bayaran ko.” Ah, hindi puydi yan.
Sec. 19. How property sold on execution; who
may direct manner and order of sale. All sales
of property under execution must be made
at public auction, to the highest bidder, to
start at the exact time fixed in the notice.
After sufficient property has been sold to
satisfy the execution, no more shall be
sold and any excess property or proceeds
of the sale shall be promptly delivered to
the judgment obligor or his authorized
representative, unless otherwise directed
by the judgment or order of the court.
When the sale is of real property,
consisting of several known lots, they
must be sold separately; or, when a portion
of such real property is claimed by a third
person, he may require it to be sold
separately. When the sale is of personal
property capable of manual delivery, it
must be sold within view of those
attending the same and in such parcels as
are likely to bring the highest price. The
judgment obligor, if present at the sale,
may direct the order in which property,
real or personal, shall be sold, when such
property consists of several known lots or
parcels which can be sold to advantage
separately. Neither the officer conducting
the execution sale, nor his deputies, can
become a purchaser, nor be interested
directly or indirectly in any purchase at
such sale. (21a)
Execution sale shall be done at public auction. The public is
invited to bid kaya may public notice. There are even
publication for real property “TO THE HIGHEST BIDDER.” How
does it happen? Normally, ang unang magbi-bid diyan is iyong
creditor. And normally, his bid will be equal to the judgment in
his favor. For example, the judgment against B is P1 million
which includes principal and interest. Ang bid ko P1 million din.
Okay lang, bahala ka kung sinong mas mataas diyan. That is
how it normally happens.
Q: Now, suppose there are many properties levied. What is the
process?
A: You sell them one by one. Hindi pwede sabay-sabay.
[Maysamaysa laeng balong!] After sufficient property has been
sold and that is enough to satisfy the debt, then do not sell
anymore. Do not sell more than what is necessary to satisfy the
judgment.
“When the sale is of real property, consisting of several
known lots, they must be sold separately.”
Years ago, I witnessed an auction sale of subdivision here.
Obviously, the owner of the subdivision could not pay his
account. So there was a public auction. Of course, the
subdivision consists of more than 100 lots — iba-iba ang
location, may mapa eh. Now, you cannot say, “Alright, 150 lots.
Pila man?” Hindi puydi iyan. Isa-isa dapat – Lot #1, lot #2, lot
#3… “kaya pa ba iyan? I may be interested to buy only one lot.”
So, lot #1, highest bidder, lot #2…until the proceeds are enough
to satisfy the account. So hindi pwedeng one time, garapalan
iyan, kapal ng sheriff niyan. “Mga 170 lots…” ah hindi pwede
iyan—isa-isa dapat. That is how tedious it is.
The law says, the debtor, if he is present, he can intervene. He
says, “Alright, unahin mo muna ito…” because he may know of
somebody who is willing to buy his property. So he can tell the
sheriff, “If you want to sell unahin mo muna ito because merong
malaking bayad yan eh…” in order for his other properties to be
saved from the execution.
Now, the last paragraph, the last sentence says, “neither the
officer conducting the execution sale, nor his deputies, can
become a purchaser, nor be interested directly or indirectly in any
purchase at such sale”. So the sheriff and his deputy cannot
participate in the auction, these are prohibited interest.
I think there is also a prohibition in the Civil Code on this — on
prohibited sales. The judge cannot be interested in the sale of a
property which is the subject matter of the litigation. The lawyer
here cannot purchase a property involving a case which he
handled, to prevent conflict of interest.
Sec. 20. Refusal of purchaser to pay. If a
purchaser refuses to pay the amount bid
by him for property struck off to him at a
sale under execution, the officer may
again sell the property to the highest
bidder and shall not be responsible for any
loss occasioned thereby; but the court
may order the refusing purchaser to pay
into the court the amount of such loss,
with costs, and may punish him for
contempt if he disobeys the order. The
amount of such payment shall be for the
benefit of the person entitled to the
proceeds of the execution, unless the
execution has been fully satisfied, in
which event such proceeds shall be for the
benefit of the judgment obligor. The
officer may thereafter reject any
subsequent bid of such purchaser who
refuses to pay. (22a)
Auction sale: “We are now going to sell this piece of property.
Alright, highest bidder—P10,000, next P11,000, P12,000,
P13,000.” Sabi noong isa, “Alright, P40,000!” Sheriff: “Any other
bid?—wala na? Ok wala na! then, it’s sold to you. Saan ang pera
mo?” Bidder:
“Wala akong pera, biro lang iyon.”
My golly! Pwede kang i-contempt niyan ba! [nagpapatawa, hindi
naman kalbo!] You can be declared in contempt of court. Hindi
ito biruan. This is a proceeding. So we will repeat the procedure
kasi wala man. Kalokohan pala ito. Bwiset!
Q: May he bid again?
A: No more. The officer may thereafter reject any subsequent
bid of such purchaser who refused to pay. So do not fool around
there when you make a bid. You must be serious and you must
be ready to pay for you bid.
Sec. 21. Judgment obligee as purchaser.
When the purchaser is the judgment
obligee, and no third-party claim has been
filed, he need not pay the amount of the
bid if it does not exceed the amount of his
judgment. If it
does, he shall pay only the excess. (23a)
Q: Can the judgment obligee – the creditor-plaintiff – participate
in the auction sale?
A: YES, under Section 21. The sale is open to the public. As a
matter of fact, in normal auction sale, the first bidder is the
plaintiff himself.
Q: Suppose, he is the highest bidder. So the property is declared
sold to him. Is he obliged to pay his bid?
A: GENERAL RULE: NO. Why? You simply apply the law on
compensation – I owe you money on the purchase price for your
property but you also owe me money based on the judgment. So
quits na tayo. Wala ng bayaran! Iyang property na ang
pinakabayad mo.
EXCEPTION: Two (2) instances when obligee may be required to
pay for his bid:
1) When his bid is higher than the judgment. So he has to
pay the cash for the excess or
EXAMPLE: The judgment in my favor is P1 million, my
bid is P1.2 million and I’m the highest bidder. So I have
to pay you the balance, the P200,000 because that is
more than the judgment in my favor.
2) when the property which is to be sold is a subject of a
third party claim because it is really controversial
whether the property is really owned by the judgment
debtor.
So, if there is a 3rd party claim, he has to pay because it
is controversial - as to who really is the owner of the
property. Of course, iyong pera naka-deposit iyan. Your
money will be returned to you if it turns out the claim is
frivolous. If the third party claim turns out to be valid, it
will be given to the real owner because the property that
you bought turned out to be owned by somebody who is
not your debtor.
Sec. 22. Adjournment of sale. By written
consent of the judgment obligor and
obligee, or their duly authorized
representatives, the officer may adjourn
the sale to any date and time agreed upon
by them. Without such agreement, he may
adjourn the sale from day to day if it
becomes necessary to do so for lack of
time to complete the sale on the day fixed
in the notice or the day to which it was
adjourned. (24a)
Suppose the auction sale was scheduled today. Hindi natapos
because there are many properties to be sold like 200 lots. Then
we can continue tomorrow.
Suppose we will continue next week. Then both parties must
agree by written consent of the judgment obligor and obligee if
we will postpone it to another date na mas malayo.
Q: Do you know why these things are very important?
A: Because you already advertised that it will be held on this
day. So any change on the date has to be strictly complied
with. That’s the reason behind these.
Q: Now, what properties can be sold at public auction?
A: It’s either personal property or real property. We are sure
about that.
TWO TYPES OF PERSONAL PROPERTY:
1) one capable of manual delivery; and
2) one not capable of manual delivery – iyong mga
intangibles ba!
Q: What is the procedure for the sale of personal property
capable of manual delivery and one not capable of manual
delivery?
A: You have Section 23 and Section 24.
Q: When it comes to real property, what is the procedure?
A: The procedure is Section 25.
So let’s go over there, conveyance to purchaser of personal
property capable of manual delivery. Like a car and appliance or
any other tangible object.
Sec. 23. Conveyance to purchaser of personal
property capable of manual delivery. When
the purchaser of any personal property,
capable of manual delivery, pays the
purchase price, the officer making the
sale must deliver the property to the
purchaser and, if desired, execute and
deliver to him a certificate of sale. The
sale conveys to the purchaser all the
rights which the judgment obligor had in
such property as of the date of the levy on
execution or preliminary attachment.
(25a)
Sec. 24. Conveyance to purchaser of personal
property not capable of manual delivery.
When the purchaser of any personal
property, not capable of manual delivery,
pays the purchase price, the officer
making the sale must execute and deliver
to the purchaser a certificate of sale. Such
certificate conveys to the purchaser all the
rights which the judgment obligor had in
such property as of the date of the levy on
execution or preliminary attachment. (26a)
Q: What is the procedure for the sale of property capable of
manual delivery?
A: When the property is CAPABLE OF MANUAL DELIVERY, and
you are the highest bidder, I will deliver the car to you, and
execute and deliver to you a certificate of sale. The certificate of
sale should be signed by the sheriff to prove that you are the
highest bidder. And with that certificate of sale, you can register
that with the LTO. Automatically, the LTO will transfer the
ownership and the registration of the car in your name.
Q: What is the procedure for the sale of property NOT CAPABLE
OF MANUAL DELIVERY? Mga intangible assets?
A: There is nothing to physically give you. But according to
Section 24, the officer making the same must execute and
deliver to the purchaser a certificate and that is actually
tantamount to delivery already.
Q: When you buy a personal property at an auction sale and the
sheriff executes a certificate of sale in your favor, do you become
the owner of the property?
A: Both sections say, “the sale conveys to the purchaser all the
rights which the judgment obligor have in such property as of the
date of the levy on execution.” At the sale, you acquire all the
rights which the obligor had in such property. You become the
owner because you acquire the judgment obligor’s right of
ownership over such property.
BUT suppose the obligor holding the property is not the owner
of the property although he has some right over the property
and his rights where sold, then you only acquire whatever rights
he has over the property. You do not acquire ownership. A
spring cannot rise higher than its source.
EXAMPLE: You are the defendant but you enjoy rights over the
property as usufructuary – you are the beneficial owner of the
property but not the naked owner. And your rights as
usufructuary were levied. I am the purchaser. Can I acquire
naked ownership? Of course NOT. I only acquire beneficial
ownership. I only acquire whatever right the debtor has over the
property.
The SC made a commentary on that issue on the nature of the
sheriff’s sale and one of which is the case of
LEYSON vs. TAÑADA – 109 SCRA 66 [1981]
HELD: “At a sheriff’s sale they do not sell the land advertised to
sell, although that is a common acceptation, but they simply
sell what interest in that land the judgment debtor has; and if
you buy his interest, and it afterwards develops that he has
none, you are still liable on your bid, because you have offered
so much for his interest in open market, and it is for you to
determine before you
bid what is his interest in the property.”
So, it is for you to determine what his interest is before you bid.
That is why you look at the sheriff’s notice of sale, meron mang
warning ba: “Notice to prospective bidders. You are advised to
find out whatever interest the debtor has.”
For EXAMPLE: You buy the land and it turns out na hindi pala
mayari iyong taong iyon, iba ang rights niya. Then you are to
uphold his rights, “Ah, I will hold the sheriff liable!” No you
cannot. There is no warranty here on ownership.
So, do not confuse this with private sale of property—warranty
against eviction—wala iyan sa sheriff’s sale. The sheriff does not
warrant the ownership of the property. The law only warrants
the guarantee that you will acquire whatever interest he has.
And if his interest is less than what you expect, pasensha ka.
This is a case of CAVEAT EMPTOR – let the buyer beware. That
is the thing you have to remember about action sale.
Sec. 25. Conveyance of real property;
certificate thereof given to purchaser and filed
with registry of deeds. Upon a sale of real
property, the officer must give to the
purchaser a certificate of sale containing:
(a) A particular description of the real
property sold;
(b) The price paid for each distinct lot or
parcel;
(c) The whole price paid by him;
(d) A statement that the right of redemption
expires one (1) year from the date of the
registration of the certificate of sale.
Such certificate must be registered in the
registry of deeds of the place where the
property is situated. (27a)
If the property sold at public auction is a piece of land (real
property), the sheriff will execute in your favor what is known as
the sheriff’s CERTIFICATE OF SALE. Ano’ng nakalagay diyan? It
is practically what a normal deed of sale provides – the
description of the land, the property sold, the whole price paid,
the lot if there are different parcels, how much per parcel.
The important paragraph is [d]: “A statement that the right of
redemption expires one (1) year from the date of the registration
of the certificate of sale”.
Q: What is the main difference between a sale of personal
property under Section 23 and sale of real property under
Section 25?
A: When the property sold at public auction is real property, the
debtor has one (1) year to redeem the property. That’s what you
call the RIGHT OF REDEMPTION from the purchaser. But if the
property sold at public auction is personal property, like cars or
appliances, there is no right of redemption.
There is no right of redemption in personal property. That is
only recognized in real property. So if your (personal) property is
sold at public auction, and then there is a highest bidder, you
cannot say, “Anyway, pwede ko namang bawiin iyon.” NO, wala
iyang bawi, kanya na yan. But if the property sold at public
auction is real property, that is not kissing your land goodbye.
You have one year to redeem it. That is your last chance.
Q: Summary: If you are the highest bidder, when do you
acquire ownership of the property sold in a auction sale?
A: It DEPENDS whether the property sold is personal or real:
a) If it is PERSONAL PROPERTY, the title is transferred
after payment of the purchase price and delivery upon
the purchaser. Delivery is either physical or symbolic;
(Sections 23 & 24)
b) If it is REAL PROPERTY, the title is transferred, not
after the auction sale, but after expiration of the right
to redeem. (Section 25)
There is no right of redemption under personal property. It can
only be exercised in real property.
Now, take note that the period to redeem is ONE YEAR FROM
THE DATE OF THE REGISTRATION of the certificate of sale in
the office of the registrar of deeds. It is NOT from the date of the
auction sale.
Under the old law, malabo eh: “from the date of sale.” Anong
sale? Date of the auction sale or date of the issuance of
certificate of sale? According to the SC, the date of the
registration. That is the start of the counting. Kaya nga if there
is a sale in your favor, pag idelay mo ang registration, ikaw ang
kawawa because the longer you delay it, the redemption period
is being stretched. Instead of cutting after one year, period of
redemption has not been cut off kaya there must be a
registration.
Under the present rule, the right of redemption expires after one
(1) year from the date of the registration of the certificate of sale.
Under the old law, it expires after twelve (12) months.
Q: Is the ‘one year’ under the present rule and the ‘12 months’
under the old rules the same?
A: NO, and we know that 12 months is 360 days. One month is
30 days times 12 is 360 days. But one year is 365 days. So they
are not the same.
That’s why before, the redemption period for extrajudicial
foreclosure of mortgage is one year. And the redemption in
execution under Rule 39 is 12 months. So there is a difference.
But NOW, pareho na.
That’s why the old case of STATE INVESTMENT HOUSE when
the SC made the distinction between the one year period for
mortgage and the 12 months period under Rule 39 is already
MEANINGLESS because the one year period. NOW is uniform.
Q: Can you attack the validity of an auction sale?
A: GENERAL RULE: NO, you cannot attack the auction sale on
the presumption that every fair sale is final. There is a
presumption of regular performance of duty by the sheriff.
EXCEPTION: When an execution sale may be set aside:
1) When it is shown from the nature of the irregularity or
from intrinsic facts injury resulted therefrom. (Navarro
vs. Navarro, 76 Phil. 122) Meaning, there were serious
irregularities committed by the officer in conducting
the
sale like no publication, no notice, no prior levy, etc.;
2) When the price obtained at the execution sale is
shockingly inadequate and it is shown that a better
price can be obtained at a resale. (Barrozo vs.
Macadaeg, 83 Phil. 378) Meaning, the highest bid is
shockingly inadequate.
EXAMPLE: I owed you for P100,000 – P100,000 ang
judgment! And what is levied is a brand new Mercedes
Benz. So sobra na yon na pambayad sa utang. But the
highest bid is P30,000. Just imagine the highest bid is
30,000, tapos meron pang deficiency judgment for
P70,000 – of course, there is something wrong here.
So, that is an exception, no! That is, when the price
obtained at the execution sale is SHOCKINGLY
INADEQUATE to the senses and it is shown that a
better price can be obtained.
‘Shocking to the senses’ means hindi naman yung the
difference is very slight.
EXCEPTION TO THE EXCEPTION: The rule that you can
question the validity of the auction sale if the price obtained is
shockingly inadequate applies ONLY when the property sold is
PERSONAL property. The exception does not apply when the
property sold is real property because if the property sold is a
personal property, there is no right of redemption. But if the
property sold is real property, you cannot complain because,
anyway, you have one year to pay and the redemption price is
lower. So, you are not really prejudiced. So why are you
complaining? That’s what the SC
said in the case of
RAMOS vs. PABLO – 146 SCRA 5 [1986]
HELD: “A reading of plaintiffs' (petitioners') complaint shows
that inadequacy of price was raised as one of the issues.
Assuming that the price was shockingly low, the same cannot
vitiate the auction sale for redemption would be comparatively
easier.”
That is because the property sold in RAMOS is real property.
Pero kung personal property, I think it is really unfair. You lose
the property forever with a very small amount.
Sec. 26. Certificate of sale where property
claimed by third person. When a property
sold by virtue of a writ of execution has
been claimed by a third person, the
certificate of sale to be issued by the
sheriff pursuant to sections 23, 24 and 25
of this Rule shall make express mention of
the existence of such
third-party claim. (28a)
If the property sold at public auction is a subject of a third party
claim under Section 16, the certificate of sale to the property is
issued subject to the outcome of the third party claim by a
stranger.
Sec. 27. Who may redeem real property so
sold. Real property sold as provided in the
last preceding section, or any part thereof
sold separately, may be redeemed in the
manner hereinafter provided, by the
following persons:
(a) The judgment obligor, or his successor in
interest in the whole or any part of the
property;
(b) A creditor having a lien by virtue of an
attachment, judgment or mortgage on the
property sold, or on some part thereof,
subsequent to the lien under which the
property was sold. Such redeeming
creditor is
termed a redemptioner. (29a)
That is an important section.
Q: Who are entitled to redeem real property?
A: There are two (2):
1) The judgment obligor or his successor-in-interest; and
2) A creditor having a lien by virtue of an attachment,
judgment or mortgage on the property sold,
subsequent to the lien under which the property was
sold. He is know as the REDEMPTIONER.
JUDGMENT OBLIGOR OR HIS SUCCESSORS-IN-
INTEREST
Judgment obligor is clear – the defendant who lost the case –
the defendant whose property was levied. Or, his successor-in-
interest. For EXAMPLE: During the one year period to redeem,
the judgment debtor died. So it could be his heirs, his children,
his spouse who could exercise the right to redeem because they
step into his shoes. Also, successor-in-interest would also refer
to a person to whom the obligor assigned or transferred his
right to redeem.
Q: Can the defendant sell, aside from transferring, his right to
another person?
A: YES, because the right to redeem is property by itself. My
right to redeem is also property such as an interest to the real
property which can be the subject matter of a sale.
EXAMPLE: “Alright, may property ako worth P5 million. Na-
sheriff for P2 million. Wala na, hindi ko na kaya. Ibenta ko sa
iyo for P3 million. Give me P1 million cash at ikaw na ang mag
redeem sa purchaser.” Ginansiya ka pa rin di ba? P5 million
gud iyon. So I can sell, and once I sell the right to redeem to
you, you are classified as successor-in-interest for the judgment
obligor.
REDEMPTIONER
Q: Define redemptioner.
A: A redemptioner is a creditor having a lien by virtue of an
attachment, judgment or mortgage on the property sold, or on
some part thereof, subsequent to the lien under which the
property was sold.
ILLUSTRATION: Suppose there is a title owned by X and he has
four (4) creditors. Let’s say the property is worth P10 million
and he owes A for P2 million. So A levied the property. Now
there’s another judgment in favor of B and there is no other
property, ito na lang. So ang ginawa ni B, tinatakan niya –
another P2 million.
Under the Law on Land Titles and Deeds, B has inferior rights.
In other words, the right of A is superior to the right of B. A has
no obligation to respect the right of B but B is obliged to respect
the right of A. And Assuming that there is a third creditor – C –
for another P2 million. Thus, subsequent holder din si C. If D is
also a creditor, apat na sila.
Of course, the right of A is superior. He levies the property, may
one year to redeem. Sabi ni X, “Wala na akong property, so ano
pang pakialam ko kay B?” Suppose X will not redeem, so A
becomes the owner after one year. What happens to B, C and
D? Bura lahat kayo because you are underneath. A has no
obligation to respect your liens.
In other words, A acquires the entire property for only P2M
because hindi na interesado si X. Shempre si B interesado. So B
will pay A within the redemption period para matanggal si A.
Yung utang ni X na P2M binayaran niya kay A. So P4 million na
ang hawak ni B. And B will now be the number one. B will now
acquire the property. Pero sabi ni C, “Hindi pwede iyan, lugi
ako!” Kasi pagnaacquire na ni B ang property, patay na naman
si C and D. Sabi ni C, “Bababuyin, ah este… Babayaran kita
(B)! O ayan ang P4 million.
Saksak mo sa baga mo!” D can do the same thing to C.
Iyan ang tinatawag na redemptioners – people who have lien
subsequent because that is your only way to protect your lien
over the property. Anyway, even if D will pay everybody, hindi
pa rin lugi because the property is worth P10 million. But he
spent P8 million because he had to buy or redeem it from people
who are ahead of him. That is the illustration of redemptioners,
they have a personality or a right to redeem the property from
whoever is ahead of him in order to protect his lien over the
property because if he will not redeem, the quickest one will
acquire the property free from any lien or encumbrance. Eh,
kung wala na yung property? Patay na ako. What property will I
get to satisfy the account wala na akong property, isa nalang.
That is the rule on redemption. That is what Section 27 is all
about.
Take note that redemptioners cannot redeem if the judgment
debtor redeems.
(For Review Class) Now, let us discuss the case of PALICTE vs.
REMOLITE, infa. This case is instructive on the issue of right of
redemption under Rule 39 in relation to special proceedings –
the estate of deceased person. This is what happened:
PALICTE vs. REMOLETE – 154 SCRA 132 [1987]
FACTS: A man lost a case and his properties were levied. So
let’s say his properties were levied for P1 million. But during the
1-year period of redemption, he died. And he is survived by 5
children. And there is an administrator appointed by the court
to administer the properties of the deceased. During the one
period to redeem, one of five children, siguro mayaman,
redeemed the properties of their father.
Take note that only one of the heirs redeemed the entire
property from the judgment creditor- obligee. And one of the
issues raised is whether one heir alone has the personality to
redeem from the creditor the property of the estate when there
is an administrator. Remember, ha – the legal representative
under the law, is the administrator.
ISSUE #1: So, who has the right to redeem? The heir or the
administrator?
HELD: The HEIR has the right to redeem. “At the moment of the
decedent’s death, the heirs start to own the property, subject to
the decedent’s liabilities. In fact, they may dispose of the same
even while the property is under administration. If the heirs
may dispose of their shares in the decedent’s property even
while it is under administration with more reason should the
heirs be allowed to redeem redeemable properties despite the
presence of an
administrator.”
ISSUE #2: Must the one redeeming prove that the other co-
heirs, the administrator and the court expressly agreed to the
redemption? Is it necessary for him to get their consent?
HELD: “There is NO NEED for such prior approval. While it may
have been desirable, it is not indispensable. There is likewise
nothing in the records to indicate that the redemption was not
beneficial to the estate.” Anyway, the estate was benefited. The
property was returned to the estate rather than acquired by the
creditors.
ISSUE #3: How can one specific heir redeem alone when his
interest in the estate is not fixed and determinate pending the
order of distribution by the court? He is just a 1/5 owner and
then he is redeeming everything, how can that be done?
HELD: “It may be true that the interest of a specific heir is not
yet fixed and determinate pending the order of distribution BUT,
nonetheless, the heir’s interest in the preservation of the estate
and the recovery of its properties is greater than anybody else’s,
definitely more than the administrator’s who merely holds it for
the creditors, the heirs, and the legatees.”
ISSUE #4: Can we not consider the administrator as the
judgmentdebtor himself and the only one successor-in-interest?
HELD: NO. “The estate of the deceased is the judgment-debtor
and the heirs who will eventually acquire that estate should not
be prohibited from doing their share in its preservation.”
ISSUE #5: So, sabi ng redeeming heir, “Okey, so now let the
property be registered in my name because pera ko man ang
ginamit. I spent my money in paying the property including the
shares of my brothers and sisters who have no money.” Is the
redeeming heir correct?
HELD: NO. “The motion to transfer the titles of the properties to
the name of the redeeming heir cannot prosper at this time.
Otherwise, to allow such transfer of title would amount to a
distribution of the estate.” That is tantamount to premature
distribution of the estate. You cannot distribute the estate in
favor of one heir immediately.
So, what is the solution? “The other heirs are, therefore, given a
six-month period to join as co-redemptioners in the redemption
made by the petitioner before the motion to transfer titles to the
latter’s name may be granted.”
So meaning, if the other heirs are given 6 months, hindi nyo
mabayaran, pwede na yan, kasi pera man niya ang ginamit.
Sec. 28. Time and manner of, and amounts
payable on, successive redemptions; notice to
be given and filed. The judgment obligor, or
redemptioner, may redeem the property
from the purchaser, at any time within
one (1) year from the date of the
registration of the certificate of sale, by
paying the purchaser the amount of his
purchase, with one per centum per month
interest thereon in addition, up to the
time of redemption, together with the
amount of any assessments or taxes which
the purchaser may have paid thereon after
purchase, and interest on such last named
amount at the same rate; and if the
purchaser be also a creditor having a prior
lien to that of the redemptioner, other
than the judgment under which such
purchase was made, the amount of such
other lien, with interest.
Property so redeemed may again be
redeemed within sixty (60) days after the
last redemption upon payment of the sum
paid on the last redemption, with two per
centum thereon in addition, and the
amount of any assessments or taxes which
the last redemptioner may have paid
thereon after redemption by him, with
interest on such last-named amount, and
in addition, the amount of any liens held
by said last redemptioner prior to his own,
with interest. The property may be again,
and as often as a redemptioner is so
disposed, redeemed from any previous
redemptioner within sixty (60) days after
the last redemption, on paying the sum
paid on the last previous redemption, with
two per centum thereon in addition, and
the amounts of any assessments or taxes
which the last previous redemptioner paid
after the redemption thereon, with
interest thereon, and the amount of any
liens held by the last redemptioner prior
to his own, with interest.
Written notice of any redemption must be
given to the officer who made the sale and
a duplicate filed with the registry of deeds
of the place, and if any assessments or
taxes are paid by the redemptioner or if he
has or acquires any lien other than that
upon which the redemption was made,
notice thereof must in like manner be
given to the officer and filed with the
registry of deeds; if such notice be not
filed, the property may be redeemed
without paying such assessments, taxes,
or liens. (30a)
ILLUSTRATION: Brown Sugar is a judgment obligor. She has
four creditors (A, B, C, and D) and all of them obtained
judgment against her and all of them levied on the same
property. Brown Sugar is given one year from the registration of
the sale to redeem it from A. Now, suppose SUGAR cannot
redeem, B will be the one to redeem because the first
redemptioner and the judgment obligor have one year to redeem
from the date of registration. That is what Section 28 says “the
judgment obligor, or redemptioner.” Now, C is given 60 days to
redeem. After that, wala ng right. Suppose C was able to
redeem, D has another 60 days to redeem from C.
Q: So what is the period of redemption?
A: There are two periods of redemption: The judgment obligor
and first redemptioner are given ONE YEAR from the date of
registration of the certificate of sale to redeem and after that all
subsequent redemptioners are given 60 days.
So the second redemptioner can redeem it within 60 days. So,
within 60 days, the 3rd redemptioner can redeem it. Pasa yan,
in order that the redemptioner can protect their lien over the
property. So, the redemption period is ONE YEAR and 60 DAYS
respectively.
Q: Now, suppose Brown Sugar or B would like to redeem the
property from A. How much will the property be redeemed?
A: Under Section 28, the purchase or the bid price for the
property PLUS one percent per month interest, and
reimbursement for taxes of the property with interest also. But
definitely, the redemption price = the bid price + 1% interest
month. So, if you will redeem after one year, the bid price and
12% of the bid price.
ILLUSTRATION: So kung P1 million ang bid price plus +
P120,000
(1%/month) = P1.12 million
Now there are two interesting cases here which I want you to
remember. The conflicting ruling in PNB vs. CA (140 SCRA 360)
and the case of SY vs. CA (172 SCRA 125). The two cases
involved a foreclosure of mortgage not execution but the Rules
of Court applies. Under the extra-judicial foreclosure of
mortgage Act 3135, the provision of the Rules of Court are also
applicable to redemption in a foreclosure sale. So the provision
in Section 28 also applies to the redemption during an
extrajudicial foreclosure of property.
PNB vs. CA – 140 SCRA 360 [1985]
FACTS: Suppose I will borrow money from the bank and
stipulate an interest at 24% per annum. During the auction
sale, it was sold to the bank. Within one year, you approach me,
gusto mo na iredeem. Magkano ang bid price—P2M plus
interest of 2% per month for the next seven or eight months.
Sabihin ng debtor, “No, 1% lang. Di ba nakalagay sa law 1%
lang.” Pero ang usapan natin is 3% monthly.
ISSUE: So which prevails - the 1% per month under the Rules of
Court or the 2% per month as stipulated in the promissory
note?
HELD: The 1% of the Rules of Court prevails. Why? The rights of
the debtor or creditor, the bank for example, under the
promissory note, or even under the mortgage law, is only good
up to the auction sale. From the moment the auction sale is
finished and there was already a bid, we are now talking of the
one year period to redeem. So the rate in the promissory note is
no longer applicable.
The case of PNB was somehow modified by the SC in the
subsequent case of Sy vs. CA (172 SCRA 125) where the facts
are identical.
SY vs. CA – 172 SCRA 125 [1989]
FACTS: They borrowed money from the bank at 2% a month
and they failed to pay the loan. Thus, there was a foreclosure of
mortgage then there was an execution of sale.
ISSUE: Within the one year period of redemption, pila man ang
interest? The debtor will say 1% but according to the bank, it is
2% as stipulated. Which will prevail?
HELD: The 3% a month stipulated under the mortgage contract
prevails. Why? Because of a special law – Section 78 of the
General Banking Act R.A. 337. Between Section 28 of Rule 39
and Section 78 of the General Banking Act, the latter prevails
because it is a special law. It applies to banks.
“The General Banking Act partakes of the nature of an
amendment to the mortgage law in so far as the redemption
price is concerned. When the mortgagee or the creditor is a
bank or banking credit institution, Section 6 of the mortgage
law in relation to Section 28 of Rule 39 of the Rules of Court is
inconsistent with Section 78 of the General Banking Act.” So
the bank rate prevails.
Paano nangyari ito? I have only one single explanation. Hindi
nakita ng mga abogado ng PNB ang provision na iyon. They did
not research very well. They failed to cite the provision of the
General Banking Act which authorizes the bank to continue
charging the higher rate even during the redemption period.
Ginamit ng SC ang general rule eh. So mas magaling ang lawyer
nung bank in the second case because they were able to detect
an exception under the general rule.
You know, if you are a lawyer of a bank, you must know all the
laws regarding banks. Just the same, if you are a labor lawyer,
you master all the labor laws. But if you are a bar candidate,
you master all laws! Yaaaann!
Sec. 29. Effect of redemption by judgment
obligor, and a certificate to be delivered and
recorded thereupon; to whom payments on
redemption made. If the judgment obligor
redeems, he must make the same
payments as are required to effect a
redemption by a redemptioner,
whereupon, no further redemption shall be
allowed and he is restored to his estate.
The person to whom the redemption
payment is made must execute and deliver
to him a certificate of redemption
acknowledged before a notary public or
other officer authorized to take
acknowledgments of conveyances of real
property. Such certificate must be filed
and recorded in the registry of deeds of
the place in which the property is
situated, and the registrar of deeds must
note the record thereof on the margin of
the record of the certificate of sale. The
payments mentioned in this and the last
preceding sections may be made to the
purchaser or redemptioner, or for him to
the officer who made the sale.
(31a)
Q: Suppose Tikla redeems the property from Joshua. If the
sheriff will execute in favor of Tikla a certificate of redemption,
to whom should Tikla pay?
A: The law says she can pay directly to the purchaser, the
redemptioner or the person who made the sale.
Sec. 30. Proof required of redemptioner. A
redemptioner must produce to the officer,
or person from whom he seeks to redeem,
and serve with his notice to the officer a
copy of the judgment or final order under
which he claims the right to redeem,
certified by the clerk of the court wherein
the judgment or final order is entered; or,
if he redeems upon a mortgage or other
lien, a memorandum of the record thereof,
certified by the registrar of deeds; or an
original or certified copy of any
assignment necessary to establish his
claim; and an affidavit executed by him or
his agent, showing the amount then
actually due
on the lien. (32a)
When the ORIGINAL OWNER wants to redeem the property from
B, there is NO NEED for him to prove his right as a judgment
debtor.
The judgment debtor has the automatic right to redeem.
But when it is B, C or D (REDEMPTIONERS) who wants to
redeem, they MUST PROVE to the sheriff that they are qualified
to redeem. They must prove their status because not every
person in the world has the right to redeem. The right to redeem
is only given to the debtor, the successor-in-interest or the
redemptioner. Thus, you must prove your personality to effect
redemption.
Sec. 31. Manner of using premises pending
redemption; waste restrained. Until the
expiration of the time allowed for
redemption, the court may, as in other
proper cases, restrain the commission of
waste on the property by injunction, on
the application of the purchaser or the
judgment obligee, with or without notice;
but it is not waste for a person in
possession of the property at the time of
the sale, or entitled to possession
afterwards, during the period allowed for
redemption, to continue to use it in the
same manner in which it was previously
used; or to use it in the ordinary course of
husbandry; or to make the necessary
repairs to buildings thereon while
he occupies the property. (33a)
PROBLEM: Suppose X is the debtor, A is the purchaser because
the highest bidder could be any person. During the 1-year
period to redeem, who is in possessor of the property? The
purchaser or the debtor?
A: The DEBTOR. During the one-year period, iyo pa rin yan.
The buyer or the purchaser cannot take over during the
institution. He has to wait for the one-year period to expire
before he can take over. Therefore, X continues to occupy the
property. He continues to use it the same manner it was
previously used. Use it in the ordinary course of husbandry, to
make the necessary repairs to buildings thereon while he
occupies the property.
Q: Suppose 8 months has passed. Sabi ni X, “Mukhang wala na
akong pag-asa. Hindi ko na ito mababayaran. Sige, wasakin ko
na lang ang property. Sirain ko na lang. I will make a waste of
the land. I will cut all the coconut trees. I will destroy all the
improvements. Para pag-take-over mo, wala na. Bwahahaha!”
What is the remedy of A?
A: He can ask the court to issue a writ of injunction according
to Section 31 – an injunction to restrain the commission of
waste on the property. So, you can also stop him by injunction.
Sec. 32. Rents, earnings and income of
property pending redemption. The purchaser
or a redemptioner shall not be entitled to
receive the rents, earnings and income of
the property sold on execution, or the
value of the use and occupation thereof
when such property is in the possession of
a tenant. All rents, earnings and income
derived from the property pending
redemption shall belong to the judgment
obligor until the expiration of
his period of redemption. (34a)
Section 32 is the continuation of Section 31.
Q: My property was sold on execution in your favor. But my
property earns income. May mga tenants diyan na nagbabayad
ng renta. During the one-year period, who will get the rentals?
The purchaser or the debtor?
A: The DEBTOR. He continues to receive all the earnings. For
defensive purposes, he is still the owner. Do not say that, “Ako
ang highest bidder, akin ang income!” (Gunggong!) You wait for
the one-year redemption period to expire to get the income.
Under the OLD rules, the 1964 Rules, during the one-year
period to redeem, the debtor/defendant continues to get the
income of the property but when the creditor may opt: “Your
Honor, akin ang income ha?” That’s allowed by the old law. But
everything is deductible also form the redemption price.
NGAYON wala na yan. 100% the debtor is the one enjoying the
income over the property.
That is a major amendment introduced by the 1997 Rules.
Q: Now, what happens if after the lapse of one year there is no
redemption? What is the next step?
A: That is Section 33:
Sec. 33. Deed and possession to be given at
expiration of redemption period; by whom
executed or given. If no redemption be made
within one (1) year from the date of the
registration of the certificate of sale, the
purchaser is entitled to a conveyance and
possession of the property; or, if so
redeemed whenever sixty (60) days have
elapsed and no other redemption has been
made, and notice thereof given, and the
time for redemption has expired, the last
redemptioner is entitled to the
conveyance and possession; but in all
cases the judgment obligor shall have the
entire period of one (1) year from the date
of the registration of the sale to redeem
the property. The deed shall be executed
by the officer making the sale or by his
successor in office, and in the latter case
shall have the same validity as though the
officer making the sale had continued in
office and executed it.
Upon the expiration of the right of
redemption, the purchaser or
redemptioner shall be substituted to and
acquire all the rights, title, interest and
claim of the judgment obligor to the
property as of the time of the levy. The
possession of the property shall be given to
the purchaser or last redemptioner by the
same officer unless a third party is actually
holding the property
adversely to the judgment obligor. (35a)
If the period to redeem expires, no more right of redemption.
What will happen? The sheriff now will now execute in favor of
the highest bidder or purchaser what is known as the final deed
of sale or DEED OF CONVEYANCE. Remember that there are
two documents here which the sheriff executes in case of real
property.
Q: What are they (two documents which the sheriff executes in
case of real property)?
A: The following:
1) CERTIFICATE OF SALE. After the auction sale, he will
execute in your favor the certificate of sale under
Section 25, by the time you register that, you start
counting the one year.
2) DEED OF CONVEYANCE. If after one year there is no
redemption, a deed of conveyance is executed. (Section
33)
Q: Which of the two documents transfers the ownership to the
purchaser?
A: Only the DEED OF CONVEYANCE transfers title to the
property.
The certificate of sale one year ago does not transfer the
ownership of the land to the purchaser. It is only a memorial
that you are the highest bidder, that you paid so much and that
you are the purchaser but there is no transfer of ownership.
Only the final deed of sale in Section 33 conveys title to
property. So do not confuse the sheriff’s certificate of sale under
Section 25 with the final deed of sale under Section 33.
Although in an extra-judicial foreclosure, there is no need of
deed of sale. Only affidavit of consolidation is needed under the
mortgage law.
Q: How can the sheriff give it to you? Suppose the debtor refuse
to vacate, is there a need to file another action of unlawful
detainer or forcible entry?
A: There is no more need of filing another action to eject the
former owner. The procedure is, the purchaser can ask the
court to issue a WRIT OF POSSESSION under the Property
Registration Decree to take over the property.
Now, another interesting case about this stage in relation to
property exempted from execution, is the case of
GOMEZ vs. GEALONE – 203 SCRA 474 [1991]
FACTS: The property of the defendant was levied and sold in a
public auction to the highest bidder. One year after, there was
no redemption. Then after the period has expired, here comes
the defendant questioning the auction sale because the property
was exempt from execution and the property really turned out
to be exempt from execution.
ISSUE: Is there a deadline for a judgment debtor to claim
exemption from execution of his property? Can the debtor still
raise the issue that the property is exempt from execution after
the expiration of the redemption period.
HELD: The rules do not expressly mention up to what point
“although the rules of court does not prescribe the period within
which to claim the exemption, the rule is, nevertheless, well-
settled that the right of exemption must be claimed by the
debtor himself at the time of the levy or within a reasonable
time thereafter.” What is “reasonable time”?
“’REASONABLE TIME,’ for purposes of the law on exemption,
does not mean a time after the expiration of the one-year period
for judgment debtors to redeem the property sold on execution,
otherwise it would render nugatory final bills of sale on
execution and defeat the very purpose of execution - to put an
end to litigation.”
“We now rule that claims for exemption from execution of
properties under Section 13 must be presented before its sale
on
execution by the sheriff.”
Meaning, you raise the issue of exemption at the time of the levy
but not later that the auction sale. There is a deadline because
if you claim exemption after that, masyadong ng atrasado—too
late na ba. Thus, the claim for exemption must be raised. That’s
the ruling in the case of GOMEZ vs. GEALONE.
Sec. 34. Recovery of price if sale not effective;
revival of judgment. If the purchaser of real
property sold on execution, or his
successor in interest, fails to recover the
possession thereof, or is evicted
therefrom, in consequence of irregularities
in the proceedings concerning the sale, or
because the judgment has been reversed
or set aside, or because the property sold
was exempt from execution, or because a
third person has vindicated his claim to
the property, he may on motion in the
same action or in a separate action
recover from the judgment obligee the
price paid, with interest, or so much
thereof as has not been delivered to the
judgment obligor; or he may, on motion,
have the original judgment revived in his
name for the whole price with interest, or
so much thereof as has been delivered to
the judgment obligor. The judgment so
revived shall have the same force and
effect as an original judgment would have
as of the date of the revival and no more.
(36a)
Q: Suppose A is the highest bidder. There is a third-party claim
which turned out to be valid. So the property is removed from A.
So, paano naman si A? Nakabayad gud siya diyan. Paano niya
babawiin ang kuwarta niya?
A: A’s options under Section 34:
1) Recover the money from obligee (A here is not the
judgment obligee); or
2) Have the judgment revived in your name and you look
for other properties of the obligor to execute because:
a) He lost possession of the property;
b) He was evicted;
c) There was irregularity of the proceedings;
d) The judgment has been reversed or set aside on
appeal;
e) The property sold was exempt from execution; or,
f) A third person has validity of his claim of the
property.
That’s one way of property being removed from the purchaser.
Your remedy is to recover the money from the obligee
ASSUMING that the obligee is different from the purchase. Or
have the judgment revived in your name – hahabol ka na lang
sa ibang properties ng debtor. That’s the procedure alright.
Sec. 35. Right to contribution or
reimbursement. When property liable to an
execution against several persons is sold
thereon, and more than a due proportion
of the judgment is satisfied out of the
proceeds of the sale of the property of one
of them, or one of them pays, without a
sale, more than his proportion, he may
compel a contribution from the others; and
when a judgment is upon an obligation of
one of them, as security for another, and
the surety pays the amount, or any part
thereof, either by sale of his property or
before sale, he may compel
repayment from the principal. (37a)
Q: The judgment is against A, B, and C, solidary debtors. A paid
everything. What is the right of A?
A: A has the right to seek reimbursement from B and C.
Or if the surety was made to pay the loan, he can claim
reimbursement from the principal debtor. That’s under the Law
on Obligations and Contracts—right to reimbursement.
REMEDIES IN AID OF EXECUTION
Another important portion of the rule to remember are the so-
called provisions of the rules in aid of execution – remedies “in
aid of execution” – because execution is a difficult process. The
purpose of the remedies in aid of execution is to help the obligee
realize the fruits of the judgment.
It is sometimes very hard to grasp out properties of the obligor
especially if he knows how to hide them by conveying remedies
to assist him in locating the properties of the defendant and
these remedies in aid of execution are found in Section 36 to
Section 43.
And the most famous are those found in Sections 36 and 37:
Sec. 36. Examination of judgment obligor
when judgment unsatisfied. When the return
of a writ of execution issued against
property of a judgment obligor, or any one
of several obligors in the same judgment,
shows that the judgment remains
unsatisfied, in whole or in part, the
judgment obligee, at any time after such
return is made, shall be entitled to an
order from the court which rendered the
said judgment, requiring such judgment
obligor to appear and be examined
concerning his property and income before
such court or before a commissioner
appointed by it, at a specified time and
place; and proceedings may thereupon be
had for the application of the property and
income of the judgment obligor towards
the satisfaction of the judgment. But no
judgment obligor shall be so required to
appear before a court or commissioner
outside the province or city in which such
obligor resides or is found.
(38a)
 Sec. 37. Examination of obligor of judgment
obligor. When the return of a writ of
execution against the property of a
judgment obligor shows that the judgment
remains unsatisfied, in whole or in part,
and upon proof to the satisfaction of the
court which issued the writ, that a person,
corporation, or other juridical entity has
property of such judgment obligor or is
indebted to him, the court may, by an
order, require such person, corporation, or
other juridical entity, or any officer or
member thereof, to appear before the
court or a commissioner appointed by it,
at a time and place within the province or
city where such debtor resides or is found,
and be examined concerning the same.
The service of the order shall bind all
credits due the judgment obligor and all
money and property of the judgment
obligor in the possession or in the control
of such person, corporation, or juridical
entity from the time of service; and the
court may also require notice of such
proceedings to be given to any party to
the action in such manner as it may deem
proper. (39a)
So under Section 36, you can ask the court to render judgment
to allow you to subpoena the obligor and take the witness stand
subject to questioning so that you can discover where his
properties are. So in effect, Section 36 is related to modes of
discovery. This is actually a mode of discovery. This is a type of
deposition taking. It is related to the subject of deposition taking
where the discovery of the witness stand to effect execution.
EXAMPLE: The sheriff did not find any property of the obligor.
So the obligee can file a motion under Section 36 for
examination of the obligor under oath hoping that in the course
of asking questions, he might make some admissions. And the
procedure is the same as in deposition but this is only done
right inside the courtroom.
On the other hand under Section 37, you can also examine
people whom you believe owe the obligor such as his debtors, or
those holding his property, so that you can discover all his
collectibles and ask that the same be garnished. So this time, it
is the “obligor” of the judgment obligor who will be examined.
EXAMPLE: Kenneth, Thadd, and Francis owe the judgment
obligor a sum of money. The obligee can file a motion under
Section 37 to subpoena Kenneth, Thadd and Francis to find out
if it is true that they are indebted to the judgment obligor. In
this case, the obligee can as the court to garnish the money.
So, those are the objects of Sections 36 and 37. Of course there
are others, just go over them.
NOTE: Actually a mode of discovery.
Sec. 38. Enforcement of attendance and
conduct of examination. A party or other
person may be compelled, by an order or
subpoena, to attend before the court or
commissioner to testify as provided in the
two preceding sections, and upon failure to
obey such order or subpoena or to be
sworn, or to answer as a witness or to
subscribe his deposition, may be punished
for contempt as in other cases.
Examinations shall not be unduly
prolonged, but the proceedings may be
adjourned from time to time, until they
are completed. If the examination is before
a commissioner, he must take it in writing
and certify it to the court. All
examinations and answers before a court
or commissioner must be under oath, and
when a corporation or other juridical
entity answers, it must be on the oath of
an authorized officer or agent
thereof. (40a)
Section 38 is the continuation of Section 37. If the judgment
obligor, or Kenneth, Thad and Francis refuse to comply with the
subpoena, they can be punished for contempt.
Sec. 39. Obligor may pay execution against
obligee. After a writ of execution against
property has been issued, a person
indebted to the judgment obligor may pay
to the sheriff holding the writ of execution
the amount of his debt or so much thereof
as may be necessary to satisfy the
judgment, in the manner prescribed in
section 9 of this Rule, and the sheriff's
receipt shall be a sufficient discharge for
the amount so paid or directed to be
credited by the judgment obligee on the
execution. (41a)
Here, there is a change of the party creditor. The best example
is garnishment from a bank. B is the debtor of the judgment
obligor.
If B, instead of paying the judgment obligor, will pay the
judgment creditor, B is no longer indebted to the judgment
obligor.
Sec. 40. Order for application of property and
income to satisfaction of judgment. The court
may order any property of the judgment
obligor, or money due him, not exempt
from execution, in the hands of either
himself or another person, or of a
corporation or other juridical entity, to be
applied to the satisfaction of the
judgment, subject to any prior rights over
such property.
If, upon investigation of his current
income and expenses, it appears that the
earnings of the judgment obligor for his
personal services are more than necessary
for the support of his family, the court
may order that he pay the judgment in
fixed monthly installments, and upon his
failure to pay any such installment when
due without good excuse,
may punish him for indirect contempt. (42a)
If upon investigation of his current income and expenses, it
appears that the earnings of the judgment obligor for his
personal services are more than necessary for the support of his
family, the court may order that he pay the judgment obligee in
fixed monthly installments, and upon his failure to pay any
such installment when due without good excuse, may punish
him for indirect contempt.
Q: Can the salary of an employee be garnished?
A: Yes IF there is excess for support of his family. (Section 40)
Section 40 related to Section 13, paragraph [i] properties
exempt from execution:
(i) So much of the salaries, wages, or
earnings of the judgment obligor for his
personal services within the four months
 preceding the levy as are necessary for the
support of
his family;
Normally, you cannot levy on the earnings of a person which he
needs for support of his family. But actually, it is not the entire
earnings because if you’re earning a lot, it is more than
sufficient for your family. So the excess of your income can be
garnished under Section 40.
Sec. 41. Appointment of receiver. The court
may appoint a receiver of the property of
the judgment obligor; and it may also
forbid a transfer or other disposition of, or
any interference with, the property of the
judgment obligor not exempt from
execution.
(43a)
The court may appoint a receiver who is an officer of the court
who will manage the property of the litigants pending litigation.
This remedy is found under Rule 59 on Receivership. The
purpose of receivership is to preserve the property by placing it
in the hands of the court to remove it from the control of a party
because a party may dispose of the property.
Sec. 42. Sale of ascertainable interest of judgment
obligor in real estate. If it appears that the judgment
obligor has an interest in real estate in the place in
which proceedings are had, as mortgagor or
mortgagee or otherwise, and his interest therein
can be ascertained without controversy, the
receiver may be ordered to sell and convey such
real estate or the interest of the obligor therein;
and such sale shall be conducted in all respects in
the same manner as is provided for the sale of real
estate upon execution, and the proceedings
thereon shall be approved by the court before the
execution
of the deed. (44a)
EXAMPLE: The obligor turns out to have an interest in real
property as a mortgagee, or he has a right to redeem, or right to
foreclose, or right to repurchase. The obligee can levy on these
rights because these rights are property rights by themselves.
This time, it is not the property which is sold but your interest.
Sec. 43. Proceedings when indebtedness
denied or another person claims the property.
If it appears that a person or corporation,
alleged to have property of the judgment
obligor or to be indebted to him, claims an
interest in the property adverse to him or
denies the debt, the court may authorize,
by an order made to that effect, the
judgment obligee to institute an action
against such person or corporation for the
recovery of such interest or debt, forbid a
transfer or other disposition of such
interest or debt within one hundred twenty
(120) days from notice of the order, and
may punish disobedience of such order as
for contempt. Such order may be modified
or vacated at any time by the court which
issued it, or by the court in which the
action is brought, upon
such terms as may be just. (45a)
EXAMPLE: The obligee cannot find any property of the obligor.
But there is a rumor that Pong owes the obligor a sum of
money. Upon examination, Pong denies indebtedness. But the
obligee believes that he has evidence that Pong owes the obligor
money. In this case, the obligee can ask the court that he be
allowed to file a collection case against Pong on behalf of the
obligor.
Q: Can the obligee considered as a real party in interest in this
case?
A: YES. The obligee is now considered as a representative party.
Section 43 is an example of the phrase, “or a party authorized
by law or these Rules…” under Rule 3, Section 3:
Sec. 3. Representatives as parties. x x x x x A
representative may be a trustee of an
express trust, a guardian, an executor or
administrator, or a party authorized by law
or
these Rules. x x x x x x
SATISFACTION OF JUDGMENT
Sec. 44. Entry of satisfaction of judgment by clerk
of court. Satisfaction of a judgment shall be
entered by the clerk of court in the court
docket, and in the execution book, upon the
return of a writ of execution showing the full
satisfaction of the judgment, or upon the filing
of an admission to the satisfaction of the
judgment executed and acknowledged in the
same manner as a conveyance of real property
by the judgment obligee or by his counsel
unless a revocation of his authority is filed, or
upon the endorsement of such admission by
the judgment obligee or his counsel on the
face of the record of the
judgment. (46a)
Sec. 45. Entry of satisfaction with or without
admission. Whenever a judgment is
satisfied in fact, or otherwise than upon
an execution, on demand of the judgment
obligor, the judgment obligee or his
counsel must execute and acknowledge, or
indorse, an admission of the satisfaction
as provided in the last preceding section,
and after notice and upon motion the
court may order either the judgment
obligee or his counsel to do so, or may
order the entry of satisfaction to be
made without such admission. (47a)
Q: What does satisfaction of judgement mean?
A: SATISFACTION OF JUDGMENT is the compliance with or
fulfillment of the mandate thereof (31 Am. Jur. 354).
Execution is not the same as satisfaction. Execution is the
method of enforcement of a judgment. Satisfaction refers to
compliance with or fulfillment of the mandate of judgment.
Normally, execution precedes satisfaction. But you can satisfy
a judgment without execution by simply paying voluntarily.
And when the judgment is satisfied, it has to be recorded the
manner of which is found in Sections 44 and 45 – either the
sheriff himself will record “fully satisfied,” or, the creditor will
file an admission that the judgment is fully satisfied, or, the
debtor on motion will ask that it be recorded that he has already
paid.
Q: Who may compel satisfaction of judgment?
A: Satisfaction of judgment may be compelled by the
judgmentcreditor by means of execution, or by the judgment-
debtor by
means of voluntary payment. (Salvante vs. Ubi Cruz, 88 Phil.
236)
Now, here is an interesting question which has not yet been
asked in the Bar. They were expecting it as early as 2 years ago.
Q: Can a plaintiff appeal from the judgment and at the same
time move for execution of the same? Can you do both without
being self-contradictory? Can you demand satisfaction of
judgment and at the same time appeal said judgment?
A: PRIOR CASES say, you cannot do it because it is
inconsistent. When you comply with the satisfaction of
judgment, you are already accepting the correctness of
judgment. But when you are appealing it, you do not accept the
same. That was the old ruling which was MODIFIED in the case
of
VITAL-GOSON vs. CA – 212 SCRA 235 [1992] (en banc)
ISSUE: Whether or not a judgment creditor is estopped from
appealing or seeking modification of a judgment which has been
executed at his instance.
HELD: It depends upon the nature of the judgment as being
indivisible or not. This is the doctrine laid down by this Court in
a case decided as early as 1925, Verches v. Rios, where the
judgment is INDIVISIBLE, acceptance of full satisfaction of the
judgment annihilates the right to further prosecute the appeal;
and that even partial execution by compulsory legal process at
the instance of the prevailing party, places said party in
estoppel to ask that the judgment be amended.” Indivisible
means either you accept it as correct or you appeal. But you
can not have your cake and eat it too.
“Where the judgment is DIVISIBLE, estoppel should not operate
against the judgment creditor who causes implementation of a
part of the decision by writ of execution. This is the clear import
of Verches .and the precedents therein invoked. The principle is
fully consistent not only with the opinion that acceptance of
payment of only the uncontroverted part of the claim should not
preclude the plaintiff from prosecuting his appeal, to determine
whether he should not have been allowed more, but also with
logic and common sense.” In other words, if a judgment is
divisible, there is no prohibition.
EXAMPLE of DIVISIBLE JUDGMENT: A judgment adjudicating
2 or more causes of action – I am satisfied with one cause but I
am not with the other. So, my appeal is only on the 2nd cause
of action where the award should be higher. I am not appealing
in the first cause of action and the defendant did not also
appeal. So I can move to execute that portion of judgment, as
far as the first cause of action is concerned and continue with
my appeal on the second.
This is a divisible judgment. This is allowed.
PROBLEM: Plaintiff sues for P1 million damages. The court gave
an award of P500,000 only (one-half the damages sued for).
Defendant did not appeal because he is satisfied with the
judgement. Meaning, he accepts the liability of up to P500,000,
“Judgment is good.” Plaintiff, however, is not satisfied, “It should
be P1 million, so I will appeal.” He believes that even if he loses
the appeal, he is insured as to the P500,000.
Q: Can plaintiff move for the satisfaction of P500,000 and let the
other half continue on appeal?
A: YES, I think so. Anyway, there is no quarrel with respect to
the first half. To my mind, this is a DIVISIBLE judgment since
defendant accepts it and even if plaintiff loses appeal, the
former is still liable up to P500,000. So the plaintiff might as
well claim it now for it is final insofar as the defendant is
concerned while plaintiff’s appeal is with respect to the balance.
This is a possibility under the ruling in VITAL-GOSON.
Sec. 46. When principal bound by judgment
against surety. When a judgment is
rendered against a party who stands as
surety for another, the latter is also bound
from the time that he has notice of the
action or proceeding, and an opportunity
at the
surety's request to join in the defense. (48a)
When there is a judgment against the surety, the principal
debtor is also bound by the judgment from the time he has
notice of the action or proceeding and an opportunity at the
surety’s request to join in the defense. The surety is only liable
legally but the real party liable is the debtor.
RES ADJUDICATA
And finally, the most important section in Rule 39 is Section 47
– effect of judgment or final order. This is what we call the
principle of res adjudicata.
Sec. 47. Effect of judgments or final orders.
The effect of a judgment or final order
rendered by a court of the Philippines,
having jurisdiction to pronounce the
judgment or final order, may be as follows:
(a) In case of a judgment or final order
against a specific thing, or in respect to
the probate of a will, or the administration
of the estate of a deceased person, or in
respect to the personal, political, or legal
condition or status of a particular person
or his relationship to another, the
judgment or final order is conclusive upon
the title to the thing, the will or
administration, or the condition, status or
relationship of the person; however, the
probate of a will or granting of letters of
administration shall only be prima facie
evidence of the death of the testator or
intestate;
(b) In other cases, the judgment or final order
is, with respect to the matter directly
adjudged or as to any other matter that
could have been raised in relation thereto,
conclusive between the parties and their
successors in interest by title subsequent
to the commencement of the action or
special proceeding, litigating for the same
thing and under the same title and in the
same
capacity; and
(c) In any other litigation between the same
parties or their successors in interest, that
only is deemed to have been adjudged in a
former judgment or final order which
appears upon its face to have been so
adjudged, or which was actually and
necessarily included therein or necessary
thereto. (49a)
We know what this is all about – when the matter is already
decided or finish already, you cannot re-open that easily. The
direct provision of law which enunciates that principle is
Section 47, which is composed of 3 portions: paragraphs [a], [b]
and [c].
Now, paragraph [a] is the principle of res adjudicata as applied
in judgment in rem (binding on the whole world) or at least
quasi in rem. Paragraphs [b] and [c] are the application of the
same doctrine with respect to judgment in personam (binding
only on the parties).
RES ADJUDICATA and RES JUDICATA are the same. In the
Philippines, that is influenced by Roman Law and Spanish Law
(Pua vs. Lapitan, 57 O.G. 4914) But the principle is known
worldwide, although maybe known by another name. In Anglo-
American law, it is known as the doctrine of Estoppel By
Judgment (Fajardo vs. Bayona, 98 Phil. 659). But it is the same.
The concept is similar.
That is why in the 1994 case of
SALUD vs. CA – 236 SCRA 384 [1994]
HELD: “The rules of res judicata are of common law origin and
they initially evolved from court decisions. It is now considered
a principle of universal jurisprudence forming a part of the legal
system of all civilized nations.”
Q: What is the FOUNDATION PRINCIPLE upon which the
doctrine of res judicata rests?
A: It rests from the principle that parties ought not to be
permitted to litigate the same issue more than once; that when
a right or fact has been judicially tried and determined by a
court of competent jurisdiction, or where an opportunity for
such trial had been given, the judgment of the court shall be
conclusive upon the parties and those in privity with them.
Otherwise, without this doctrine, litigation would become
interminable, rights of parties would be involved in endless
confusion, courts would be stripped of their most efficient
powers, and the most important function of government, that of
ascertaining and enforcing rights, would go unfulfilled.
(Zambales Academy vs. Villanueva, L-19884, May 8, 1969;
People vs. Macadaeg, 91 Phil. 410; Oberiano vs. Sobremesana,
L-4622, May 30, 1952; Peñalosa vs. Tuazon, 22 Phil.
303)
I think we agree with that. Imagine, if two persons litigated for
years over the ownership of a parcel of land. Then after years of
litigation, all the way to the SC, defendant won. Final. After one
generation, both plaintiff and defendant are dead but their
children would continue. Here comes the children of the plaintiff
raising the same issue of ownership. So, there is no end if there
is no res judicata.
REQUISITES OF RES ADJUDICATA
What are the requisites of res adjudicata? How do we know,
since there are 2 cases here? Does it mean that simply because
there is a case between us, there will be no more case between
us in the future? NO.
Q: So what are the requisites of res adjudicata?
A: There is res judicata if the following REQUISITES are
present:
1) The judgment or order invoked as res adjudicata must
be final;
2) The court rendering the same must have jurisdiction
over the subject matter and of the parties;
3) The judgment or order must be upon the merits; and
4) There must be, between the two cases, identity of
parties, identity of subject matter, and identity of
cause of action.
So the elements are similar with litis pendentia. Actually, they
are based on the same rule – splitting of the cause of action.
The only difference is, in litis pendentia, the first action is still
pending. In res adjudicata, the first action has already been
decided and the decision has already become final.
First Requisite: JUDGMENT OF ORDER INVOKED MUST BE
FINAL
When it says ‘final’, the previous judgment has been final and
executory (Hubahib vs. Insular Drug, 64 Phil. 119) Meaning, it
can no longer be changed. This is because there is such a thing
as final and appealable. A final and executory judgment is
already beyond the power of the court to alter while a final and
appealable judgment is still subject to modification by the
appellate court.
(Macapinlac vs. CA, 86 Phil. 359)
So where there is a judgment now that you received, and before
it becomes executory, you filed another case, it is not res
judicata. It is litis pendentia because the first case is still
pending.
EXAMPLE: Jessa files a case against Charles. Charles lost and
then appealed. While his appeal is pending, Jessa filed the same
case against Charles. Charles filed a motion to dismiss the
second case. The ground for the motion to dismiss should be
Litis Pendentia because while there is already a decision, the
same is not yet final and executory. It is still on appeal. In such
case, it is improper to invoke the principle of res adjudicata
because the first element is missing.
Q: Now, when did the first judgment become final? Is it before
the second case is filed? Or is it after the second case filed?
A: Either one. It could have been final before the filing of the
second action or after, provided when the defendant invoked it,
the first judgment is already final. (Galiancia vs. CA, 173 SCRA
42)
Second Requisite: THE COURT RENDERING THE SAME
MUST HAVE
JURISDICTION OVER THE SUBJECT MATTER AND OF THE
PARTIES
Meaning, the first judgment is valid because if the court never
acquired jurisdiction over the subject matter and the parties
and rendered judgment, the judgment is void and cannot be
invoked as res judicata. (Banco Español-Filipino vs. Palanca, 37
Phil. 921)
Q: May a voidable judgment be invoked as res adjudicata?
A: YES because such kind of judgment is binding upon the
parties
until annulled. (Reyes vs. Barretto-Datu, 94 Phil. 446)
Now, the classic example of the second element is the case
which I
mentioned to you when we were in Rule 17 – the case of
REPUBLIC PLANTERS BANK (RBP) vs. MOLINA – 166 SCRA
39
[1988]
FACTS: The RPB filed a case against the defendant for a sum of
money. Defendant cannot be summoned because his
whereabouts is now unknown. Several attempts made by the
plaintiff to look for him failed. After a while the court dismissed
the complaint for RBP’s failure to prosecute. And the order of
dismissal was silent. So, following Section 3 of Rule 17, the
dismissal is with prejudice – “it shall have the effect of an
adjudication upon the merits, unless the order provides
otherwise.”
Then later on, the plaintiff (RPB) discovered the whereabouts of
the defendant. The RPB re-filed the compliant. Defendant moved
to dismiss because when the first complaint was dismissed and
the order of dismissal was silent then the dismissal has the
effect of an adjudication on the merits.
HELD: Since We are talking of res adjudicata, let us correlate it
with the elements of res adjudicata under Rule 39.
One of the elements of res adjudicata is: When the case is
terminated, the court has jurisdiction over the case both as to the
person and the subject matter;
In the case of RPB, the court never acquired jurisdiction over
the person of the defendant because he was never served with
summons. Therefore, such dismissal did not have the effect of
res adjudicata. The second element of res judicata is missing.
Third Requisite: THE JUDGMENT OR ORDER MUST BE
UPON THE MERITS
What do we mean by this? A judgment on the merits for the
purpose of res judicata is one finally settling the issues raised in
the pleadings (Manila Electric Co. vs. Artiaga, 50 Phil. 144).
Normally, it is after trial when there is presentation of evidence.
Therefore, when a complaint is dismissed for lack of jurisdiction
or improper venue, even if said dismissal becomes final, the
plaintiff can re-file the case because the dismissal upon
improper venue or lack of jurisdiction is not upon the merits. It
never dealt with the correctness or validity of the cause of
action. There should be trial, generally.
So, GENERALLY, a dismissal without a trial is not an
adjudication upon the merits EXCEPT in Rule 17, Section 3
where the case was dismissed for failure of the plaintiff to
appear during the presentation of his evidence in chief, or to
prosecute his action for an unreasonable, period of time, or
failed to comply with the rules or order of the court. There is no
trial there but according to Rule 17, Section 3, the dismissal
shall have the effect of an adjudication upon the merits. This is
the exception even if there was no trial in the first case.
Fourth Requisite: THERE MUST BE, BETWEEN THE TWO
CASES,
IDENTITY OF PARTIES, IDENTITY OF SUBJECT MATTER,
AND
IDENTITY OF CAUSE OF ACTION
I. IDENTITY OF PARTIES
Q: When there is identity of parties for the purpose of res
judicata?
A: There is identity of parties for the purpose of res judicata:
1) When the parties in the second action are the same as
the parties in the first action; or
2) When the parties in the second action are successors-
in-interest of the parties in the first action, such as
heirs or purchasers who acquired title after the
commencement of the first action.
EXAMPLE: The example I gave you, the quarrel between
parents, then the children did the same. That is the
same parties. The children are the successors-in-
interest of the original parties, although literally they
are not the same parties.
One good illustration of res adjudicata on identity of parties as
applied in a labor case was the case of
DELFIN vs. INCIONG – 192 SCRA 151 [1990]
NOTE: The doctrine of res adjudicata applies not only to the
decisions of regular courts but can be invoked even in
administrative cases. It also applies to decisions of
administrative bodies.
FACTS: In the case of DELFIN, a union filed a case of unfair
labor practice (ULP) against the employer. Then later on, the
case was dismissed by the NLRC. When the case was dismissed,
the employees filed another case based on the same ULP. The
employer invoked res adjudicata and the complainants said,
“No, it is not the same parties. In the first case, it was the
union. Now it is
us (employees).”
HELD: NO! When the union filed the first case, it was filing in
behalf of the employees. This is what you call representative
party. In effect, it is the same party.
“While it is true that the complainants in the first charge was
the union, in reality it had no material interest in the outcome
of the case. The real party who stands to be benefited or
defeated by a case brought in the name of the union are the
union members themselves. Since the judgment therein had
become final and executory, the subsequent filing of another
ULP charge against the employer for the same violations
committed during its existence, is barred by res judicata.”
“The bringing of the same action in the name of the individual
members of the union will not take out the case from the ambit
of the principle of res judicata.” So, it is still the same parties.
II. IDENTITY OF SUBJECT MATTER
Q: When is there identity of subject matter?
A: There is identity of subject matter if in the second case, the
same thing is involved or included in the first case. (Agregado
vs.
Muñoz, 26 Phil. 546)
EXAMPLE: A judgment in an action for the recovery of a large
tract of land shall be a bar for a subsequent action for the
recovery of a smaller parcel included in the large tract. (Rubiso
vs. Rivera, 41 Phil.
39)
EXAMPLE: A judgment in an action for accounting of a certain
funds would be a bar for a subsequent action for the partition of
the same funds. (Chua Tan vs. Del Rosario, 57 Phil. 411)
EXAMPLE: A case for recovery of property was dismissed. The
losing party file a second case for recovery of the value of the
property. In this case, there is res adjudicata. So, you can not
deviate ‘no? Kahit konting retoke lang, it is the same.
III. IDENTITY OF CAUSES OF ACTION
Q: When is there identity of causes of action for the purpose of
res judicata?
A: There is identity of causes of action for the purpose of res
judicata when the two actions are based on the same delict or
wrong committed by the defendant, even if the remedies be
different (Qiogue vs. Bautista, L-13159, Feb. 2, 1962). You
cannot change the remedy in order to escape from the principle
of res adjudicata.
Sometimes, it is one of the hardest – same cause of action –
because sometimes there are 2 causes of action which are
interrelated, even between the same parties. Now, if there are 2
interrelated causes of action, there is no res adjudicata.
Interrelated only, because the law says similar causes of action.
That is hard to determine.
That is why the SC had to give some tests to determine whether
the causes of action are the same or not. Among these tests
given by the Court:
TESTS TO DETERMINE WHETHER OR NOT THE
CAUSES OF ACTION ARE THE SAME:
1) SAME EVIDENCE Test as laid down in the case of
AQUILA ESTATE vs. BACOLOD-MURCIA MILLING
CO. – 144 SCRA 482
HELD: Res adjudicata can not be applied even though
in the 2 cases there is identity of parties, subject
matter, and relief prayed for, the evidence adduced to
sustain the cause of action in the first case is not
sufficient to sustain the second case. So, the evidence
was sufficient to prove the first case while the same
evidence is not sufficient to prove the second case.
Therefore, it must be different cause of action for how
come the same evidence will not suffice anymore. So, it
must be a different one.
2) INCONSISTENCY Test given in the case of
VALENCIA vs. RTC – 184 SCRA 80
HELD: One test of the identity of cause of action is
whether or not the judgment sought in the subsequent
case will be inconsistent with the prior judgment.
Meaning, you are asking for a decision which is in
conflict with the original decision.
Q: Suppose there is an inconsistency, is this a sign of res
adjudicata or no res judicata?
A: Well, I think if there is an inconsistency, that is a sign of res
adjudicata because you are trying to change what has already
been rendered. To my mind, that is how it should be interpreted
because if the judgment I am seeking is inconsistent with what
has been decided, then I think that is violating the rule of res
adjudicata – I am re-opening something which was already
decided.
3) And the test in the 1995 case of
GUEVARRA vs. BENITO – 247 SCRA 570
HELD: The causes of action can not be the same if the
cause of action in one case only arose after the
judgment in the other. The principle of res judicata
extends only to the facts and conditions as they
existed at the time the judgment was rendered.
Those are the important principles to remember (read the cases
in short).
RARE INSTANCES WHERE SC REFUSES TO ALLOW RES
JUDICATA
DESPITE ITS EXISTENCE
Another point, res adjudicata is a rule of law, rule of
convenience, of practicality and when the evidence are present,
the courts shall not allow second litigation. We know that but I
have to admit that there are some rare cases where despite the
elements of res adjudicata, the courts refused to allow it.
This is what we call EQUITY CASES. But this is very rare. When
there is a higher principle to be observed rather than the rule of
res adjudicata – there are higher values of society which would
be subverted if we will stick to res adjudicata. A good example is
the case of
SUAREZ vs. CA – 193 SCRA 183 [1991]
FACTS: This involves a custody case. A certain Rosemarie
Manese filed a petition for habeas corpus for the recovery of her
minor child from her former live-in partner or common-law
husband, Renato Suarez. Later, Manese filed a motion to
dismiss the habeas corpus case for she intended to pursue
another remedy – custody of minor under Rule 99 of the Rules
of Court in Special Proceedings.
Actually, as observed by the SC, her move was wrong because
you can obtain custody of your child through habeas corpus.
She though she had the wrong remedy, so she changed it.
Actually she was correct. The trouble is, she withdrew it. In the
trial for the dismissal of the habeas corpus, it was with
prejudice so actually, it is on the merits ‘no?
Thereafter, she filed the custody case against Suarez. The latter
moved to dismiss on the ground of res adjudicata. All the
evidence are admitted there. There was a decision on the merits.
HELD: “The principle of res judicata should be disregarded if its
application would involve the sacrifice of justice to technicality.”
In other words, this is what we call EQUITY.
The application of the res adjudicata should be taken on a case
to case basis; you cannot say you apply res adjudicata through
and through. It must be taken under the particular facts
obtained. Meaning, there are certain facts in that case which
will warrant a deviation from the usual rule, to do “otherwise
would amount to denial of justice and/or bar to a vindication of
a legitimate
grievance.”
“It is worth stating here that the controversy in the instant case
is not just an ordinary suit between parties over a trivial matter
but a litigation initiated by the natural mother over the welfare
and custody of her child, in which the State has a paramount
interest.” This is not a simple collection case.
“The fundamental policy of the State as embodied in the
Constitution in promoting and protecting the welfare of children
shall not be disregarded by the courts by mere technicality in
resolving disputes which involve the family and the youth.”
So there is a collision here between the family view found in the
Constitution and the technical principle of res adjudicata. If we
sustain the principle of res adjudicata then the mother can no
longer recover her child. But if we disregard res judicata, the
mother will be given a chance to get back her child, which is
higher in value than res judicata.
This principle observed in SUAREZ was actually repeated in the
1994 case of
SALUD vs. CA – 233 SCRA 284 [1994]
HELD: “There should not be a mechanical and uncaring reliance
on res judicata where more important societal values deserve
protection. The doctrine of res adjudicata is a rule of justice
which
cannot be rigidly applied when it results to injustice.”
This is another pronouncement which leans on the equitable
side of the situation rather than on the observance of the
technical rules of res adjudicata. You can disagree with the
decision but the same can not be wrong. This is what you call
infallible. Infallible means no room for error. That is why Justice
Jackson said commenting on the US SC: “We are not final
because we are
infallible. But we are infallible because we are final.”
BAR BY A FORMER JUDGMENT vs. CONCLUSIVENESS OF
JUDGMENT
If you have read the questionnaire in Remedial Law last
September (1997), one of the questions asked by the examiner
is: Distinguish the concept of BAR BY A FORMER JUDGMENT
and the concept of CONCLUSIVENESS OF JUDGMENT.
The two concepts are found in Section 47. The concept of bar by
a former judgment is in paragraph [b] and conclusiveness of
judgment is in paragraph [c]. These are two parts of the res
adjudicata rule.
The two concepts were discussed by the SC in the case of
SALUD: The concept of Bar By A Former Judgment is known in
traditional terminology as merger or bar; and in modern
terminology, it is called CLAIM PRECLUSION; while
Conclusiveness Of Judgment is traditionally known as collateral
estoppel and in modern terminology it is called ISSUE
PRECLUSION.
Q: Distinguish BAR BY A FORMER JUDGMENT and
CONCLUSIVENESS OF JUDGMENT.
A: The following are the distinctions:
1) As to Effect: If you analyze paragraph [b], there are two
judgments – in BAR BY A FORMER JUDGMENT, the
first judgment constitute an absolute bar to all matters
directly adjudged as well as matters that might have
been
adjudged; whereas
In CONCLUSIVENESS OF JUDGMENT, the first
judgment is conclusive only on matters actually
litigated and adjudged in the first action under
paragraph [c].
2) As to the Requisites: In BAR BY A FORMER
JUDGMENT, there must be identity of parties, subject
matter, and
cause of action; but
In CONCLUSIVENESS OF JUDGMENT, even if there is
identity of parties or subject matter, it is not necessary
that there is identity of causes of action.
Of course, for purposes of the bar exams, that kind of answer
will suffice but mas maganda if there is illustration: Kung bar
by prior judgment – the first judgment is res adjudicata to the
second or matters that have been adjudged and matters that
could have been adjudged in relation thereto.
EXAMPLE of Bar by a Former Judgment: Compulsory
counterclaim. I filed a case against you for recovery of land.
Meron ka pa lang claim sa akin for reimbursement for
necessary expenses. It must be set-up in the main action
otherwise it is barred forever. But you did not set it up and then
afterwards, you file a case against me for reimbursement for
necessary expenses, I will move to dismiss. Your claim is
already barred because you should have raised it as a
compulsory counterclaim in the first action. The barring of the
counterclaim is considered as the application of res adjudicata
by applying the concept of bar by a former judgment.
EXAMPLE of Conclusiveness of Judgment: The debtor
borrows from the creditor P3 million payable in 3 installments
without any acceleration clause. When the first installment fell
due the creditor sue the debtor and the debtor raised the
defense of forgery, “That the promissory note is forged and as an
alternative defense assuming that the promissory note is valid,
the first installment was already extinguished by payment.” After
trial, the court decided against the defendant. Tapos na. Now,
the second installment fell due. It is another cause of action.
Now, here comes the plaintiff filing the case to collect the second
installment.
Q: Can the debtor raise again, in the second case, the defense of
FORGERY of the promissory note?
A: NO. Tapos na yan. We have already decided that the
promissory note was genuine and that there was no forgery.
This is the same promissory note that we are talking about. So,
in other words, the issue of forgery is already adjudged in the
first case and therefore res adjudicata in the second
installment.
Q: Can the debtor raise the defense of PAYMENT, that the
second installment is already paid or is it also barred?
A: YES, because in the first case what was resolved was
whether the first installment is paid. The judgment is already
conclusive on matters directly adjudged but not to matters
which have not been adjudged. The issue on whether the
second or third installment have already been paid was never
adjudged in the first case. That is the application. Take note
that there is no identity of cause of action.
Another example of Conclusiveness of Judgment was the ruling
in
the case
CARANDANG vs. VENTURANZA – 133 SCRA 344 [1984]
FACTS: This involves a conflict between two brothers, B1 and
B2. There is already bad blood between them because according
to B1, B2 appropriated all the properties of their parents. So
there was this threat from B1 to sue B2 to recover his share.
So B2 consulted his friend X. X suggested that B2 enters into a
simulated sale with X. B2 sold his property to X. As expected,
B1 filed a case against both of them to annul or rescind the
action. Unfortunately, B1 has never proved that the sale was
simulated.
The case was dismissed.
Then later B1 died. After that, B2 said to X, “Isauli mo na sa
akin ang mga properties ko.” X said, “What are you talking
about? I already bought it from you, akin na ito!” B2 filed a case
against X.
The defense of X is res adjudicata.
HELD: There is NO res adjudicata. In the first place, one of the
elements of res adjudicata is identity of parties. Of course, both
of them are also parties of the first case but they were not
adverse to each other. They were co-defendants in the first case.
Res adjudicata is only applicable between adverse parties in the
former suit and not between parties. Co-parties for the
judgment therein ordinarily settle claims as to their relative
rights and liabilities as co-plaintiffs or co-defendants per se.
But the second reason is, the cause of action is completely
different and therefore the judgment in the first case is
conclusive only insofar as the right of B1 is concerned. It
cannot be conclusive as to the rights of B2 and X because it is a
separate cause of action.
Another was the 1993 case of
VDA FISH BROKER vs. NLRC – 228 SCRA 681 [1993]
FACTS: A complaint filed by an employee for non-payment of
service incentive leave, COLA, 13th month pay, holiday pay, is
dismissed based on the finding that no employer-employee
relationship existed between the complainant and the
respondent.
The ruling became final.
Subsequently, the same complainants filed another case against
the same respondent for reinstatement due to illegal dismissal.
(How can you file for reinstatement na wala man kayong ER-EE
relationship in the first case???)
ISSUE: Is the finding of no ER-EE relationship in the first case
res adjudicata to the second case for illegal termination?
HELD: YES. “The issue of employer-employee relationship is
crucial in the determination of the rights of the parties in both
cases. Res adjudicata applies even when the cause of action is
not similar under the concept of conclusiveness of judgment.
The ruling in the first case that there is no Employer-Employee
relationship between the parties is conclusive in subsequent
cases although the cause of action is not the same.”
“If were we to ignore the principle of res judicata, an absurd
situation would arise where the same administrative agency
would have diametrically opposed conclusions based on
apparently similar circumstances.” This is what will happen -
for the second case, there is ER-EE relationship. It is the same
agency which said there is none in the first case. Conflict!
OTHER PRINCIPLES IN LAW WHICH MAY BE
CONFUSED WITH RES JUDICATA:
A.) LAW OF THE CASE
B.) STARE DECISIS
Another question that can be asked here is, how to explain and
distinguish 3 concepts which appear to be similar. These 3
concepts are all anchored on the same thing: there is a final
judgement. The concept of res adjudicata, law of the case and
stare decisis. That was also asked in the bar.
We already know RES ADJUDICATA – finality of judgment, or
the issues decided in a case, once the decision has become final
and executory and cannot be litigated again by the same parties
in a subsequent action involving the same subject matter.
(Peñalosa vs.
Tuazon, supra.)
Q: What about the LAW OF THE CASE?
A: LAW OF THE CASE means that legal conclusions announced
on a first appeal, whether on the general law of the law as
applied to the concrete facts, not only prescribe the duty and limit
the power of the trial court to strict obedience and conformity
thereto, but they become and remain the law of the case in all
after steps, whether in the lower court or in the appellate court on
a subsequent appeal.
(Zarate vs. Dir. of Lands, 39 Phil. 747)
EXAMPLE of law of the case: There is a case between us and
then an issue is raised before the CA and there is a ruling, right
or wrong. That ruling will subsequently bind the parties in the
same litigation. Once the case comes back, the future now of
the case will be governed by that ruling. Right or wrong, that
principle will now be the controlling principle affecting the
parties. The principle will continue until the case is terminated.
TABACO vs. CA – 239 SCRA 485 [1994]
ISSUE: Can a case be re-opened if the law of the case has been
changed?
HELD: NO, because when the case was decided, it was the
governing law at the time, even if it turns out to be wrong.
“Under the law of the case concept, whatever is once irrevocably
established as the controlling legal principle or decision
continues to be the law of the case between the same parties in
the same case, whether correct or not, so long as the facts on
which such decision was predicated continue to be the facts of
the case before the court. Such stability and conclusiveness
given to final judgments of courts of competent jurisdiction are
said to be grounded on reasons of public policy, judicial
orderliness and economy as well as protection of the time and
interests of the litigants.”
A good EXAMPLE: File ako ng kaso – collection of an unpaid
loan based on the provision of the Civil Code but the debtor
said, “There is no cause of action because the provision of the
civil code is unconstitutional.” After trial the court said, “Yes,
article so-so of the Civil Code is unconstitutional. The debtor is
not obliged to pay.” Tapos na. Final na ang decision because
there was no appeal. What will happen? We are bound. As far as
this case is concerned, the Civil Code is unconstitutional. That
is the law of the case.
KILOSBAYAN vs. MORATO – 246 SCRA 540 [1995]
HELD: The doctrine of the law of the case applies whenever the
case before the court came for the second time after a ruling of
the appellate court (???).
Q: What you mean by STARE DECISIS?
A: Stare Decisis means that the decision of a court should stand
as precedents for future guidance (Ballentine’s Law Dict., 2nd
Ed., 1228) Example is the decisions of the SC which stands as
precedents for future cases. The purpose of this is to attain
stability and judicial order. That is why we are citing
precedents.
ROSALES vs. CFI – 154 SCRA 153 [1987]
HELD: “Precedents are helpful in deciding cases when they are
substantially identical with previous litigations. Argumentum a
simili valet in lege. Earlier decisions are guideposts that can lead
us in the right direction as we tread the 'highways and byways
of the law in the search for truth and justice. These
pronouncements represent the wisdom of the past. They are the
voice of vanished judges talking to the future. Except where
there is a need to reverse them because of an emergent
viewpoint or an altered situation, they urge us strongly that,
indeed, the trodden path is best.”
‘Trodden Path’ – example is when you go on hiking like in Mt.
Apo. If there is already a path or trail, you will not have a hard
time looking for your way up to the peak of Mt. Apo. There is
already a way which will guide you to reach your destination.
But the doctrine of stare decisis admittedly does not mean that
courts should be slave forever to precedents. A doctrine long
standing has also been reversed. The SC explained also why
once in a while it abandons the doctrine of stare decisis:
PEOPLE vs. MUÑOZ – 170 SCRA 107 [1989]
HELD: “If we have seen fit to take a second look at the doctrine
on which we were all agreed before, it is not because of a change
in the composition of this body. It is virtually the same Court
that is changing its mind after reflecting on the question again
in the light of new perspectives. The decisions of this Court are
not petrified rules grown rigid once pronounced but vital,
growing things subject to change as all life is. While we are told
that the trodden path is best, this should not prevent us from
opening a fresh trial or exploring the other side or testing a new
idea in a spirit of
continuing inquiry.”
Q: Distinguish Res Adjudicata and Stare Decisis.
A: RES ADJUDICATA operates between two actions involving
the same parties and the same cause(of action); while STARE
DECISIS refers to cases with different parties.
STARE DECISIS refers only to decisions of the SC (decisions of
the CA are not a basis of stare decisis); while the doctrine of
RES ADJUDICATA refers to all courts: SC, CA, RTC and MTC.
Q: Distinguish Law Of The Case and Stare Decisis.
A: LAW OF THE CASE refers only to one case which may or
may not be invoked in subsequent cases, while STARE
DECISIS may refer to various cases which are usually invoked
in subsequent cases.
Sec. 48. Effect of foreign judgments or final
orders. - The effect of a judgment or final
order of a tribunal or a foreign country,
having jurisdiction to render the judgment
or final order is as follows:
(a) In case of a judgment or final order upon a
specific thing, the judgment or final order
is conclusive upon the title to the thing;
and
(b) In case of a judgment or final order
against a person, the judgment or final
order is presumptive evidence of a right as
between the parties and their successors
in interest by a subsequent title.
In either case, the judgment or final order
may be repelled by evidence of a want of
jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or
fact. (50a)
Sec. 48 is actually a law on conflict of laws - effect of foreign
judgment. If a judgment is rendered in U.S. and is being
invoked in the Philippines, should we honor it? Yes. So, is it
conclusive? Yes. The law says, in case of judgment upon a
specific thing, the judgment or final order is conclusive
effectively.
PROBLEM: Mortverine and Mistiqla were both in the U.S. and
they quarreled about the ownership of a ring. They went to an
American court. After trial, the court ruled that Mortverine is
the legitimate owner of the ring. The judgment became final.
Subsequently both of them came to the Philippines and Mistiqla
filed a case against Mortverine to recover the same ring. Sabi ni
Mortverine, “Res adjudicata na ito eh, tapos na yan. Here is the
decision in America.
Therefore it is settled.”
Q: Is A correct?
A: YES. Under paragraph [a]. In case of a foreign judgment
upon a SPECIFIC THING, the judgment is conclusive upon the
parties. Hindi puwedeng buksan. That’s already litigated
abroad, merong nang decision. We will respect it.
Suppose the judgment is against a person. The law says it is
presumptive evidence of a right as between the parties.
EXAMPLE: A and B were both Americans. They were married in
the U.S. and obtained a divorce in the states. They came to the
Philippines. The issue is whether the marriage was validly
terminated. According to one party, “Yes, meron man tayong
divorce ba.” Is the decree of divorce abroad involving these
American couple allowed in the Philippines considering we have
no divorce here? That is their law. It is presumptive evidence of
a right of the parties.
EXAMPLE: H and W are Philippine citizens. They went abroad
and somehow able to get a divorce in an American court which
became final. They came back here. Will the Philippine court
honor the divorce? Here, the judgment may be repelled by want
of jurisdiction of the American court, etc. The judgment is
presumed to be valid unless you can attack by showing lack of
jurisdiction.
What is the principle in private international law? A judgment of
divorce rendered by an American court between 2 Filipinos is
null and void. Why? The American court never acquired
jurisdiction over the status of the parties (because they are not
U.S. citizens). But judgment in personam is honored here
except when there is want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact.
Q: How do you enforce a foreign judgment?
A: The usual procedure, you file a case against the same
defendant here and the cause of action is enforcement of a
foreign judgment. And then the Philippine court will render a
judgment enforcing it and then you can execute.
The SC commented on the enforcement of a foreign judgment in
the Philippines in the case of
PHILSEC vs. CA – June 19, 1997

HELD: “While this court has given the effect of res judicata to
foreign judgments in several cases, it was after the parties
opposed to the judgment had been given ample opportunity to
repel them on grounds allowed under the law. It is not
necessary for this purpose to initiate a separate action or
proceeding for enforcement of the foreign judgment. What is
essential is that there is opportunity to challenge the foreign
judgment, in order for the court to properly determine its
efficacy. This is because in this jurisdiction, with respect to
actions in personam, as distinguished from actions in rem, a
foreign judgment merely constitutes prima facie evidence of the
justness of the claim of a party and, as such, is subject to proof
to the contrary.”
APPEALS
Rule 40
APPEAL FROM MUNICIPAL TRIAL COURTS
TO THE REGIONAL TRIAL COURTS
APPEAL – The law on appeal starts from Rule 40 to Rule 56.
Usually the appeal is from the trial court to the next higher
court. Under the judiciary law, appeals from the MTC should be
to the RTC which is governed by Rule 40. And when the case is
tried by the RTC and you want to appeal, normally, the appeal
should be to the CA under Rule 41.
General principles on appeal
1) The right to appeal is not part of due process but a mere
statutory privilege that has to be exercised only in the
manner and in accordance with the provisions of law.
(StoltNielsen vs. NLRC GR No. 147623, December 13,
2005)
2) The right to appeal is not a constitutional right or a
natural right (Canton vs. City of Cebu GR No. 152898,
February 12, 2007).
3) The general rule is that the remedy to obtain reversal or
modification of judgment on the merits is appeal. This is
true even if the errors, ascribed to the court rendering
the judgment, is its lack of jurisdiction over the subject
matter, or the exercise of power in excess thereof, or
grave ABUSE OF DISCRETION IN THE FINDINGS OF
FACTS OR OF LAW SET OUT IN THE DECISION
(Association of Integrated Security Force of Bislig-ALU vs.
CA GR No. 140150 August 22, 2005).
4) A subsequent case similarly held that a party is not
ALLOWED TO QUESTION THE DECISION ON THE
MERITS AND ALSO INVOKE THE EXTRAORDINARY
REMEDY OF CERTIORARI UNDER Rule 65 and an
ordinary appeal under Rule 41 cannot be allowed since
one remedy would necessarily cancel out the other
(Manacap vs. Equitable-PCI Bank, 468 SCRA 256).
5) An appeal may be taken only from judgments or final
orders that completely disposes of the case (Sec. 1 R 41).
An interlocutory order is not appealable until after the
finality of the judgment on the merits.
Judgments or orders that are not appealable
As found in the enumeration in Sec. 1 Rule 41, they are as
follows:
(An order denying a motion for new trial or a motion for
reconsideration; This is no longer part of the enumeration as of
Dec. 27, 2007 per A.M. No. 07-7-12-SC)
1) An order denying a petition for relief or any similar
motion seeking relief from judgment;
2) An interlocutory order;
3) An order disallowing or dismissing an appeal (Heirs of
Gaudiano vs. Benemerito GR No. 174247, February 21,
2007);
4) An order denying a motion to set aside a judgment by
consent, confession or compromise on the ground of
fraud, mistake or duress, or any other ground vitiating
consent;
5) An order of execution;
6) A judgment or final order for or against one or more of
several parties or in separate claims, counterclaims,
cross claims, and third party complaints, while the
main case is pending, unless the court allows an appeal
therefrom; and 7) An order dismissing an action without
prejudice.
Remedy in case the judgment or final order is not
appealable
In those instances where the judgment or final order is not
appealable, the aggrieved party may file the appropriate special
civil action under Rule 65 (Sec. 1 R 41). However, as of
December 27, 2007, an aggrieved party may no longer assail an
order denying a motion for new trial or a motion for
reconsideration by way of Rule 65 as per A.M. No. 07-7-12-SC,
such ground having been removed from the enumeration in Sec.
1 of Rule 41. The proper remedy is to appeal from the judgment
(Sec. 9 R 37).
Issues that may be raised on appeal
It is already well-settled in this jurisdiction that a party may not
change his theory of the case on appeal. Such rule has been
expressly adopted in Rule 44, Section 15 of the 1997 Rules of
Civil
Procedure, which provides –
Sec. 15. Questions that may be raised on appeal-
Whether or not the appellant has filed a motion for new trial in
the court below, he may include in his assignment of errors any
question of law or fact that has been raised in the court below
and which is within the issues framed by the parties.
Also, defenses not pleaded in the answer may not be raised for
the first time on appeal. A party cannot, on appeal, change
fundamentally the nature of the issue in the case. When a party
deliberately adopts a certain theory and the case is decided
upon that theory in the court below, he will not be permitted to
change the same on appeal, because to permit him to do so
would be unfair to the adverse party. Accordingly, “courts of
justice have no jurisdiction or power to decide a question not in
issue.” Thus, a judgment that goes beyond the issues and
purports to adjudicate something on which the court did not
hear the parties, is not only irregular but also extrajudicial and
invalid. The rule rests on the fundamental tenets of fair play
(Com. of Internal Revenue vs.
Migrant Pagbilao Corp. GR 159593, October 12, 2006).
Issues that the appellate court decides on appeal
A reading of the terms of Sec. 8 of Rule 51 discloses a basic
appellate rule with respect to unassigned errors: The appellate
court shall consider no error unless stated in the assignment of
errors.
Accordingly, a question that was never raised in the courts
below cannot be allowed to be raised for the first time on appeal
without offending basic rules of fair play, justice and due
process (Bank of Commerce vs. Serrano 451 SCRA 484).
For an appellate court to consider a legal question, it should
have been raised in the court below (Philippine National Oil
Company vs. CA 457 SCRA 32). It would be unfair to the
adverse party who would have no opportunity to present
evidence in contra to the new theory, which it could have done
had it been aware of it at the time of the hearing before the trial
court. It is true that this rule admits of exceptions as in cases of
lack of jurisdiction, where the lower court committed plain
error, where there are jurisprudential developments affecting
the issues, or when the issues raised present a matter of public
policy (Baluyot vs. Poblete GR 1444435 February 6, 2007;
Pineda vs. Heirs of Eliseo Guevara, GR 143188, February 14,
2007).
As a rule no question will be entertained on appeal unless it has
been raised in the court below. Points of law, theories, issues
and arguments not brought to the attention of the lower court
ordinarily will not be considered by a reviewing court because
they cannot be raised for the first time at that late stage. Basic
considerations of due process underlie this rule. It would be
unfair to the adverse party who would have no opportunity to
present evidence in contra to the new theory, which it would
have done had it been aware of it at the time of the hearing
before the trial court. To permit petitioner at this stage to
change his theory would thus be unfair to respondent, and
offend the basic rules of fair play, justice and due process
(Canada vs. All Commodities Marketing Corp. GR 146141,
October 17, 2008).
When errors not raised on appeal may be considered
The rule that the appellate court shall not consider errors not
raised in the assignment of errors is not an absolute one. Sec. 8
of R 51 precludes its absolute application allowing as it does
certain errors which even if not assigned may be ruled upon by
the appellate court. Hence, the court may consider an error not
raised on appeal provided the same falls within any of the
following Categories:
(a) It is an error that affects the jurisdiction over the
subject matter;
(b) It is an error that affects the validity of the judgment
appealed from;
(c) It is an error which affects the proceedings;
(d) It is an error closely related to or dependent on an
assigned error and properly argued in the brief (Heirs
of Marcelino Doronio vs. Heirs of Fortunato Doronio,
5341 SCRA 479 [2008]).
(e) It is a plain clerical error.
The fact that the plaintiff’s brief did not raise the lack
of jurisdiction at the trial court should not prevent the
Court of Appeals from taking up the issue of lack of
jurisdiction (Calimlim vs. Ramirez 118 SCRA 399; Dy
vs.
NLRC 145 SCRA 211)
Jurisprudence likewise provides some exceptions to the
rule
a) Declared the SC: “The Supreme Court is clothed with
ample authority to review matters, even if they are not
assigned as errors on appeal, if it finds that their
consideration is necessary in arriving at a just decision
of the case. (Dumo vs. Espinas GR 141962, January
25, 2006; Comilang vs. Burcena, GR No. 146853,
February 13, 2006; Boston Bank vs. Manalo GR
158149 February 9, 2006).
b) In one case, although petitioners did not raise as issue
the appellate court’s reversal of the award of damages
in their favor, the Court has the discretion to pass
upon this matter and determine whether or not there
is sufficient justification for the award of damages
(Sps. Romulo and Sps. Layug, GR 151217, September
8, 2006).
It has also been held that the CA for instance, is imbued with
sufficient authority and discretion to review matters, not
otherwise assigned as errors on appeal, if it finds that the
consideration is necessary in arriving at a complete and just
resolution of the case or to serve the interests of justice or to
avoid dispensing piecemeal justice (Asian Terminals Inc. vs.
NLRC 541 SCRA 105 [2007]).
Appeals in criminal cases
In a criminal case, an appellate court appears to enjoy wide
latitude in deciding an appealed case. Thus:

“In criminal cases, it is axiomatic that where an accused
appeals the decision against him, he throws open the whole
case for review and it then becomes the duty of the SC to
correct any error as may be found in the appealed judgment,
whether it was made the subject of assignment of errors or not.”
(Dico vs. CA GR 141669 February 28, 2005; Ferrer vs. People
GR 143487 February 22, 2006; Abedes vs. CA 536 SCRA 268
[2007]).
An appeal in a criminal case opens the entire case for review.
The Court can correct errors unassigned in the appeal (People
vs. de la Torre GR 176637 October 6, 2008).
Payment of docket fee
The Court has consistently held that payment of docket fee
within the prescribed period is mandatory for the perfection of
an appeal. Without such payment, the appellate court does not
acquire jurisdiction over the subject matter of the action and
the decision sought to be appealed from becomes final and
executory (Regalado vs. Go GR 167988 February 6, 2007).
Payment of docket fees and other legal fees within the
prescribed period is both mandatory and jurisdictional,
noncompliance without which is fatal to an appeal. The full
amount of the appellate court docket and other lawful fees must
be paid to the clerk of court which rendered the judgment or
final order appealed from. Without the payment of docket fees
the appeal is not perfected and the appellate court does not
acquire jurisdiction to entertain the appeal, thereby rendering
the decision sought to be appealed final and executory.
Nonpayment of the appellate court docket and other lawful fees
within the reglementary period is a ground for the dismissal of
an appeal (Cu-Unjieng vs. CA 479 SCRA 594 January 24, 2006).
Note however that in the exercise of its impartial jurisdiction,
the Court allows a liberal construction of the rules on the
manner and periods for perfecting appeals in order to serve the
demands of substantial justice.
The established rule is that the payment in full of the docket
fees within the prescribed period is mandatory. Nevertheless,
this rule must be qualified to wit:
First, the failure to pay appellate docket fee within the
reglementary period allows only discretionary dismissal, not
automatic dismissal of the appeal;
Second, such power should be used in the exercise of the
Court’s sound discretion “in accordance with the tenets of
justice and fair play and with great deal of circumspection
considering all attendant circumstances” (Republic vs. Sps Luriz
GR 158992 January 26, 2007).
Record on appeal; notice of appeal
An appeal is normally made by filing a notice of appeal with the
court which rendered the judgment or final order appealed from
(Sec. 2(a), Rule 41, Rules of Court). No record on appeal shall be
required except in special proceedings and other cases of
multiple or separate appeals where the law or the Rules of Court
so require.
In a case where multiple appeals are allowed, a party may
appeal only a particular incident in the case and not all of the
matters involved in the same case. The others which are not
made the subject of the appeal remain to be resolved by the trial
court. The record on appeal is required so the appellate court
may have a record of the proceedings to resolve a separate and
distinct issue raised in the appeal, and since the original
records remain with the trial court it still can resolve the other
issues of the case not made subject of the appeal.
Illustration:
Jurisprudence recognizes the existence of multiple appeals in a
complaint for expropriation because there are two stages in
every action for expropriation. The first stage is the
determination of the lawful right of the plaintiff to take the
property sought to be expropriated culminating in an order of
expropriation (Sec. 4 R 67). This order of expropriation may be
appealed by any party by filing a record on appeal (Tan vs.
Republic 523 SCRA 203).
The second stage is the determination by the court of the just
compensation for the property sought to be expropriated. A
second and separate appeal may be taken from this order fixing
the just compensation (Tan vs. Republic, supra).
Multiple appeals are allowed in special proceedings, in actions
for recovery of [property with accounting, in the special actions
for eminent domain and foreclosure of mortgage. The rationale
behind allowing more than pone appeal in the same case is to
enable the rest of the case to proceed in the event that a
separate and distinct issue is resolved by the court and held to
be final (Roman Catholic Archbishop of Manila vs. CA GR
111324 July 5, 1996).
Note:
If however, the trial court has fully and finally resolved all the
issues in the complaint for expropriation, there is no need to file
a record on appeal even in an expropriation case. Illustrative of
this rule is the case of Marinduque Mining and Industrial
Corporation vs. CA GR 161219, October 6, 2008. In its decision,
the trial court already determined two main issues, namely,
Respondent NAPOCOR’s authority to exercise the power of
eminent domain and the just compensation for the property
sought to be expropriated. NAPOCOR initially filed a motion for
reconsideration but after the trial court denied the motion,
NAPOCOR no longer appealed the decision. Then, in a
subsequent Supplemental Decision, the trial court fixed the just
compensation for what it called the “dangling area”, which is the
area not subject of the complaint for expropriation but which
the court held should nevertheless also be paid by NAPOCOR
because of consequential damages to the property. NAPOCOR
filed a motion for reconsideration of this Supplemental Decision
and the trial court denied the motion. NAPOCOR then filed a
notice of appeal but did not file a record on appeal. Petitioner
raised issue as to this failure alleging that a record on appeal is
required in an appeal of a judgment in an expropriation case.
The Court ruled that at this stage, the trial court had no more
issues to resolve and there was no reason why the original
records of the case must remain with the trial court. There was
then no need for NAPOCOR to file a record on appeal because
the original records could already be sent to the appellate court.
Perfection of the appeal
A party’s appeal by notice of appeal is deemed perfected as to
him upon the filing of the notice of appeal in due time. A party’s
appeal by record on appeal is deemed perfected as to him with
respect to the subject matter thereof upon the approval of the
record on
appeal filed in due time (Sec. 4R 40 in relation to Sec. 9 R 41)
The notice of appeal does not require the approval of the court.
The function of the notice of appeal is merely to notify the trial
court that the appellant was availing of the right to appeal, and
not to seek the court’s permission that he be allowed to pose an
appeal
(Crisologo vs. Daray, A.M. RTJ-07-2036, August 30, 2006)
We will stick to the basic rule on appeal found in the judiciary
law, Section 39, BP 129:
Sec 39. Appeals. - The period for appeal
from final orders, resolutions, awards,
judgments or decisions of any court in all
cases shall be fifteen (15) days counted
from the notice of the final order,
resolution, award, judgment, or decision
appealed from: Provided, however, That in
habeas corpus cases, the period for appeal
shall be forty-eight (48) hours from the
notice of the judgment appealed from.
No record on appeal shall be required to
take an appeal. In lieu thereof, the entire
original record shall be transmitted with
all the pages prominently numbered
consecutively, together with an index of
the contents thereof.
This section shall not apply in appeals in
special proceedings and in other cases
wherein multiple appeals are allowed under
applicable provisions of the Rules of Court.
There are three (3) instances under Section 39:
Type of Case Period to Requisites f or
appeal appeal
A. Civil Actions in 15 Notice appeal of
general days
B. Special 30 1. Notice of
Proceedings and days Appeal on
Civil Actions 2. Record
where multiple Appeal
appeal is
allowed
C. Habeas Corpus 48 Notice Appeal of
hours
So this is the general outline of the law on appeals under
Section 39, BP 129.
[EDITOR’S NOTE:] The 48-hour period to appeal in habeas
corpus cases under Section 39 of BP 129 is now incorporated in
Rule 41, Section 3 as amended, which took effect last July 15,
2000 (A.M.
No. 01-1-03-SC)]
Rule 40 refers to appeal from the MTC to the RTC. The appellate
jurisdiction of the RTC is found in Section 22, BP 129. That is
why Rule 40 is revolving around that provision:
BP 129, Sec. 22. Appellate jurisdiction. -
Regional Trial Courts shall exercise
appellate jurisdiction over all cases
decided by MetTCs,
MTCs and MCTCs in their respective
territorial jurisdictions. Such cases shall
be decided on the basis of the entire
record of the proceedings had in the court
of origin and such memoranda and/or
briefs as may be submitted by the parties
or required by the RTCs. The decision of
the RTCs in such cases shall be appealable
by petition for review to the CA which
may give it due course only when the
petition show prima facie that the lower
court has committed an error of fact or
law that will warrant a reversal or
modification of the decision or judgment
sought to be reviewed.
Let us now go to Section 1 of Rule 40:
Section 1. Where to appeal. An appeal from
a judgment or final order of a Municipal
Trial Court may be taken to the Regional
Trial Court exercising jurisdiction over the
area to which the former pertains. The
title of the case shall remain as it was in
the court of origin, but the party appealing
the case shall be further referred to as the
appellant and
the adverse party as the appellee. (n)
So from the MTC, the appeal is to the RTC exercising
jurisdiction over the area to which the former pertains. That is
why under the judiciary law, every RTC has a designated
territorial area. So, if you want to appeal from the decision of
the MTC of Davao City, you appeal to the RTC of Davao. You do
not make your appeal to the RTC of Tagum because it does not
exercise jurisdiction over Davao City.
And take note under Section 1, it is now required that when you
appeal from the MTC to the RTC, you should indicate in the
caption of the case who is the APPELLANT and the APPELLEE.
This is also the procedure when you are appealing to the SC.
The appellant is the party appealing the case while the appellee
is the adverse party. So for example, the original title of the case
in the MTC is: “JOBOY, plaintiff vs. BROSIA, defendant.” If
Joboy will appeal the case, the title of the case now in the RTC
will be: “JOBOY, plaintiff-appellant vs. BROSIA, defendant-
appellee.” Or, if Brosia will be the one appealing the case, the
title now will be:
“JOBOY, plaintiff-appellee vs. BROSIA, defendant-appellant.”
The period to appeal is in Section 2:
Sec. 2. When to appeal. An appeal may be
taken within fifteen (15) days after notice
to the appellant of the judgment or final
order appealed from. Where a record on
appeal is required, the appellant shall file a
notice of appeal and a record on appeal
within thirty (30) days after notice of the
judgment or final order.
The period of appeal shall be interrupted
by a timely motion for new trial or
reconsideration. No motion for extension
of time to file a motion for new trial or
reconsideration shall be allowed. (n)
In relation to certain jurisprudence, the 15-day period cannot be
extended. (Lacsamana vs. IAC, 143 SCRA 643) It cannot be
extended but it can be interrupted by a timely motion for new
trial or reconsideration. And no motion for extension of time to
file a motion for new trial or reconsideration shall be allowed.
(Section 2)
Q: How about the 30-day period? Is the 30-day period
extendible?
A. YES. It is extendible for record on appeal, on the condition
that the Motion to Extend must be filed within the original 30
days and provided further that the movant has no right to
expect that his motion will be granted.
So the 15-day period can never be extended but the 30-day
period is extendible based on jurisprudence. This is because a
notice of appeal is normally a one-paragraph document. You
can do that in just 5 minutes. But a record on appeal is
makapal. That is why it is 30 days. Sometimes kulangin pa
yung 30-day period. So you can extend it provided you file the
motion for extension during the original 30-day period.
Sec. 3. How to appeal. The appeal is taken
by filing a notice of appeal with the court
that rendered the judgment or final order
appealed from. The notice of appeal shall
indicate the parties to the appeal, the
judgment or final order or part thereof
appealed from, and state the material
dates showing the timeliness of the appeal.
A record on appeal shall be required only in
special proceedings and in other cases of
multiple or separate appeals.
The form and contents of the record on
appeal shall be as provided in section 6,
Rule 41.
Copies of the notice of appeal, and the record
on appeal where required, shall be served on
the adverse party. (n)
Q: How do you appeal?
A: Under Section 3, you file a Notice of Appeal to the court that
rendered judgment, so MTC. And it “shall indicate the parties to
the appeal, the judgment or final order or part thereof appealed
from, and state the material dates showing the timeliness of the
appeal.” For example:
Notice of Appeal
Defendant hereby serves notice that
he is appealing to the RTC from the
judgment rendered by the MTC dated
March 5, 1998 copy of which was
received by him on March 15, 1998.
So it is very simple to make. And you must indicate exactly not
only the date of the decision but also the date when you
received it because the period to appeal does not run from the
date of the decision but from the time you received it. That is
why the rule says, you “must state the material dates showing
the timeliness of
the appeal.” (Record on appeal is discussed in Rule 41, Section
6.)
Of course, the adverse party should be furnished with a copy of
the notice of appeal.
Sec. 4. Perfection of appeal; effect thereof.
The perfection of the appeal and the effect
thereof shall be governed by the
provisions of section 9, Rule 41.
Q: When is the appeal deemed perfected?
A: See discussion under Section 9, Rule 41. From the moment
the appeal is deemed perfected, the MTC loses jurisdiction over
the case. And by fiction of law, jurisdiction is automatically
transferred to the RTC.
Sec. 5. Appellate court docket and other
lawful fees. Within the period for taking an
appeal, the appellant shall pay to the clerk
of the court which rendered the judgment
or final order appealed from the full
amount of the appellate court docket and
other lawful fees.
Proof of payment thereof shall be
transmitted to the appellate court
together with the original record or the
record on
appeal, as the case may be. (n)
Within the period to appeal (normally within 15 days), the
appellant must pay the docket fee. So that when the records are
transmitted, bayad na. Even before this rule came out, the
payment of appellate docket fee is really required. The rule is
the same.
Q: Suppose I will file my Notice of Appeal within 15 days but I
will not pay the docket fee, should my appeal be dismissed? Is it
an additional requirement for appeal?
A: In the case of
SANTOS vs. CA – 253 SCRA 632 [1996]
ISSUE: Will the failure to pay appellate fee automatically cause
the dismissal of the appeal in the MTC to the RTC?
HELD: The payment of appellate fee is found in Section 8 of
Rule 141. But the SC observed that the only requirement is
Notice of Appeal. There is no mention of appellate fee. The
payment of appellate fee is not a requisite to the perfection of an
appeal although Rule 141 does not specify when said payment
shall be made. It does not automatically result in the dismissal
of the appeal unless it affects the jurisdiction. The dismissal
being discretionary on the part of the appellate court, such
dismissal should be exercised wisely.
This ruling is still applicable. Although Section 5 prescribes that
within the period to take appeal you must pay the docket fee. If
you do not pay it, it may not cause ipso facto the dismissal of
your appeal. But the clerk of court may refuse to transmit the
record to the RTC until you pay. So docket fee is not a
requirement to perfect an appeal although it is an obligation
also.
Sec. 6. Duty of the clerk of court. Within
fifteen (15) days from the perfection of the
appeal, the clerk of court or the branch
clerk of court of the lower court shall
transmit the original record or the record
on appeal, together with the transcripts
and exhibits, which he shall certify as
complete, to the proper Regional Trial
Court. A copy of his letter of transmittal of
the records to the appellate court shall be
furnished the parties.
(n)
What is the requirement to perfect an appeal? It is notice of
appeal only or record on appeal also for special proceedings.
Section 5 of this rule now states that when the party takes an
appeal, it is the obligation of the appellant to pay the appellate
docket fee which is imposed by Rule 141 so that the clerk of the
MTC will elevate the appeal to the MTC.
Sec. 7. Procedure in the Regional Trial Court.
(a) upon receipt of the complete record or
the record on appeal, the clerk of court of
 the Regional Trial Court shall notify the
parties of such fact.
(b) Within fifteen (15) days from such notice,
it shall be the duty of the appellant to
submit a memorandum which shall briefly
discuss the errors imputed to the lower
court, a copy of which shall be furnished
by him to the adverse party. Within fifteen
(15) days from receipt of the appellant’s
memorandum, the appellee may file his
memorandum. Failure of the appellant to
file a memorandum shall be a ground for
dismissal of the appeal.
(c) Upon the filing of the memorandum of the
appellee, or the expiration of the period to
do so, the case shall be considered
submitted for decision. The Regional Trial
Court shall decide the case on the basis of
the entire record of the proceedings had in
the court of
origin and such memoranda as are filed. (n)
What happens if the case reaches the RTC? Section 7 answers
it. The clerk of court shall notify the parties. What is important
here is paragraph [b], a radical provision:
(b) Within fifteen (15) days from such
notice, it shall be the duty of the appellant
to submit a memorandum which shall
briefly discuss the errors imputed to the
lower court, a copy of which shall be
furnished by him to the adverse party.
Within fifteen (15) days from receipt of the
appellant’s memorandum, the appellee
may file his memorandum. Failure of the
appellant to file a memorandum shall be a
ground for dismissal of the appeal.
The procedure under the OLD RULES is found on Section 22 of
the Interim Rules. When the case is appealed to the RTC, the
case will be decided by the RTC based on the record on appeal
together with a memorandum as the court may require the
parties. In other words, the court may or may not require the
parties to file a memorandum.
NOW, the present rule says, within 15 days from notice, it is
your obligation to file a memorandum. If the appellant fails to
file a memorandum in the RTC, his appeal will be dismissed.
The filing of an appeal memorandum in the RTC is mandatory
because you must point out to the RTC kung saan nagkamali.
You help the RTC judge look for the error.
Q: Suppose the appellant has filed his memorandum and it is
the appellee who failed to file his memorandum. What is the
effect of such failure?
A: Under paragraph [c], the case shall be submitted for decision
without appellee’s memorandum. And it does not necessarily
mean that the appellee will lose the case by not filing his
memorandum because for all you know the decision of the lower
court is very clear, whether he files a memorandum or not, he
will still wins.
Another radical change is Section 8:
Sec. 8. Appeal from orders dismissing case
without trial; lack of jurisdiction. If an appeal
is taken from an order of the lower court
dismissing the case without a trial on the
merits, the Regional Trial Court may
affirm or reverse it, as the case may be. In
case of affirmance and the ground of
dismissal is lack of jurisdiction over the
subject matter, the Regional Trial Court, if
it has jurisdiction thereover, shall try the
case on the merits as if the case was
originally filed with it. In case of reversal,
the case shall be remanded for further
proceedings.
If the case was tried on the merits by the
lower court without jurisdiction over the
subject matter, the Regional Trial Court
on appeal shall not dismiss the case if it
has original jurisdiction thereof, but shall
decide the case in accordance with the
preceding section, without prejudice to
the admission of amended pleadings and
additional
evidence in the interest of justice. (n)
The case was dismissed by the MTC without trial on the merits.
PROBLEM: Tomas filed a case against Ka Noli to collect a loan
of P50,000 before the MTC. But upon motion to dismiss alleging
that MTC has no jurisdiction, the court dismissed the complaint
without trial. That is disposing of the case without trial. Now,
RTC said,
“MTC has jurisdiction.”
Q: In that case, what will the RTC do?
A: The RTC will order the MTC to conduct trial.
PROBLEM: Suppose the complaint filed by Tomas against Ka
Noli is for P500,000 before the MTC. It is clear that the MTC has
no jurisdiction. Ka Noli moved to dismiss the case and it was
dismissed. But Tomas appealed to the RTC believing that the
dismissal was wrong. Of course the order of the MTC is correct.
It should have been filed with the RTC.
Q: What will happen now to the case?
A: The RTC will not dismiss the case but instead assumes
jurisdiction. The RTC which has jurisdiction, shall try the case
on the merits as if the case was originally filed in the RTC.
The second paragraph has slight modification:
PROBLEM: Tomas files a case against Ka Noli for P500,000
before the MTC. Ka Noli file a motion to dismiss on the ground
of lack of jurisdiction. But the motion to dismiss of Ka Noli was
denied and the court tried the case. So, the trial is void. The
judgment rendered is also void. So Ka Noli appealed.
Q: What will happen on appeal from the decision of the MTC
which tried a case even though it has no jurisdiction over it?
A: Since the decision (on the merits) was appealed to the RTC,
the RTC will assumes jurisdiction over the case. The RTC will
convert the appellate jurisdiction into an original jurisdiction
instead of dismissing an appeal. It will treat it as if it has been
filed for the first time in the RTC and not as an appealed case.
The purpose here is to avoid double payment of docket fees.
Sec. 9. Applicability of Rule 41. The other
provisions of Rule 41 shall apply to appeals
provided for herein insofar as they are not
inconsistent with or may serve to
supplement the provisions of this Rule. (n)
Rule 41 provisions may also be used in appeals from MTC to
RTC. It is more comprehensive. It refers to appeal from RTC to
CA on cases decided by the RTC pursuant to its original
jurisdiction. This is also applicable to Rule 40 insofar as they
are not inconsistent.
Rule 41
APPEAL FROM THE REGIONAL TRIAL COURTS
Majority of the important rules are found here in Rule 41.
Section 1. Subject of appeal. An appeal may
be taken from a judgment or final order
that completely disposes of the case, or of
a particular matter therein when declared
by these Rules to be appealable.
No appeal may be taken from:
(a) An order denying a motion for new trial or
reconsideration;
(b) An order denying a petition for relief or any
similar motion seeking relief from
judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing an
appeal;
(e) An order denying a motion to set aside a
judgment by consent, confession or
compromise on the ground of fraud, mistake or
duress, or any other ground vitiating
consent;
(f) An order of execution;
(g) A judgment or final order for or against one or
more of several parties or in separate claims,
counterclaims, cross-claims and thirdparty
complaints, while the main case is pending,
unless the court allows an appeal therefrom;
and
(h) An order dismissing an action without
prejudice.
In all the above instances where the judgment
or final order is not appealable, the aggrieved
party may file an appropriate special civil action
under Rule 65. (n)
Q: What orders or judgment are subject to appeal ?
A: Only FINAL judgments or orders can be appealed as
distinguished from interlocutory judgments or orders
(paragraph [c])which are not appealable.
NOTE: If appeal is available, certiorari under Rule 65 cannot be
available!! 
FINAL JUDGMENT OR ORDERS—the term ‘final’ has two (2)
possible meanings in Civil Procedure:
[1] The judgment is final in the sense that it is already
executory and that happens if there is no appeal. And
that is for purposes of applying Rule 39 on execution.
[2] The judgment is final in the sense that it is not merely
interlocutory and this is for the purpose of applying the
law on appeal under Rule 41. In other words, a final order
or judgment (for purposes of appeal) is one which is not
merely interlocutory in the sense that it completely
disposes of the case or a particular matter therein where
there is nothing more for the court to do after its rendition.
(Bairan vs. Tan Sui
Lay, L-19460, Dec. 28, 1966)
Q: What is the definition of a final judgment or for purpose
of appeal?
A: A judgment or order is final if it disposes of the pending
action so that nothing more can be done in the trial court with
respect to its merits. (Salazar vs. De Torres, 58 O.G. 1713, Feb.
26, 1962;
Bairan vs. Tan Sui Lay, L-19460, Dec. 28, 1966)
Q: On the other hand, what is an interlocutory judgment or
order?
A: An interlocutory order is something which does not
completely dispose of the action and there is still something for
the court to do after its rendition. (Olsen & Co. vs. Olsen, 48
Phil. 238; Restauro vs. Fabrica, 80 Phil. 762) Actually, the law
does not prohibit a party from appealing an interlocutory
judgment or order, only you
cannot appeal immediately. (Abesamis vs. Garcia, 98 Phil. 762)
Q: What is the test for determining whether a judgment or
order is final or interlocutory?
A: The test for the determination of whether a judgment or order
is final or interlocutory is this: Does it leave something to be
done in the trial court with respect to the merits of the case? If it
does, it is interlocutory, hence, you cannot appeal yet; if it does
not, it is final and therefore you can appeal. (Reyes vs. De Leon,
L-3720, June 24,
1952)
So you must know the meanings of the word ‘final’ in civil
procedure to avoid confusion. A good example is Section 20 of
Rule 3 where the word ‘final’ was first mentioned:
Rule 3, Sec. 20. Action on contractual money
claims. - When the action is for recovery of
money arising from contract, express or
implied, and the defendant dies before
entry of final judgment in the court in
which the action was pending at the time
of such death, it shall not be dismissed but
 shall instead be allowed to continue until
entry of final judgment. A favorable
judgment obtained by the plaintiff therein
shall be enforced in the manner especially
provided in these Rules for prosecuting
claims against the estate of a deceased
person. (21a)
The word final here in Section 20 refers to the second meaning
that the judgment is final in the sense that it is not merely
interlocutory
BAR QUESTION: Plaintiff vs. Defendant. Defendant files a
motion to dismiss under Rule 16. The court granted the
motion and consequently ordered the dismissal of the
complaint of the plaintiff. Can the plaintiff appeal from the
order dismissing his complaint?
A: We will apply the test: Is there anything more for the court to
do after issuing the order of dismissal? Wala na! [Awanen!] Ano
pa ba ang gagawin eh na-dismiss na nga eh! Therefore, the
order of dismissal is a final order – it has completely disposed of
the case – hence, the plaintiff can appeal.
PROBLEM: Let’s modify the problem: Plaintiff vs.
Defendant. Defendant files a motion to dismiss under Rule
16. The court denied the motion to dismiss. Can the
defendant appeal from the order of the court denying his
motion to dismiss?
A: Again, we will apply the test: Is there anything more for the
court to do after denying the motion to dismiss of the defendant?
Yes because after the court denies such motion, the defendant
will now file his answer, then there will be pre-trial, trial,
judgment. Meaning, after denying the motion to dismiss, may
trabaho pa ako. Therefore, the order denying the motion to
dismiss is interlocutory, hence the defendant cannot appeal.
Q: So how do you appeal from an interlocutory order?
A: The procedure if there is an order which is against you but it
is not appealable, you have to wait. The case is to be tried and
then you have to wait for the final judgment to be rendered and
if you are dissatisfied with the judgment, that is the time you
appeal from the said judgment together with the interlocutory
orders issued in the course of the proceeding. (Mapua vs.
Suburban Theaters, Inc., 81 Phil. 311) So there should only be
one appeal form that case. That’s why, as a general rule, the law
on Civil Procedure prohibits more that one appeal in one civil
action.
The reasons why interlocutory orders are not appealable are to
avoid multiple appeals in one civil case since the order is
interlocutory and the court still continues to try the case in the
course of the proceeding, the court will realize its error and the
court may change its order so it will be given an opportunity to
corrects its own mistake. (Manila Elec. Co. vs. Artiaga, 50 Phil.
147)
Take note of the new rule saying that a judgment or order is
final if it disposes of the case or of a PARTICULAR MATTER. So,
it is not necessarily the whole case.
In the case of DAY vs. RTC (191 SCRA 640), a case filed by A
against B, X filed a motion to intervene and it was denied. Can
X appeal the denial? Now, it would seem that the order is
interlocutory because the court, after denying the motion to
intervene, still has something to do since the case between A
and B will continue. But according to the SC, YES, X can appeal
because the order denying the motion to intervene is final.
But is it not true that the court has something to do after
denying such motion? Yes but what the SC is trying saying is
that, as far as X’s right is concerned, the court has nothing to
do anymore. Marami pa akong trabaho dito (case between A
and B), pero kay X wala na. That is why the order denying the
motion to intervene is a final order and is appealable. Kaya nga
the test that there is nothing more for the court to do is very
confusing. In other words, you divide the case into parts.
DAY vs. RTC OF ZAMBOANGA CITY – 191 SCRA 640
HELD: “An order which decides an issue or issues in a
complaint is final and appealable, although the other issue or
issues have not been resolved, if the latter issues are distinct
and separate from the others.”
REPUBLIC vs. TACLOBAN CITY ICE PLANT – 258 SCRA 145
[1996]
HELD: “A court order is final in character if it puts an end to the
particular matter resolved or settles definitely the matter therein
disposed of, such that no further questions can come before the
court except the execution of the order. Such an order or
judgment may validly refer to the entire controversy or to some
definite and separate branch thereof.”
So the opening paragraph of Section 1 is in accordance with the
DAY and TACLOBAN cases. In other words, either the whole
case is disposed of or a particular matter therein has been
disposed of.
Q: If I cannot appeal because Section 1 of Rule 41 prohibits an
appeal, is there a way of hastening the issue before the
appellate court in order to avoid the waste of time and effort and
money of entering into a trial which is null and void because of
lack of jurisdiction?
A: The answer is the last paragraph of Section 1:
In all the above instances where the judgment or
final order is not appealable, the aggrieved party
may file an appropriate special civil action under
Rule 65. (n)
So if appeal is not available, the correct remedy is an
appropriate special civil action under Rule 65. There are three
civil actions there: Certiorari, Prohibition, Mandamus.
The present Rule 41 tells us exactly what orders cannot be
appealed:
(a) An order denying a motion for new trial or
reconsideration;
So when a motion for new trial or reconsideration is denied,
there is no appeal from that order. Your remedy is you appeal
from the judgment, not from the order denying your motion for
new trial or reconsideration. That is found on Rule 37, Section
9:
Section 9. Remedy against order denying a
motion for new trial or reconsideration.- An
order denying a motion for new trial or
reconsideration is not appealable, the
remedy being an appeal from the judgment
or final order.
So the correct remedy is in Rule 37 – you appeal from the
judgment, not from the order denying the motion for new trial
or reconsideration.

(b) An order denying a petition for relief or any
similar motion seeking relief from
judgment;
Paragraph [b] has changed some decided cases in the past.
Before, an order granting a petition for relief is interlocutory but
an order denying a petition for relief is final. NOW, wala na yan!
Whether it is an order granting or denying a petition for relief,
you cannot appeal.
So what is remedy for such order? Go with special civil action
under Rule 65 as provided in the last paragraph of Section 1.
Give an example of an order denying a motion other than a
petition for relief: motion for new trial. So it is not appealable.
Suppose I am declared in default, can I appeal from a DEFAULT
JUDGMENT ? The 1964 rules says, yes. You notice that such
provision is lost. There is no more direct provision on that. But
still, it is appealable. The provision in the old rules is not
necessary. There is nothing in paragraphs [a] to [h] prohibiting
an appeal from a default judgment. So it falls under the general
rule.
Q: How about the order to LIFT the order of default? Suppose
you file a motion to set aside the judgment of default and
motion is denied, can you appeal?
A: NO, because the law says, an order denying any similar
motion seeking relief from judgment cannot be appealed. As a
matter of fact, the 1995 case of MANILA ELECTRIC COMPANY
vs. CAMPANA FOOD PRODUCTS (246 SCRA 77), there is no
such remedy as a motion to set aside an order of default but
there is no provision in the rules to set aside a judgment of
default. The correct remedy is to appeal from the judgment of
default not to set aside. And that is clear. The default judgment
is appealable.
(d) An order disallowing or dismissing an appeal;
So, if an appeal is dismissed, you cannot appeal from the order
dismissing it. What is the remedy? The 1964 rules provides for
the remedy of mandamus. That is a direct provision because if
the appeal is on time , the duty of the court to grant due course
to the appeal is ministerial. There is no more such provision in
the present rules because it is already provided in the last
paragraph.
Another possible remedy where an appeal is allowed aside from
the mandamus is if I lost my right to appeal because of fraud,
mistake accident and inexcusable negligence, the other possible
remedy is a petition for relief from judgment denying my appeal
and that is found in Rule 38, Section 2:
Rule 38, Sec. 2. Petition for relief from denial
of appeal. When a judgment or final order
is rendered by any court in a case, and a
party thereto, by fraud, accident, mistake,
or excusable negligence, has been
prevented from taking an appeal, he may
file a petition in such court and in the
same case praying that the appeal be given
due course. (1a)
So, aside from the remedy under Rule 65, the other possible
remedy is a petition for relief from the order denying the appeal.
(e) An order denying a motion to set aside
a judgment by consent, confession or
compromise on the ground of fraud,
mistake or duress, or any other ground
vitiating
consent;
PROBLEM: So there is a judgement by consent (cognovit
judgment) and the motion to set aside such judgment is denied.
The order of denial is not appealable. So again, there is
judgement by confession or compromise and then you file a
motion to set aside the judgement of compromise on the ground
of fraud, mistake or duress or any other ground. Motion denied!
Q: Can you appeal?
A: NO. (paragraph [e])
Q: So what is my remedy?
A: You file a separate case for annulment for such judgment
(Rule
47). In the case of
DOMINGO vs. CA – 255 SCRA 189 [1996]
HELD: The correct remedy is for the party to file an action for
annulment of judgment before the Court of Appeals pursuant to
Section 9, par. 2, of the Judiciary Law.
“A compromise may however be disturbed and set aside for vices
of consent or forgery. Hence, where an aggrieved party alleges
mistake, fraud, violence, intimidation, undue influence, or
falsity in the execution of the compromise embodied in a
judgment, an action to annul it should be brought before the
Court of Appeals, in accordance with Section 9(2) of Batas
Pambansa Bilang 129, which gives that court (CA) exclusive
original jurisdiction over actions for annulment of judgments of
regional trial courts.”
(f) An order of execution;
So you cannot appeal from an order of execution because if we
will allow the losing party to appeal from an order of execution,
then there will be no end to litigation. Kaya nga execution, eh –
it means tapos na ang kaso. That case is finished, decided,
final.
But suppose the order of execution contains portions which are
not found in the judgment, meaning, the order of execution is
changing the judgment which should not be done, then
obviously, the correct remedy is certiorari under Rule 65
because of grave abuse of discretion.
(g)A judgment or final order for or against
one or more of several parties or in
separate claims, counterclaims, cross-
claims and thirdparty complaints, while
the main case is pending, unless the
court allows an appeal therefrom;
The best example of a judgment of final order where there are
separate claims is found in Rule 36. There could be more than
one judgment in one civil case and there can be more than one
decision – judgment on the main action, on the counterclaim,
etc. (c.f.
Sections 4 and 5, Rule 36)
Q: Everytime a judgment is issued, can you appeal already form
the first judgment when there will be a second judgment in that
civil action? Can you appeal from all these separate judgment?
A: No, unless the court allows an appeal therefrom. Generally,
you have to wait for all the judgments to be rendered before you
can appeal because, normally, there can be no appeal from
every
judgment rendered. A good example of this is in the case of
PROVINCE OF PANGASINAN vs. CA – 220 SCRA 726
FACTS: This was a partial summary judgment under Rule 35. Is
it appealable? One party claims that a partial summary
judgment is appealable because of Rule 36, where the court
allows an appeal therefrom. But according to the Supreme
Court:
HELD: A partial summary judgment is not covered by Rule 36.
It is governed by Rule 35 and there is no appeal because it is
merely interlocutory.
Rule 35, Sec. 4. Case not fully adjudicated
on motion. If on motion under this Rule,
judgment is not rendered upon the whole
case or for all the reliefs sought and a trial
is necessary, the court at the hearing of
the motion, by examining the pleadings
and the evidence before it and by
interrogating counsel shall ascertain what
material facts exist without substantial
controversy and what are actually and in
good faith controverted. It shall thereupon
make an order specifying the facts that
appear without substantial controversy,
including the extent to which the amount
of damages or other relief is not in
controversy, and directing such further
proceedings in the action as are just. The
facts so specified shall be deemed
established, and the trial shall be
conducted on the controverted facts
accordingly.
Q: When can there be a partial summary judgment?
A: When some portions of a claim are substantially controverted
and the rest are not substantially controverted. So the court is
authorized to render a partial summary judgment on the claim
where there is no genuine issue we continue trying the case
with respect to the claim where there is a genuine issue. So
there will be two judgments. A summary judgment for one claim
and an ordinary judgment for the other claim. So nauna yung
partial summary judgment.
Q: Can you appeal from there immediately?
A: NO, you have to wait for the other judgment to come out. You
cannot appeal from that partial summary judgment while the
main case is pending, unless the court allows appeal therefrom.
(h) An order dismissing an action without
prejudice.
If an action is dismissed without prejudice, it cannot be
appealed because, as it is without prejudice, you can re-file the
case. But supposed the dismissal without prejudice is arbitrary,
and I don’t want to re-file because it is too costly and I really
want to question the court dismissing my case without
prejudice, I want to challenge the order. Now, because appeal is
not appealable, your remedy is Rule 65 on certiorari.
Q: Give examples of dismissal of cases without prejudice.
A: Rule 16, Section 5 (c.f. Rule 16, Section 1 [f], [h], [i]):
Rule 16, Sec. 5. Effect of dismissal.
Subject to the right of appeal, an order
granting a motion to dismiss based on
paragraphs (f), (h) and (i) of section 1
hereof shall bar the refiling of the same
action or claim.
Rule 16, Section 1. Grounds. Within the
time for but before filing the answer to the
complaint or pleading asserting a claim, a
motion to dismiss may be made on any of
the following grounds:
(f) That the cause of action is barred by a prior
judgment or by the statute of limitations;
(h) That the claim or demand set forth in the
plaintiff's pleading has been paid, waived,
abandoned, or otherwise extinguished;
(i) That the claim on which the action is founded is
unenforceable under the
provisions of the statute of frauds;
Another new provision is Section 2. But, actually, the principles
are not new. How do you appeal from the RTC to the CA? (or to
a higher court) Take note that Section 2 tells us that there are 3
possible ways:
1) Ordinary Appeal (in cases decided by the RTC pursuant
to its original jurisdiction)
2) Petition For Review (in cases decided by the RTC
pursuant to its appellate jurisdiction)
3) Appeal By Certiorari (appeal from RTC direct to the SC
on pure questions of law)
Sec. 2. Modes of appeal.
(a) Ordinary appeal.- The appeal to the Court of
Appeals in cases decided by the Regional
Trial Court in the exercise of its original
jurisdiction shall be taken by filing a
notice of appeal with the court which
rendered the judgment or final order
appealed from and serving a copy thereof
upon the adverse party. No record on
appeal shall be required except in special
proceedings and other cases of multiple or
separate appeals where the law or these
Rules so require. In such cases, the record
on appeal shall be filed and served in like
manner.
Ordinary Appeal is the mode of appeal from RTC to CA in cases
decided by the RTC pursuant to its original jurisdiction.
Just like in Rule 40, you file a notice of appeal with the RTC
furnishing the adverse/losing party. No record on appeal shall
be required except in special proceedings and other cases of
multiple or separate appeals where the law or these Rules so
require.
(b) Petition for review.- The appeal to the Court
of Appeals in cases decided by the Regional
Trial Court in the exercise of its appellate
jurisdiction shall be by petition for review
in accordance with Rule 42.
Actually, this was already touched in Judiciary Law. How do
you appeal to the CA from the RTC in cases decided by the RTC
pursuant to its appellate jurisdiction? – not by ordinary appeal
but by petition for review.

ORDINARY APPEAL (par. PETITION FOR REVIEW
(par.
A)
B)
The case was decided by The case was decided by
the RTC pursuant to its the RTC pursuant to its
original jurisdiction. The appellate jurisdiction
case was originally filed in (governed by Rule 42)
the RTC.
EXAMPLE: You filed an action for recovery of money amounting
to P1 million. Obviously the jurisdiction is in the RTC. Now,
natalo ka and you want to go to the CA. What is your mode of
appeal? Ordinary Appeal because the case was decided by the
RTC pursuant to its original jurisdiction.
EXAMPLE: In paragraph B, the case is recovery of sum of
money amounting to P50,000. Saan i-file yan? MTC man yan
ba. Now, you lose, where will you appeal and what is the mode
of appeal? RTC by Ordinary appeal. Suppose, talo ka pa rin sa
RTC and you want to go to CA. This time, the mode of appeal is
not by ordinary appeal but by petition for review because the
case now being appealed has been decided by the RTC pursuant
to its appellate jurisdiction.
(c) Appeal by certiorari - In all cases where only
questions of law are raised or involved, the
appeal shall be to the Supreme Court by
petition for review on certiorari in
accordance with Rule 45.
This goes back to the jurisdiction of the SC. The SC has
exclusive, appellate jurisdiction in certain cases —
constitutionality of a law, treaty is in issue, jurisdiction of the
court is in issue, and when only questions of law are being
raised.
So the case is in the RTC and you lost. You would like to appeal
on pure question of law. Now, do not go to the CA for it has no
jurisdiction. You by-pass CA and go directly to the SC on appeal
by certiorari in accordance with Rule 45.
NOTE: Only in exercise of its original jurisdiction. 
What is the period to appeal? Section 3:
Sec. 3. Period of ordinary appeal. The appeal
shall be taken within fifteen (15) days
from notice of the judgment or final order
appealed from. Where a record on appeal
is required, the appellant shall file a
notice of appeal and a record on appeal
within thirty (30) days from notice of the
judgment or final order. However, an
appeal in habeas corpus cases shall be
taken within forty-eight (48) hours from
notice of the judgment or final order
appealed from.
The period of appeal shall be interrupted
by a timely motion for new trial or
reconsideration. No motion for extension
of time to file a motion for new trial or
reconsideration shall be allowed.
The period to appeal is 15 days. And when a record on appeal is
required, the period to appeal is doubled – 30 days.
Section 3 is already amended. It now specifically provides the
period to appeal in cases of habeas corpus, which is 48 hours.
This is because the SC made an error in one of the latest cases
involving Rufus Rodriguez as Immigration Commissioner, where
the SC ruled that the period to appeal in habeas corpus cases is
15 days since the 48-hour period disappeared in the 1997
Rules. So many got confused now.
So when I had a talk with Justice Panganiban last year during
the celebration of the 100 years of SC here in Davao, I opened
this issue to him. Sabi ko, “Mali man yung ruling nyo ba.
Under the judiciary law, it is 48-hours!” Two months after the
conversation,
Section 3 was amended. [ehem!]
Alright, the period to appeal shall be interrupted by timely
motion for new trial or motion for new consideration provided
that the motion for new trial is not a pro forma motion (Rule 37,
Section 2).
LABITAD vs. CA – 246 SCRA 434 [1995]
FACTS: You receive a judgment on January 31. You filed a
motion for reconsideration on February 10. So, interrupted and
then on February 20, you receive the order denying the motion
for reconsideration. When is the last day to appeal?
HELD: The last day is February 26. The filing of a motion for
new trial or reconsideration is not counted in the 15-day period.
Upon the filing in February 10, it is already interrupted. So, you
did not consume 10 days. You consumed only 9 days.
“The period to appeal is suspended if a motion for
reconsideration or one for a new trial is filed, which, if denied,
continues to run upon receipt of the order denying the same as
if no interruption has occurred. The time during which a motion
for reconsideration or one for new trial has been pending shall
be counted from the date the motion is duly filed to the date
when the movant is duly
notified of the denial thereof.”
“The period during which the motion is pending with the trial
court includes the day the same is filed because the motion
shall have been already placed under the court's consideration
during the remaining hours of the day. The very date the motion
for reconsideration has been filed should be excluded from the
appeal period.”
So how do you reconcile this pronouncement with the rule that
the first day is excluded and the last day is included? The
answer is found in Rule 22, Section 2:
Rule 22, Sec. 2. Effect of interruption.- Should an
act be done which effectively interrupts the
running of the period, the allowable period
after such interruption shall start to run on the
day after notice of the cessation of the cause
thereof.
The day of the act that caused the interruption
shall be excluded in the computation of the
period. (n)
RUBIO vs. MTCC OF CAGAYAN DE ORO CITY – 252 SCRA
172
FACTS: The period to file a motion for new trial or
reconsideration is within the period to appeal which is 15 days,
kaya walang extension. Now this is what happened. The court
issued an interlocutory order. After two months, one of the
parties filed a motion for reconsideration and, of course, the
other party said, no more, you should file the motion within 15
days. You cannot file beyond the 15-day period. Is that correct?
HELD: NO. That is wrong because an interlocutory order cannot
be appealed hence, the 15-day period does not apply. You can
file your motion for reconsideration anytime for as long as the
court still has jurisdiction over the case.
The 15-day period only applies when the order is final. But
when the order is interlocutory, you can file it anytime because
there is no definite period for the court to change it. For as long
as the court has jurisdiction over the case, it has the power to
change that wrong order.
“The period subject to interruption by a motion for
reconsideration is the period to appeal. An interlocutory order is
not appealable if
there is accordingly no period to suspend or interrupt.”
Sec. 4. Appellate court docket and other
lawful fees. Within the period for taking an
appeal, the appellant shall pay to the clerk
of the court which rendered the judgment
or final order appealed from, the full
amount of the appellate court docket and
other lawful fees. Proof of payment of said
fees shall be transmitted to the appellate
court together with the original record or
the record on
appeal. (n)
Under the law, within the period for taking an appeal, the
appellant shall only pay to the clerk of court of the RTC which
rendered the judgment or final order the full amount of the
appellate court docket fee and all other lawful fees and the proof
of payment shall be transmitted to the CA together with the
original record on appeal.
Q: How does this amend the Old law ?
A: Under the OLD Law, when you appeal from the RTC to the
CA , you just file a notice of appeal. You do not pay anything,
you do not pay the appellate docket fee. So the records will be
transmitted upon order of the clerk of court.
Pagdating sa CA, later on, the clerk of court there will
communicate to the appellant na the records are there already,
magbayad ka ng docket fee within so many days. So, mamaya
mo na bayaran, hintayin mo munang mapunta doon at hintayin
mo ang notisya.
NOW, you do not wait. Pag - file mo ng notice of appeal, you
PAY IMMEDIATELY. When you appeal, bayaran mo na ang CA
docket fee sa RTC clerk and then pag-transmit, sabay na! That
is the change.
If we will notice, the counterpart is Section 5 Rule 40 – yung
appeal from the MTC to the RTC:
RULE 40, Section 5. Appellate court and other
lawful fees. - Within the period for taking an
appeal, the appellant shall pay to the clerk of
the court which rendered the judgment or final
order appealed from the full amount of the
appellate court docket and other lawful fees.
Proof of payment thereof shall be transmitted
to the appellate court together with the
original record
or the record on appeal, as the case may be. (n)
Q: Suppose the person appealing from the MTC to the RTC
failed to pay the appeal fee under Rule 40, can the appeal be
dismissed ?
A: No, because it is not one of the requisites. That was the
ruling in SANTOS vs. CA. That can be collected from you later
but that is not a requisite. The appeal cannot be dismissed.
We will ask the same question under Section 4 Rule 41. BUT
this time, you are appealing from the RTC to the CA and this
contains an identical provision that when you are appealing
from the RTC to the CA, you already pay there with the clerk of
court of the RTC the docket fee. Bayaran mo na, siya na ang
bahalang mag-forward.
Here’s the problem:
Q: You failed to pay the docket fee within 15 days. So, when the
case was transmitted to the CA, hindi kasali yung fee no. Now,
can your appeal be dismissed on the ground of failure to pay the
docket fee or not in accordance with the ruling in SANTOS (by
analogy, although in this case, the appeal is from the MTC to
the RTC. Pero the same, hindi ka rin magbayad ng docket fee.)
Is the ruling in SANTOS also applicable to Rule 41 ?
A: NO, the ruling in SANTOS is not applicable. Your appeal will
be dismissed.
Q: What provision of the Rules authorizes such dismissal? Is
there any direct provision of the Rules of Court which
authorizes the dismissal of the appeal by non-payment of the
appeal docket fee?
A: YES. Rule 50 Section 1 [c];
RULE 50, Section 1 – An appeal may be
dismissed by the Court of Appeals, on its
own motion or on that of the appellee. on
the following grounds:
x x x x (c) Failure of the
appellant to pay the docket and other
lawful fees as provided in Section 4
of Rule 41 ;
xxxx
I believe that it is dismissible because of that. So, to my mind,
the SANTOS vs. CA ruling which governs Rule 40 and which for
me is valid, is NOT APPLICABLE to Rule 41 because there is a
direct provision in Rule 50 that an appeal can be dismissed for
non-payment of appeal docket fee. That is the difference
between these two situations.
NOTICE OF APPEAL
Now, let us go back to Section 5 of Rule 41;
Sec. 5. Notice of appeal. The notice of appeal
shall indicate the parties to the appeal, specify
the judgment or final order or part thereof
appealed from, specify the court to which the
appeal is being taken, and state the material
dates showing the timeliness of
the appeal. (4a)
Ano ba ang nakalagay sa notice of appeal? It’s very clear there
that you indicate the parties to the appeal, specify the judgment
and state the material date showing the timeliness of the
appeal.
Do you know how to do it? It’s very simple. The defendant
merely says; Defendant hereby serves notice that he is appealing
to the CA on questions of fact or on questions of fact and law the
judgment of the Honorable Court (RTC) dated December 20,
1997, copy of which was received by me on January 5, 1998.” So
it is simple that only 15 days is required to file the notice. When
the law says the period to file an appeal is non-extendible, that
is fair. I do not need 15 days to prepare the notice of appeal.
You can do it only in two minutes.
[sobra pa sa quicky!!]
So you must state the date when you received because the
computation of the 15-day period is from the receipt of the
judgment and NOT from the date of the judgment. This is the
socalled the MATERAL DATA RULE – material dates showing
timeliness of appeal. The date received and the date of decision
are not the same. Both dates must be included in the notice of
appeal.
Now, kung sabihin mo na I am appealing from the judgment of
the court dated December 20, 1997, and hindi mo sinabi kung
kailan mo natanggap, the presumption is you also received the
copy of the judgment on December 20, 1997. And then you are
appealing today, it will be dismissed because you did not state
the material dates.
And of course, there is one SC decision which said that you do
not only specify the final judgment or order, but you also specify
as much as possible the interlocutory orders from where you
are appealing because interlocutory orders can only be appealed
at this time. So, isabay mo na rin, i-one time ba!
In the case of
HEIRS OF MAXIMO RIGOSO vs. CA – 211 SCRA 348
FACTS: Plaintiff filed an action against defendant for partition of
property. While the action was pending, defendant died.
Partition is an action which survives. Defendant’s lawyer failed
to inform the court about plaintiff’s death (it is the lawyer’s duty
which he did not do). So with that, there was no proper
substitution. Later, judgment was rendered against the
deceased defendant. But after the decision came out, the lawyer
of the defendant filed a notice of appeal in accordance with Rule
41.
ISSUE #1: Was the appeal properly made?
HELD: NO. Upon the death of the defendant, the lawyer’s
authority to represent him already expired. There was an
automatic expiration of the lawyer-client relationship. The
notice of appeal which the lawyer filed in behalf of the deceased
was an unauthorized pleading, therefore not valid.
ISSUE #2: Is the judgment binding to the defendant’s heirs
(remember, they were not substituted)?
HELD: YES. The validity of the judgment was not affected by the
defendant’s demise for the action survived (partition, eh). The
decision is binding and enforceable against the successor-
ininterest of the deceased litigant by title subsequent to the
commencement of the action pursuant to Section 47 [b] of Rule
39—Rule on Res Judicata.
Now, in our outline in appeal, the general rule is when you
appeal, you only file a notice of appeal and you pay the docket.
The important requirement there is notice of appeal but, we said
in some cases, aside from notice of appeal, there is a second
requirement which is the RECORD ON APPEAL.
This time, the period to appeal is not only 15 but 30 days and a
record on appeal is only required in special proceedings or in
civil cases where multiple appeals are allowed. Never mind
special proceedings, saka na ‘yun. It sounds strange because
what we’ve studied so far, multiple appeals are not allowed in
civil cases, there should only be one appeal. Kaya nga
interlocutory orders are not appealable, precisely to avoid order
on appeal in a civil case. We will explain this later.
RECORD ON APPEAL
Sec. 6. Record on appeal; form and contents
thereof. The full names of all the parties to
the proceedings shall be stated in the
caption of the record on appeal and it shall
include the judgment or final order from
which the appeal is taken and, in
chronological order, copies of only such
pleadings, petitions, motions and all
interlocutory orders as are related to the
appealed judgment or final order for the
proper understanding of the issue
involved, together with such data as will
show that the appeal was perfected on
time. If an issue of fact is to be raised on
appeal, the record on appeal shall include
by reference all the evidence, testimonial
and documentary, taken upon the issue
involved. The reference shall specify the
documentary evidence by the exhibit
numbers or letters by which it was
identified when admitted or offered at the
hearing, and the testimonial evidence by
the names of the corresponding witnesses.
If the whole testimonial and documentary
evidence in the case is to be included, a
statement to that effect will be sufficient
without mentioning the names of the
witnesses or the numbers or letters of
exhibits. Every record on appeal exceeding
twenty (20) pages must contain a subject
index. (6a)
A record on appeal is simply a reproduction of all the pleadings
filed by the parties, all the motions filed by the parties, all the
orders issued by the court and the final judgment rendered by
the court arranged in chronological order.
For EXAMPLE: Juan de la Cruz versus Pedro Santos. Record on
appeal. Normally, it starts with this phrase—
“Be it remembered the following proceedings took place
in the court below:
Par. 1. On January 5, 1998, plaintiff filed a
complaint against defendant as follows: -- (so
kopyahin mo ‘yung complaint. Practically it is
mechanical work, eh.)
Par. 2. On January 25, 1998, defendant filed an
answer – (kopyahin mo ang answer)
Par. 3. On March 5, 1998, the court rendered judgment
– (kopyahin mo na naman.)”
How long? Gaano kakapal yan? Depende. For example, the case
lasted for more than two years. So practically, the record on
appeal may amount to hundreds of pages. That is why the
period to appeal is increased from 15 to 30 if the law requires a
record on appeal because of the possibility that you may not be
able to complete everything within 15 days. Sometimes the 30-
day period can be extended.
Q: Do you have to include there every motion, every order
of the case?
A: No, the law says you reproduce in chronological order copies of
only such pleadings, motions, petitions, and all interlocutory
orders as are related to the appealed judgment or final order for
the proper understanding of the issues involved. This is to allow
the appellate court to review the order appealed from.
But there are some motions na hindi na kailangan. For
example, the case will be set for trial next week. Sabi ng
defendant, “Motion to postpone, I am not ready because I am
suffering from diarrhea.” So the trial was postponed. Kailangan
pa bang ilagay ang motion na yan? That is not necessary to
understand the issue. Piliin mo lang ang importante.
Now, bakit kailangan ‘yang record on appeal? Bakit sa ordinary
appeal, hindi man kailangan? Because in Ordinary Civil
Actions, when the appeal is perfected, the clerk of court of the
RTC transmits the entire record to the CA. So andoon na lahat
yan. But in special proceedings or in civil cases where multiple
appeals are allowed, when an order or judgment is rendered, the
case continues pa. So, the records are not yet elevated. So, how
can the CA understand what happened without the records?
That is called the record on appeal.
Q: Give an example of a civil action where multiple appeals
are allowed.
A: Section 4 of Rule 36, where several judgments will be
rendered in one case:
RULE 36, Sec. 4. Several judgments - In an
action against several defendants, the
court may, when several judgment is
proper, render judgment against one or
more of them, leaving the action to
proceed against
the others. (4)
And to be more specific, that rule was applied by the SC in the
case of
MUNICIPALITY OF BIÑAN vs. GARCIA – 180 SCRA 576
FACTS: Municipality of Binan filed expropriation cases against
several landowners because it would like to expropriate their
land for public use. All of them were named as co-defendants in
one complaint. Landowner A filed a motion for separate trial
(Rule 31). The court granted it. The court rendered a decision
expropriating the land of A. Nauna siya. As for the other
landowners, the case continued.
ISSUE #1: Can A appeal already from the decision rendered
against him or must he wait for the decision to be rendered
against the other landowners?
HELD: YES, A can now appeal because the order was already
final against A. There is something more for the court to do but
only with respect to the other defendants. But as far as A is
concerned, there is nothing more for the court to do.
So when the judgment is already rendered against the other
landowners, they can now also appeal. So there could be two or
more final judgments and two or more appeals.
ISSUE #2: Suppose the case was tried against all of them (sabay
ba) and there was one decision against them—so sabay-sabay
sila magappeal. Is record on appeal required?
HELD: NO, only notice of appeal because there is only one
decision.
Q: Why is it that in ordinary civil cases, normally a record
on appeal is not required?
A: Ordinarily, when the case is over and you say that you are
appealing, the entire record of the case will be elevated to the
CA. But in the case of BIÑAN, there is judgment against
landowner A and he wants to appeal, the record cannot be
brought to the CA because the case will still be tried with
respect to landowners B, C and D. So for the CA to know what
happened, a record on appeal is needed.
ROMAN CATHOLIC ARCHBISHOP OF MANILA vs. CA – 258
SCRA
186 [1996]
HELD: Multiple appeals are allowed in:
1) Special proceedings;
2) Actions for recovery of property with accounting;
3) Actions for partition of property with
accounting;
4) Special civil actions of eminent domain
(expropriation);
5) Special civil actions for foreclosure of mortgage.
“The rationale behind allowing more than one
appeal in the same case is to enable the rest of the
case to proceed in the event that a separate and
distinct case is resolved by the court and held to
be
final.”
The enumeration cited in ROMAN CATHOLIC CASE is taken
from the ruling of the SC in the cases of MIRANDA vs. CA (71
SCRA 295) and DE GUZMAN vs. CA (74 SCRA 222). In these
cases, when you file only a notice of appeal without the record
on appeal, it will not suffice. So it will be dismissed.
Q: What if the party filed a record on appeal without a
notice of appeal? Should the appeal be dismissed?
A: NO, the appeal will not be dismissed because the filing of the
record on appeal is harder to comply with than the filing of a
notice of appeal. The filing of the record on appeal is more
expressive of
the desire of the party to appeal. (Peralta vs. Solon, 77 Phil. 610)
(The following discussions under Section 6 was taken from the
4th year review transcription) Now, let us try to tie this up with
what may be appealed and what may not be appealed, let’s go
back to section 1 [g] of Rule 41:
Section 1. Subject of appeal. - An appeal may be
taken from a judgment or final order that
completely disposes of the case, or of a
particular matter therein when declared by
these Rules to be appealable.
No appeal may be taken from:
x x x x x (g) A judgment or
final order for or against one or more of several
parties or in separate claims, counterclaims,
cross-claims and third-party
complaints, while the main case is pending,
unless the court allows an appeal therefrom. x
xxxx
Take note that as a GENERAL RULE: a judgment for or against
one or more of several parties or in separate claims,
counterclaims, cross-claims, etc., while the main case is pending,
cannot be appealed because that will result to multiple appeals,
unless the court allows an appeal therefrom, in which case,
multiple appeals would now be possible.
Q: Cite examples of civil actions where, by direct provision of the
Rules, the law mentions that the judgment is already final and
appealable despite the fact that the case still goes on with
respect to the other issues.
A: The case of MUNICIPALITY OF BIÑAN vs. GARCIA which is
now expressly provided for in Rule 67, Section 4, (on
Expropriation):
Sec. 2. Entry of plaintiff upon depositing
value with authorized government depositary
— Upon the filing of the complaint or at
any time thereafter and after due notice to
the defendant, the plaintiff shall have the
right to take or enter upon the possession
of the real property involved if he deposits
with the authorized government
depositary an amount equivalent to the
assessed value of the property for
purposes of taxation to be held by such
bank subject to the orders of the court.
Such deposit shall be in money, unless in
lieu thereof the court authorizes the
deposit of a certificate of deposit of a
government bank of the Republic of the
Philippines payable on demand to the
authorized government depositary. x x x x
xx
Did you notice that an Order of Expropriation MAY BE
APPEALED? When there is an order of expropriation - the court
says, “Alright, the property is declared expropriated.” Tapos na
ba ang case? NOT YET because there is still a Part 2 which the
determination of just compensation. So, technically, it does not
yet really dispose of the case BUT by express provision of the
law, the order is already appealable. That is an instance where
multiple appeals may arise in one civil case.
Another example is Rule 69 on Partition:
RULE 69, Sec. 2. Order for partition, and
partition by agreement thereunder. - If after
the trial the court finds that the plaintiff
has the right thereto, it shall order the
partition of the real estate among all
parties in interest. Thereupon the parties
may, if they are able to agree, make the
partition among themselves by proper
instruments of conveyance, and the court
shall confirm the partition so agreed upon
by all the parties, and such partition,
together with the order of the court
confirming the same, shall be recorded in
the registry of deeds of the place
in which the property is situated. (2a)
A final order decreeing partition and accounting
may be appealed by any party
aggrieved thereby. (n)
A final order decreeing partition is appealable. But the case will
go on because if the first order is that there is a co-ownership,
then there should be a partition. Ang sunod is how to partition.
As a matter of fact, the court may even hire commissioners as to
how to partition but in the meantime, the order to partition is
already appealable although it did not completely disposed of
the civil action.
Sec. 7. Approval of record on appeal. Upon
the filing of the record on appeal for
approval and if no objection is filed by the
appellee within five (5) days from receipt of
a copy thereof, the trial court may approve
it as presented or upon its own motion or
at the instance of the appellee, may direct
its amendment by the inclusion of any
omitted matters which are deemed
essential to the determination of the issue
of law or fact involved in the appeal. If the
trial court orders the amendment of the
record, the appellant, within the time
limited in the order, or such extension
thereof as may be granted, or if no time is
fixed by the order within ten (10) days
from receipt thereof, shall redraft the
record by including therein, in their proper
chronological sequence, such additional
matters as the court may have directed
him to incorporate, and shall thereupon
submit the redrafted record for approval,
upon notice to the appellee, in like
manner as the original draft. (7a)
- It boils down to the trial court – file notice of appeal
and pay docket fees. 
What you have to remember here is that in appeals, where a
record on appeal is required, the law requires an approval. The
record on appeal has to be approved by the court. In ordinary
cases where you only file a notice of appeal, approval is not
required. A record on appeal has to be approved because the
other party is given the right to object your record on appeal.
The possible grounds for objections are – necessary pleadings
were not produced like kulang-kulang ang record on appeal
[kulangkulang din siguro yung nag-file]; or, you did not
reproduce the pleading properly; to pester the other party and
just to block the approval, like i-reklamo kahit wrong spelling
lang. [peste talaga!]
Sec. 8. Joint record on appeal. Where both
parties are appellants, they may file a
joint record on appeal within the time
fixed by section 3 of this Rule, or that
fixed by the
court. (8a)
Q: Is it possible that both sides will appeal?
A: Yes, when both are not satisfied.
Suppose both plaintiff and defendant will want to appeal and a
record on appeal is required, it would be tedious. Para walang
gulo at para makatipid, the plaintiff and the defendant will file a
joint record on appeal, tapos hati tayo sa gastos.
WHEN APPEAL IS DEEMED PERFECTED
Let us now go to Section 9 of Rule 41 which is one of the most
important provisions – when is appeal deemed perfected. Now, if
you are asked this question: HOW DO YOU PERFECT AN
APPEAL? This question is not the same as WHEN IS THE
APPEAL DEEMED PERFECTED?
Q: How do you perfect an appeal?
A: By:
1) Filing a NOTICE OF APPEAL, generally within 15 days;
or by
2) Filing A NOTICE OF APPEAL and RECORD ON APPEAL
WITHIN 30 DAYS.
Those are the steps taken to perfect the BUT the appeal is NOT
YET PERFECTED. It is perfected according to Section 9, and it
is important to determine the exact date when the appeal is
considered as perfected because of the doctrine that from the
moment the appeal is perfected, the RTC automatically loses
jurisdiction of the case. And by fiction of law, the jurisdiction is
automatically transferred to the CA, although the records as
still with the RTC. Therefore it is important to determine the
exact date.
For example, in notice of appeal, is it perfected on the very day
that the appellant will file a notice of appeal that if he files it,
after two days perfected na?
All of these are answered by Section 9 and I noticed that Section
9 has improved on the language of the Interim Rules. Under the
Interim Rules, they are actually the same, the question when is
the appeal deemed perfected is also answered by the Interim
Rules but the language of the law there is more convoluted.
Now, it is more clearer:
Sec. 9. Perfection of appeal; effect thereof. A party’s
appeal by notice of appeal is deemed perfected
as to him upon the filing of the notice of appeal
in due time.
A party’s appeal by record on appeal is
deemed perfected as to him with respect
to the subject matter thereof upon the
approval of the record on appeal filed in
due time.
In appeals by notice of appeal, the court
loses jurisdiction over the case upon the
perfection of the appeals filed in due time
and the expiration of the time to appeal of
the other parties.
In appeals by record on appeal, the court
loses jurisdiction only over the subject
matter thereof upon the approval of the
records on appeal filed in due time and
the expiration of the time to appeal of the
other parties.
In either case, prior to the transmittal of
the original record or the record on appeal,
the court may issue orders for the
protection and preservation of the rights of
the parties which do not involve any
matter litigated by the appeal, approve
compromises, permit appeals of indigent
litigants, order execution pending appeal
in accordance with section 2 of Rule 39,
and allow withdrawal of the appeal. (9a)
WHEN ONLY NOTICE OF APPEAL IS REQUIRED
Q: When only a notice of appeal is required, when is an
appeal deemed perfected?
A: First and third paragraph: “A party’s appeal by record on
appeal is deemed perfected as to him with respect to the subject
matter thereof upon the approval of the record on appeal filed in
due time. x x x In appeals by notice of appeal, the court loses
jurisdiction over the case upon the perfection of the appeals filed
in due time and the expiration of the time to appeal of the other
parties.”
This was taken in the case of DELGADO vs IAC (147 SCRA
258). Let’s compose a problem based on that case:
PROBLEM: I received a copy of the decision on March 31 so I
have 15 days to appeal i.e. up to April 15. My opponent received
the decision on April 10. So ang opponent ko naman ang bilang
niya is from April 10 to April 25. Iba ang 15 days niya, iba din
sa akin.
Q: Since I received the decision on March 31, I filed my notice of
appeal on April 5, is the appeal perfected?
A: Yes, as far as I am concerned.
Q: How about the other side?
A: Not yet, because as of April 5, he has not yet received a copy
of the decision. He will start computing from April 10. So as of
now, it is already perfected only by 50%.
Q: Suppose by April 25 which is the last day of 15-day period of
my opponent, he did not file anything. Nag-expire na. What will
happen now?
A: Then as of April 25, the appeal is now fully perfected (100%)
because as far as I am concerned, I have already filed a notice of
appeal. As far as he is concerned, his 15-day period to appeal
has lapsed. Therefore, the case is now ripe for elevation. This is
what the third paragraph means, “In appeals by notice of
appeal, the court loses jurisdiction over the case upon the
perfection of the appeals filed in due time and the expiration of
the time to appeal of the other parties.” You have to look at it
from the viewpoint of both parties.
That is the time for the clerk of court to elevate the records. It is
from that moment that the court has lost 100% jurisdiction over
the case from the viewpoint of both parties.
Up to now, despite this provision, I’m still receiving these kind of
orders from the courts. Nakalagay doon: “A notice of appeal
having been filed by the defendant on this date, the appeal is
now deemed perfected and let the record now be elevated to the
CA.” My Golly! This is WROOOONG! The appeal is perfected
only as far as the defendant is concerned why decree it as
perfected? Tiningnan mo lang yung isang side eh. Paano kung
‘yung plaintiff mag-file pa ng motion for execution pending
appeal?
So, do not elevate the record until the 15-day period has expired
on BOTH SIDES. This is the correct interpretation of the Rules.
We will now go to some interesting cases:
UNIVERSAL FAR EAST CORP. vs. CA – 131 SCRA 642
FACTS: On March 31, both Epi and Hilde received a copy of the
decision. Epi won, Hilde lost. From the viewpoint of both, April
15 is the last day to appeal. On April 5, Hilde filed a notice of
appeal. So the appeal is perfected from the viewpoint of Hilde.
On April 13, Epi file a motion to execute pending appeal. Was
the motion filed on time? Yes, because Epi can file the motion
between March 31 and April 15. On April 25, the court granted
Epi’s motion.
This is now the argument of Hilde: “[My Golly!] The order of
execution by Epi is void because the court has already lost
jurisdiction over the case as of April 25 because From the
viewpoint of both parties, the last day is April 15, after April 15
the period within which Epi can file a motion to execute has
expired.” From the viewpoint of Hilde, he already filed a notice of
appeal on April 5. So, from the viewpoint of both, the court
already lost jurisdiction.
According to Epi: “But I filed my motion on April 13, the court has
not yet lost jurisdiction.” “Ah Yes,” sabi naman ni Hilde, “but the
court acted on your motion on April 25, which is after April 15.”
HELD: Epi is correct. The important point is the date of filing.
Thus, even if the court acts beyond the 15-day period, the order
is still valid. The important thing is the motion to execute
pending appeal was filed within the 15-day period.
“It may be argued that the trial court should dispose of the
motion for execution within the reglementary fifteen-day period.
Such a rule would be difficult, if not impossible, to follow. It
would not be
pragmatic and expedient and could cause injustice.”
“The motion for execution has to be set for hearing. The
judgment debtor has to be heard. The good reasons for
execution pending appeal have to be scrutinized. These things
cannot be done within the short period of fifteen days, or in this
case, two days. The trial court may be confronted with other
matters more pressing that would demand its immediate
attention.”
So in this case, the court has not yet lost jurisdiction the act on
the motion for execution pending appeal even if it is beyond 15
days, provided the motion was filed within 15 days.
WHEN RECORD OF APPEAL IS REQUIRED
Q: How about an appeal where a record of appeal is required?
When is the appeal deemed perfected?
A: Second paragraph of Section 9: “A party’s appeal by record
on appeal is deemed perfected as to him with respect to the
subject matter thereof upon the approval of the record on appeal
filed in due time.” So it is not upon the filing of the record of
appeal, but upon the APPROVAL. Because as we said, under
Section 7, a record on appeal has to be approved while a notice
of appeal need not be approved.
As to the fourth paragraph: “In appeals by record on appeal, the
court loses jurisdiction only over the subject matter thereof upon
the approval of the records on appeal filed in due time and the
expiration of the time to appeal of the other parties.” The principle
is the same. But definitely an appeal is not perfected upon the
filing of the record on appeal but upon the approval.
The last point to remember in Section 9. GENERAL RULE: once
an appeal is deemed perfected from the viewpoint of both sides,
the trial court loses jurisdiction over the case. The jurisdiction is
automatically transferred to the Court of Appeals.
Q: Are there EXCEPTIONS to the rule? Are there things that
the trial court can do even if it has no more jurisdiction?
What things or actions can the trial court do?
A: Last paragraph of Section 9: “In either case, prior to the
transmittal of the original record or the record on appeal, the court
may issue orders for the protection and preservation of the rights
of the parties which do not involve any matter litigated by the
appeal, approve compromises, permit appeals of indigent
litigants, order execution pending appeal in accordance with
section 2 of Rule 39, and allow withdrawal of the appeal.”
Lets us outline the last paragraph: Once an appeal is deemed
perfected under Section 9, the RTC loses jurisdiction over the
case and can no longer act in that case.
Q: What things or what actions can the RTC do even if it
has technically lost jurisdiction over the case? Sometimes
they call this as the residual jurisdiction, a.k.a. “dukot”
jurisdiction.
A: For as long as the original record or the record on appeal is
not yet transmitted (because it takes some time for the records
to be transmitted) the trial court, despite the fact that it has
already lost jurisdiction, can do the following acts:
1) to issue orders for the protection and preservation of the
rights of the parties which do not involve in any matter
litigated in the appeal;
2) to approve compromises between the parties;
3) to permit appeals to indigent litigants;
4) to order executions pending appeal in accordance with
Section 2 of Rule 39; and 5) to allow the withdrawal of
the appeal.
6) The court can order the dismissal of an appeal under
Section 13, Rule 41.
Q: Can the parties settle the case amicably despite the fact
that there is already an appeal?
A: Yes, compromise is welcome anytime.
Q: Now who will approve the compromise?
A: Technically, the court has no jurisdiction. But for as long as
the records are still there, the trial court can approve the
compromise. Now, suppose the records are already transmitted
to the CA? Then you better submit your compromise agreement
before the CA.
Sections 10, 11, and 12 are purely administrative provisions.
Sec. 10. Duty of clerk of court of the lower
court upon perfection of appeal. Within thirty
(30) days after perfection of all the appeals
in accordance with the preceding section,
it shall be the duty of the clerk of court of
the lower court:
(a) To verify the correctness of the original
record or the record on appeal, as the case
may be, and to make a certification of its
correctness;
(b) To verify the completeness of the records
that will be transmitted to the appellate
court;
(c) If found to be incomplete, to take such
measures as may be required to complete
the records, availing of the authority that
he or the court may exercise for this
purpose; and
(d) To transmit the records to the appellate
court.
If the efforts to complete the records fail,
he shall indicate in his letter of
transmittal the exhibits or transcripts not
included in the records being transmitted
to the appellate court, the reasons for
their non-transmittal, and the steps taken
 or that could be taken to have them
available.
The clerk of court shall furnish the parties
with copies of his letter of transmittal of
the records to the appellate court. (10a)
Sec. 11. Transcript. Upon the perfection of
the appeal, the clerk shall immediately
direct the stenographers concerned to
attach to the record of the case five (5)
copies of the transcripts of the testimonial
evidence referred to in the record on
appeal. The stenographers concerned shall
transcribe such testimonial evidence and
shall prepare and affix to their transcripts
an index containing the names of the
witnesses and the pages wherein their
testimonies are found, and a list of the
exhibits and the pages wherein each of
them appears to have been offered and
admitted or rejected by the trial court.
The transcripts shall be transmitted to the
clerk of the trial court who shall
thereupon arrange the same in the order
in which the witnesses testified at the
trial, and shall cause the pages to be
numbered
consecutively. (12a)
Sec. 12. Transmittal. The clerk of the trial
court shall transmit to the appellate court
the original record or the approved record
on appeal within thirty (30) days from the
perfection of the appeal, together with the
proof of payment of the appellate court
docket and other lawful fees, a certified
true copy of the minutes of the
proceedings, the order of approval, the
certificate of correctness, the original
documentary evidence referred to therein,
and the original and three (3) copies of the
transcripts. Copies of the transcripts and
certified true copies of the documentary
evidence shall remain in the lower court
for the examination of the
parties. (11a)
Sec. 13. Dismissal of appeal. Prior to the
transmittal of the original record or the
record on appeal to the appellate court,
the trial court may motu proprio or on
motion dismiss the appeal for having been
taken out
of time. (14a)
Q: May the RTC dismiss the appeal?
A: Yes, for as long as the record of the case or the record of
appeal has not yet been transmitted to the appellate court, the
court may motu propio, even without any motion, or on motion
of the appellee, the trial court is empowered to dismiss the
appeal on the ground of having been taken out of time.
Q: Can the trial court dismiss the appeal on the ground that
the appeal is dilatory?
A: NO. The trial court has no power to say that the appeal is
dilatory. Such question can only be passed upon by the
appellate court. Otherwise, trial courts can easily forestall
review or reversal of their decisions no matter how erroneous
such decisions may be. (Dasalla vs. Caluag, L-18765. July 31,
1963; GSIS vs. Cloribel, L22236, June 22, 1965; Republic vs.
Rodriguez, L-26056, May 29, 1969) The only ground for the trial
court to dismiss appeal is for having been taken out of time.
That’s all.
Don’t confuse that with Rule 39.
Q: Can the prevailing party file a motion for execution
pending appeal, on the ground that the appeal is dilatory?
Any appeal which is frivolous is intended as dilatory.

A: Well, it’s not the appeal that is being questioned but whether there is a ground for
execution pending appeal. Ang jurisprudence niyan magulo eh: NO, the trial court
cannot do that. Only the CA can determine whether the appeal is dilatory. But there
are cases where the SC said YES because that can be a good reason.

Pero dito (Rule 41), iba ang tanong. The court is not being asked to grant an execution
pending appeal but being asked to dismiss an appeal. Ah, ito talaga hindi pwede.
NEVER, because of Section 13, Rule 41 – there is only one ground, filed out of time.
Yaaan!
 Rule 42
PETITION FOR REVIEW
FROM THE REGIONAL TRIAL COURTS
TO THE COURT OF APPEALS
Q: What are the modes of appeal from RTC to the CA?
A: It’s either ORDINARY APPEAL (Rule 41) or PETITION FOR
REVIEW (Rule 42).
Rule 41 refers to an ordinary appeal from the RTC to the CA –
yung notice of appeal. Here, the RTC rendered a decision
pursuant to its ORIGINAL JURISDICTION.
‘Eto namang Rule 42 (Petition for review) is the mode of appeal
from the RTC to the CA in cases decided by the RTC pursuant
to its APPELLATE JURISDICTION. So, the case here actually
originated in the MTC, then it was appealed to the RTC under
Rule 40. And now, from the RTC, you want to go to the CA.
Hence, the mode of appeal is not (Rule 41) Notice of Appeal but
RULE 42 – Petition for Review.
For the first time, there is now a rule governing petitions for
review from the RTC to the CA. Prior to July 1, 1997, there was
none. Although there were guidelines then – in jurisprudence,
decided cases and SC circulars.
Section 1. How appeal taken; time for filing.
A party desiring to appeal from a decision
of the Regional Trial Court rendered in the
exercise of its appellate jurisdiction may
file a verified petition for review with the
Court of Appeals, paying at the same time
to the clerk of said court the
corresponding docket and other lawful
fees, depositing the amount of P500.00 for
costs, and furnishing the Regional Trial
Court and the adverse party with a copy of
the petition. The petition shall be filed
and served within fifteen (15) days from
notice of the decision sought to be
reviewed or of the denial of petitioner’s
motion for new trial or reconsideration
filed in due time after judgment. Upon
proper motion and the payment of the full
amount of the docket and other lawful
fees and the deposit for costs before the
expiration of the reglementary period, the
Court of Appeals may grant an additional
period of fifteen (15) days only within
which to file the petition for review. No
further extension shall be granted except
for the most compelling reason and in no
case to exceed fifteen (15) days. (n)
Under Section 1, a petition for review under Rule 42 must be
VERIFIED.
Q: Where will you file your petition for review?
A: You file it directly with the CA. Do not file it with the trial
court.
In Rule 41, where the appeal is deemed perfected by simply
filing a notice of appeal, you file your notice of appeal with the
RTC. Do not file it with the CA. But in Rule 42, where the
appeal is by petition for review, you file your petition directly
with the CA. Do not file it with the RTC.
Not only that. Of course, you have to pay the docket and lawful
fees plus P500 for costs. And you must furnish the RTC and the
adverse party with a copy of the petition. That is a new
requirement.
Q: Where to file docket fee?
A: CA pa rin.
Q: What is the period to file a petition for review ?
A: The period to file a petition for review is 15 days from receipt
of the RTC judgment or from the order denying the motion for
reconsideration.
Q: What is the difference in period to file between Rule 41
and Rule 42 ?
A: In Rule 41, if your motion for reconsideration is denied, you
can still appeal within the remaining balance of the 15-day
period. In Rule 42, the 15-day period starts all over again
because the law says “or of the denial.” So, another fresh 15
days. This because it is more difficult to prepare a petition for
review. This is more timeconsuming than a simple notice of
appeal. We’ll go to examples:
PROBLEM: The case was decided by the MTC, appealed to the
RTC. And then in the RTC, you lost again. You receive a copy of
the decision on March 31. On April 10, you file a motion for
reconsideration. And then on April 20, you receive the order
denying the MFR.
Q: How many days more are left for you to file your petition
for review?
A: Kung sabihin mo 6 days from April 20 or April 26, that’s
FALSE! The answer is 15 days all over again. Look at the law:
“The petition shall be filed and served within fifteen (15) days
from notice of the decision sought to be reviewed or of the denial
of petitioner’s motion for new trial or reconsideration.” Meaning,
you count another 15 days from the denial. Umpisa na naman!
So the filing a motion for new trial or reconsideration in Rule 42
does not only interrupt the running of the period but it
commences to run all over again. Unlike in Rule 41, in ordinary
appeal, where the filing of the motion for reconsideration or new
trial merely interrupts the running of the period to appeal. And
it commences to run again from the time you are notified that
your motion is denied. See the difference?
Actually, if you are not serious in your study of appeal, you will
not see these distinctions. You will just assume that the
principles under Rule 41 and Rule 42 are the same.
Q: Under Section 1, is the 15-day period to file petition for
review extendible?
A: Under Rule 41, the 15-day period to file notice of appeal is
not extendible – no exceptions. But in Rule 42, the 15-day
period to file petition for review is EXTENDIBLE according to the
last sentence of Section 1, provided you pay your docket and
other lawful fees, the CA will grant additional 15 days within
which to file a petition for review.
Q: Where will you file your motion for extension of time to
file petition for review?
A: You file your motion for extension to the CA. The CA itself will
grant the extension.
Q: How many more days can the CA grant?
A: The CA may grant another 15 days and no further extension
can be granted except for the most compelling reasons. So,
original extension is 15 days, and a possible extension of 15
days = total 30 days.
These are technical points. And how many appealed cases have
been dismissed simply because these finer provisions were not
been observed by lawyers? I would say 60% of all appeals are
dismissed. Even in Davao, majority of petitions are dismissed
because nakulangan ng piso sa docket fee, karami. I presume
throughout the country, the pattern is the same because the
rules on appeal are very technical and very strict. That’s why
there are lawyers in Manila, even in Davao, who do not want to
handle appealed cases. They only handle cases in the trial
court. Pag-akyat na, nasa CA na, petition for certiorari, pasa na
sa iba.
But there are also who have mastered the rules on appeal. For
the purpose of specialization, trial phase and appeal phase. For
purposes of the bar, you have to know all the fields in laws.
Once you pass the bar, diyan na kayo mag-isip kung ano ang
pipiliin ninyo—civil, criminal, labor, etc. But for purposes of the
bar, you cannot say dito lang ako mag-aral sa Labor, wag na sa
Civil Law. Pwede ba yan? You cannot do that. Kaya nga sabi
nila, the people who know more about the law are those who
have just taken the bar.
Sec. 2. Form and contents. The petition
shall be filed in seven (7) legible copies,
with the original copy intended for the
court being indicated as such by the
petitioner, and shall (a) state the full
names of the parties to the case, without
impleading the lower courts or judges
thereof either as petitioners or
respondents; (b) indicate the specific
material dates showing that it was filed on
time; (c) set forth concisely a statement of
the matters involved, the issues raised,
the specification of errors of fact or law, or
both, allegedly committed by the Regional
Trial Court, and the reasons or arguments
relied upon for the allowance of the
appeal; (d) be accompanied by clearly
legible duplicate originals or true copies of
the judgments or final orders of both lower
courts, certified correct by the clerk of
court of the Regional Trial Court, the
requisite number of plain copies thereof
and of the pleadings and other material
portions of the record as would support
the allegations of the petition.
The petitioner shall also submit together
with the petition a certification under
oath that he has not theretofore
commenced any other action involving the
same issues in the Supreme Court, the
Court of Appeals or different divisions
thereof, or any other tribunal or agency; if
there is such other action or proceeding,
he must state the status of the same; and
if he should thereafter learn that a similar
action or proceeding has been filed or is
 pending before the Supreme Court, the
Court of Appeals, or different divisions
thereof, or any other tribunal or agency,
he undertakes to promptly inform the
aforesaid courts and other tribunal or
agency thereof within five
(5) days therefrom. (n)
Take note of Section 2. Do not implead the lower court or the
judge because nasanay na tayo na pati ‘yung judge naging
defendant or respondent na. We only do that in Certiorari under
Rule 65 in Special Civil Actions, but not on appeal. This is the
influence of Justice Feria because he has penned many cases
which has included the judge as defendant or respondent. So,
he said that in the case of MWSS vs. CA [Aug. 25, 1986], hence
we can see his influence, siningit talaga niya iyan sa kaso na
yon.
Now, as to the form [last paragraph], there has to be a
Certification of Non-Forum Shopping, failure to comply with
such would mean the dismissal of the case.
ORTIZ vs. COURT OF APPEALS – 299 SCRA 708 [1998]
FACTS: The certification was not signed by the Ortizes but by
their lawyer who has personal knowledge of the fact and
contended that it should be accepted as substantial compliance
with the rules.
HELD: The certification was not proper. Strict observance of the
rule is required. In this case, no explanation was given.
“Regrettably, We find that substantial compliance will not
suffice in a matter involving strict compliance. The attestation
contained in the certification on non-forum shopping requires
personal knowledge by the party who executed the same. To
merit the Court’s consideration, Ortizes here must show
reasonable cause for failure to personally sign the certification.
The Ortizes must convince the court that the outright dismissal
of the petition would defeat the administration of justice.
However, the Ortizes did not give any explanation to warrant
their exemption from the strict application of the rule. Utter
disregard of the rules cannot justly be rationalized by harking
on the policy of liberal construction.”
Q: Under paragraph [c], what issues can you raise in the
petition for review?
A: Errors of fact, errors of law, or both – mixed errors of fact or
law.
Somebody asked this QUESTION: hindi ba kapag error of law
dapat sa SC yan? Hindi na dadaan sa CA? How do you reconcile
this with the Constitution? Actually, when the law says
decisions of the RTC appealable directly to the SC, it was decided
pursuant to its original jurisdiction. But if it is decided
pursuant to its appellate jurisdiction, the appeal should be to
the CA even on pure questions of law without prejudice of going
to the SC later on.
Sec. 3. Effect of failure to comply with
requirements. The failure of the petitioner
to comply with any of the foregoing
requirements regarding the payment of the
docket and other lawful fees, the deposit
for costs, proof of service of the petition,
and the contents of and the documents
which should accompany the petition shall
be sufficient ground for the dismissal
thereof.
Section 3. If you fail to comply with the requirements, tapos ang
petition mo, dismiss!
Sec. 4. Action on the petition. The Court of
Appeals may require the respondent to file
a comment on the petition, not a motion
to dismiss, within ten (10) days from
notice, or dismiss the petition if it finds
the same to be patently without merit,
prosecuted manifestly for delay, or that
the questions raised therein are too
unsubstantial to
require consideration. (n)
Sec. 5. Contents of comment. The comment
of the respondent shall be filed in seven
(7) legible copies, accompanied by certified
true copies of such material portions of
the record referred to therein together
with other supporting papers and shall (a)
state whether or not he accepts the
statement of matters involved in the
petition; (b) point out such insufficiencies
or inaccuracies as he believes exist in
petitioner’s statement of matters involved
but without repetition; and (c) state the
reasons why the petition should not be
given due course. A copy thereof shall be
served on the petitioner. (n)
Sec. 6. Due course. If upon the filing of the
comment or such other pleadings as the
court may allow or require, or after the
expiration of the period for the filing
thereof without such comment or pleading
having been submitted, the Court of
Appeals finds prima facie that the lower
court has committed an error of fact or
law that will warrant a reversal or
modification of the appealed decision, it
may accordingly give
due course to the petition. (n)
Q: When you file a petition for review from the RTC to the CA, is
the CA obliged to entertain the petition?
A: No, this is discretionary under Section 6. The CA may or may
not give due course to the petition unlike in ordinary appeal.
Yan ang kaibahan ng ordinary appeal and petition for review.
In ordinary appeal under Rule 41, when you file notice of appeal
and you pay your docket fee, your appeal is automatically
entertained. At least it will be heard by the CA. But in Rule 42,
it is not the same. When you go there, whether your petition for
review will be given due course or not even if you have paid the
docket fee. Normally, the CA will required you to comment and
then chances are after another month and after reading your
petition and your comment, the CA will refuse to give due
course to your petition, “Your petition is hereby dismissed!” So,
you must convince the CA na may merit baah!
Q: What happens when the petition for review is given due
course?
A: The parties will be required to submit their respective
memoranda.
Take note that the RTC is also given the power to issue orders
for the protection of the parties – the same as in Section 8,
paragraph
[b].
 Sec. 7. Elevation of record. Whenever the
Court of Appeals deems it necessary, it
may order the clerk of court of the
Regional Trial Court to elevate the original
record of the case including the oral and
documentary evidence within fifteen (15)
days from notice.
(n)
Q: Now, when is an appeal by petition for review deemed
perfected?
A: Section 8 [a]. Similar to Rule 41. The same principle:
of the parties which do not involve any
matter litigated by the appeal, approve
compromises, permit appeals of indigent
litigants, order execution pending appeal
in accordance with section 2 of Rule 39,
and allow withdrawal of the
appeal. (9a, R41)
(b) Except in civil cases decided under the
Rule on Summary Procedure, the appeal
shall stay the judgment or final order
unless the Court of Appeals, the law, or
these Rules shall provide otherwise. (n)

Sec. 8. Perfection of appeal; effect thereof. (a)
Upon the timely filing of a petition for
review and the payment of
corresponding docket and other lawful
fees, the appeal is deemed perfected as to
the petitioner.
The Regional Trial Court loses jurisdiction
over the case upon the perfection of the
appeals filed in due time and the
expiration of the time to appeal of the
other parties.
Q: Does the RTC have the power to act despite the fact that the
petition for review is already before the CA? Suppose I lost in
the the MTC, and I also lost on appeal in the RTC. I file a petition
for review. What happens to the decision? Can the decision
be enforced?
A: NO, it cannot be enforced yet because it is not yet final.
We still have to wait for the appeal to be dismissed or to
be entertained and denied later. Under paragraph [b], the
appeal shall stay the judgment or final order UNLESS the
CA, the law or these rules should provide otherwise.

However, before the Court of Appeals gives Also, based on the opening clause of paragraph [b], except in
due course to the petition, the Regional civil cases provided in the Rules on Summary Procedure, any part
Trial Court may issue orders for the thereafter appealed to the CA will not stop the implementation
protection and preservation of the rights of the RTC decision.

Under Section 21 of the Summary Rules, when a case is started in the MTC under the
Summary Procedure, and appealed to the RTC and decided by the RTC, the decision
becomes immediately executory. Even if we file a petition for review, it is executory.
The only way to stop the RTC from enforcing that judgment is to get a TRO or a writ of
preliminary injunction from the CA. That is the rule.

I have a similar case now on that issue. The case originated from the MTC for
ejectment. The defendant lost, akyat ngayon sa RTC, affirmed. And then akyat na
naman ang defendant sa CA on petition for review (although right now, it has not yet
been given due course) with a prayer for TRO. But the CA said that there is no
compelling reason to issue one. In the meantime, I filed a motion for execution. The
defendant opposed on the ground that a judgment cannot be executed daw because of
a pending petition for review. But this is under the Summary Rules – ejectment. This is
an exception, so that will not apply.

Sec. 9. Submission for decision. If the petition is given due course, the
Court of Appeals may set the case for oral argument or require the
parties to submit memoranda within a period of fifteen (15) days from
notice. The case shall be deemed submitted for decision upon the filing
of the last pleading or memorandum required by these Rules or by the
court itself. (n)
 Rule 43
APPEALS FROM THE COURT OF TAX APPEALS AND
QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS
Let us now go to Rule 43 which governs Appeals from the Court
of Tax Appeals and Quasi-Judicial Agencies to the Court of
Appeals. Take note that under Section 9 of BP 129, the CA has
the exclusive appellate jurisdiction to review decisions of all RTC
and QuasiJudicial Bodies, and Rule 43 is the governing rule on
appeals from quasi-judicial bodies.
So, before this, appeal to the CA of Tax cases is supposed to be
to the SC. Now it is reverted to the CA, and also quasi-judicial
agencies. What was the prior law? It is Revised Administrative
Circular No. 1-95, which was promulgated on January 1, 1995.
Now it is Rule 43 – the circular was actually quoted here
verbatim. So, you can no longer go to the SC, even on pure
questions of law, ha! Decisions of quasi-judicial agencies must
pass first to the CA even on pure questions of law.
Now what are these quasi-judicial bodies? They are enumerated
in Section 1:
Section 1. Scope. This Rule shall apply to
appeals from judgments or final orders of
the Court of Tax Appeals and from awards,
judgments, final orders or resolutions of
or authorized by any quasi-judicial agency
in the exercise of its quasi-judicial
functions. Among these agencies are the
Civil Service Commission, Central Board
of Assessment Appeals, Securities and
Exchange
Commission, Office of the President, Land
Registration Authority, Social Security
Commission, Civil Aeronautics Board,
Bureau of Patents, Trademarks and
Technology Transfer, National
Electrification Administration, Energy
Regulatory Board, National
Telecommunications Commission,
Department of Agrarian Reform under
Republic Act No. 6657, Government
Service
Insurance System, Employees
Compensation Commission, Agricultural
Inventions Board, Insurance Commission,
Philippine Atomic Energy Commission,
Board of Investments, Construction
Industry Arbitration Commission, and
voluntary arbitrators authorized by law.
(n)
So, very specific! The latest addition there are decisions of
voluntary arbitrators. Prior to that, it can be brought by
certiorari to the SC, but because of a decided case it is now be
brought to the CA.
One case under Rule 43 which I want to discuss with you is the
case of
LEPANTO CERAMICS vs. CA – 237 SCRA 519 [1994]
FACTS: This involves appeals from the Board of Investments
(BOI). Now, as provided in the original Omnibus Investment
Code of 1981 during the Marcos era, decisions of the BOI are
appealable directly to the SC. But years later it was nullified by
the Judiciary Law because all decisions of all quasi-judicial
bodies are appealed to the CA.
Four years later the Constitution took effect. In July 1987
during the term of Cory Aquino, she promulgated E.O. No. 226,
the so-called Omnibus Investment Code of 1987 where
provisions from the old code were merely lifted. And among
those included is the provision on appeals from the BOI where
you go directly to the SC.
The position of Lepanto is, the new law (E.O. No. 226) has
modified BP 129 because the old law was modified by BP 129.
And since this is a new law, binalik na naman ang appeal sa
SC. So na modify ang BP 129.
HELD: NO. Lepanto is wrong because when Cory Aquino issued
E.O. No. 226, the New Constitution has taken effect. And under
the 1987 Constitution, you cannot increase the appellate
jurisdiction of the SC without its consent and concurrence. In
effect, the new law (E.O. No. 226) increased the work of the SC
without its knowledge and consent therefore the SC did not
agree. The SC rejected the provision that decisions of the BOI
are appealable directly to the SC.
In the case of FABIAN vs. DESIERTO [December 16, 1998], a
provision under RA 6670, which provides that decisions of the
Office of the Ombudsman in administrative disciplinary cases,
was declared unconstitutional because the appellate jurisdiction
of the SC was increased without its advice and consent.
Another case is MATEO vs. CA (247 SCRA 284 [1995]). This is
before Revised Administrative Code No. 1-95. As I have told you
before, rulings of different constitutional commissions, CSC,
COA, COMELEC should be direct to the SC. That is why the
case of MANCITA vs. BARCINAS (216 SCRA 772) is deemed
abandoned because the new procedure is that decisions of the
CSC are now appealable to the CA.
Sec. 2. Cases not covered. This Rule shall not apply
to judgments or final orders issued under the Labor
Code
of the Philippines. (n)
Section 2 refers to decisions of NLRC and the Secretary of Labor.
Their decisions can be brought directly to the SC by way of
petition for Certiorari under Rule 65, not by appeal (Rule 43).
Sec. 3. Where to appeal. An appeal under this Rule
may be taken to the Court of Appeals within the
extension shall be granted except for the most should be denied or dismissed. A copy thereof shall be compelling reason and in
no case to exceed fifteen (15) served on the petitioner, and proof of such service shall
days. (n) be filed with the Court of Appeals. (9a)
period and in the manner herein provided, whether
the appeal involves questions of fact, of law, or
mixed questions of fact and law. (n)
Sec. 4. Period of appeal. The appeal shall be taken
within fifteen (15) days from notice of the award,
judgment, final order or resolution, or from the
date of its last publication, if publication is
required by law for its effectivity, or of the denial
of petitioner’s motion for new trial or
reconsideration duly filed in accordance with the
governing law of the court or agency a quo. Only
one (1) motion for reconsideration shall be allowed.
Upon proper motion and the payment of the full
amount of the docket fee before the expiration of
the reglementary period, the Court of Appeals may
grant an additional period of fifteen (15) days only
within which to file the petition for review. No
further

Sec. 5. How appeal taken. Appeal shall be taken by filing Sec. 10. Due course. If upon the filing of the comment or a verified
petition for review in seven (7) legible copies such other pleadings or documents as may be required with the Court of Appeals,
with proof of service of a or allowed by the Court of Appeals or upon the copy thereof on the adverse party and on the court or
expiration of the period for the filing thereof, and on agency a quo. The original copy of the petition intended the basis of the
petition or the records the Court of for the Court of Appeals shall be indicated as such by Appeals finds prima facie that the
court or agency the petitioner. concerned has committed errors of fact or law that would warrant reversal or modification of
the award,
Upon the filing of the petition, the petitioner shall pay judgment, final order or resolution sought to be to the clerk of court of
the Court of Appeals the reviewed, it may give due course to the petition; docketing and other lawful fees and deposit the sum
of otherwise, it shall dismiss the same. The findings of fact P500.00 for costs. Exemption from payment of of the court or
agency concerned, when supported by docketing and other lawful fees and the deposit for substantial evidence, shall be binding
on the Court of costs may be granted by the Court of Appeals upon a Appeals. (n) verified motion setting forth valid grounds
therefor. If the Court of Appeals denies the motion, the petitioner Sec. 11. Transmittal of record. Within fifteen (15) days shall
pay the docketing and other lawful fees and from notice that the petition has been given due deposit for costs within fifteen
(15) days from notice of course, the Court of Appeals may require the court or the denial. (n) agency concerned to transmit the
original or a legible certified true copy of the entire record of the
Sec. 6. Contents of the petition. The petition for review proceeding under review. The record to be transmitted shall (a) state the
full names of the parties to the case, may be abridged by agreement of all parties to the without impleading the court or
agencies either as proceeding. The Court of Appeals may require or permit
petitioners or respondents; (b) contain a concise subsequent correction of or addition to the record. (8a) statement of the facts
and issues involved and the
grounds relied upon for the review; (c) be accompanied Sec. 12. Effect of appeal. The appeal shall not stay the by a clearly legible
duplicate original or a certified true award, judgment, final order or resolution sought to be copy of the award, judgment, final
order or resolution reviewed unless the Court of Appeals shall direct appealed from, together with certified true copies of
otherwise upon such terms as it may deem just. (10a) such material portions of the record referred to therein and other
supporting papers; and (d) contain a sworn Sec. 13. Submission for decision. If the petition is given certification against forum
shopping as provided in the due course, the Court of Appeals may set the case for last paragraph of section 2, Rule 42. The
petition shall oral argument or require the parties to submit state the specific material dates showing that it was memoranda
within a period of fifteen (15) days from filed within the period fixed herein. (2a) notice. The case shall be deemed submitted for
decision upon the filing of the last pleading or memorandum
Sec. 7. Effect of failure to comply with requirements. The required by these Rules or by the Court of Appeals. (n) failure of the
petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, the
deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the
petition shall be sufficient ground for the dismissal thereof. (n)

Sec. 8. Action on the petition. The Court of Appeals may require the
respondent to file a comment on the petition, not a motion to dismiss,
within ten (10) days from notice, or dismiss the petition if it finds the
same to be patently without merit, prosecuted manifestly for delay, or
that the questions raised therein are too unsubstantial to require
consideration. (6a)

Sec. 9. Contents of comment. The comment shall be filed within ten (10)
days from notice in seven (7) legible copies and accompanied by clearly
legible certified true copies of such material portions of the record
referred to therein together with other supporting papers. The
comment shall (a) point out insufficiencies or inaccuracies in
petitioner’s statement of facts and issues; and (b) state the reasons why
the petition
PROCEDURE IN THE COURT OF APPEALS
 Rule 44 Sec. 5. Completion of record.
Where the record of the
ORDINARY APPEALED CASES docketed case is incomplete,
the clerk of court of the
Court of Appeals shall so
We will now go to Rule 44 which is Procedure in the Court of Appeals in inform said court and
Ordinary Appealed Cases. This is just the continuation of Rule 41. When recommend to it measures
a case is appealed to the CA under Rule 41, this is ordinary appeal necessary to complete the
(decisions of RTC pursuant to its original jurisdiction), so what will record. It shall be the duty of
happen here? said court to take
appropriate action towards
Take note that the procedure in the CA is not only found in the Rules of the completion of the record
Court. The Internal Rules of the CA is found in its so called Revised within the shortest
Internal Rules of the Court of Appeals (RIRCA). possible time. (n)

So it is best that you go over it. For purposes of the BAR, hindi na Sec. 6. Dispensing with
kailangan yan! There are some provisions kasi na wala sa Rules of Court. complete record. Where the
I have a copy of that eh, leather-bound! It just so happen that we have an completion of the record
could not be accomplished
alumna who is the head of the Records Division of the CA.
within a sufficient period
allotted for said purpose due
Anyway, take note that under the present rules when the RTC clerk to insuperable or extremely
transmits the records to the CA, nandoon na ang docket fee. Now, once difficult causes, the court,
original record is there, next is you will receive a notice from the clerk of on its own motion or on
court that all the records are there, all the documentary evidence. And motion of any of the parties,
you are now given 45 days to file an appellant’s brief under Section 7 may declare that the record
which has to be answered by the appellee under Section 8. And the and its accompanying
appellant is given the option to file an appellant’s reply brief under transcripts and exhibits so
Section 9. As to the contents of the appellant’s brief and appellee’s brief, far available are sufficient to
you have Sections 13 and 14. decide the issues raised in
the appeal, and shall issue an
Section 1. Title of cases. In all cases appealed to the order explaining the reasons
Court of Appeals under Rule 41, the title of the for such
case shall remain as it was in the court of origin, declaration. (n)
but the party appealing the case shall be further
referred to as the appellant and the adverse party Sec. 7. Appellant’s brief. It
as the appellee. (1a, R46) shall be the duty of the
appellant to file with the
Sec. 2. Counsel and guardians. The counsel and court, within forty-five (45)
guardians ad litem of the parties in the court of days from receipt of the
origin shall be respectively considered as their notice of the clerk that all
counsel and guardians ad litem in the Court of the evidence, oral and
Appeals. When others appear or are appointed, documentary, are attached
notice thereof shall be served immediately on the to the record, seven (7)
adverse party and filed with the court. (2a, R46) copies of his legibly
typewritten, mimeographed
or printed brief, with proof of
Sec. 3. Order of transmittal of record. If the original service of two (2) copies
record or the record on appeal is not transmitted thereof upon the
to the Court of Appeals within thirty (30) days after
appellee. (10a, R46)
the perfection of the appeal, either party may file a
motion with the trial court, with notice to the
other, for the transmittal of such record or record Sec. 8. Appellee’s brief. Within
on forty-five (45) days from
appeal. (3a, R46) receipt of the appellant’s
brief, the appellee shall file
with the court seven (7)
Sec. 4. Docketing of case. Upon receiving the original copies of his legibly
record or the record on appeal and the typewritten, mimeographed
accompanying documents and exhibits transmitted or printed brief, with proof of
by the lower court, as well as the proof of payment service of two (2) copies
of the docket and other lawful fees, the clerk of thereof upon the appellant.
court of the Court of Appeals shall docket the case (11a, R46)
and notify the parties thereof.
Sec. 9. Appellant’s reply brief.
Within ten (10) days from receipt of said notice, the Within twenty (20) days from
appellant, in appeals by record on appeal, shall file with receipt of the appellee’s
the clerk of court seven (7) clearly legible copies of the brief, the appellant may file
approved record on appeal, together with the proof of a reply brief answering
service of two (2) copies thereof upon the appellee. points in the appellee’s brief
not covered in his main
Any unauthorized alteration, omission or addition in brief. (12, R46)
the approved record on appeal shall be a ground for
dismissal of the appeal. Sec. 10. Time for filing memoranda
(n) in special cases. In certiorari,
prohibition, mandamus, quo
 warranto and habeas corpus cases, the parties shall file, in Sec. 14. Contents of
lieu of briefs, their respective memoranda within a appellee’s brief. The
nonextendible period of thirty (30) days from receipt of the appellee’s brief shall
notice issued by the clerk that all the evidence, oral and contain, in the order
documentary, is herein indicated, the
already attached to the record. (13a, R46) following:

The failure of the appellant to file his memorandum within (a) A subject index of the
the period therefor may be a ground for dismissal of the matter in the brief with
appeal. a digest of the
(n) arguments and page
references, and a table
of cases alphabetically
Sec. 11. Several appellants or appellees or several counsel for
arranged, textbooks and
each party. Where there are several appellants or appellees,
statutes cited with
each counsel representing one or more but not all of them
references to the pages
shall be served with only one copy of the briefs. When
several counsel represent one appellant or appellee, copies where they are cited;
of the brief may be served upon any of them. (14a, R46)
(b) Under the heading
Sec. 12. Extension of time for filing briefs. Extension of time "Statement of Facts,"
for the filing of briefs will not be allowed, except for good the appellee shall state
and sufficient cause, and only if the motion for extension is that he accepts the
filed before the expiration of the statement of facts in the
appellant’s brief, or
time sought to be extended. (15, R46)
under the heading
"Counter-Statement of
Sec. 13. Contents of appellant’s brief. The appellant’s brief Facts," he shall point
shall contain, in the order herein indicated, the following: out such insufficiencies
or inaccuracies as he
(a) A subject index of the matter in the brief with a digest of believes exist in the
the arguments and page references, and a table of cases appellant’s statement of
alphabetically arranged, textbooks and statutes cited facts with references to
with references to the pages where they are cited; the pages of the record
in support thereof, but
(b) An assignment of errors intended to be urged, which without repetition of
errors shall be separately, distinctly and concisely matters in the
stated without repetition and numbered consecutively; appellant’s statement of
facts; and
(c) Under the heading "Statement of the Case," a clear and
concise statement of the nature of the action, a (c) Under the heading
summary of the proceedings, the appealed rulings and "Argument," the appellee
orders of the court, the nature of the judgment and any shall set forth his
other matters necessary to an understanding of the arguments in the case
nature of the controversy, with page references to the on each assignment of
record; error with page
references to the record.
The authorities relied on
(d) Under the heading "Statement of Facts," a clear and shall be cited by the
concise statement in a narrative form of the facts page of the report at
admitted by both parties and of those in controversy, which the case begins
together with the substance of the proof relating thereto and the page of the
in sufficient detail to make it clearly intelligible, with report on which the
page references to the record; citation is found.
(e) A clear and concise statement of the issues of fact or law (17a, R46)
to be submitted to the
court for its judgment;
This is like a thesis or writing a book –
Appellant’s and appellee’s brief.
(f) Under the heading "Argument," the appellant’s
arguments on each assignment of error with page
references to the record. The authorities relied upon Q: What is a brief? What is its purpose?
shall be cited by the page of the report at which the case
begins and the page of the report on which the A: The word “BRIEF” is derived from the
citation is found; Latin word “BREVIS” [AND BRUTTHEAD]
and the French word “BREFIE”, and literally
(g) Under the heading "Relief," a specification of the order means a short or condensed statement. Its
or judgment which the appellant purpose is to present to the court in concise
seeks; and form the points and questions in controversy,
and by fair argument on the facts and law of
the case, to assist the court to arrive at a just
(h) In cases not brought up by record on appeal, the
and fair conclusion. It should be prepared as
appellant’s brief shall contain, as an appendix, a copy of
the judgment or final to minimize the labor of the court in the
examination of the record upon which the
order appealed from. (16a, R46)
appeal is heard. (Estiva vs. Cawit, 59 Phil.
67;
Casilan vs. Chavez, L-17334, Feb. 28, 1962)

So you summarize the case, facts, issues, arguments, discussions,
citations of laws. So its like a debate no?
Alright. The best brief writers I noticed are those in the Solicitor General’s
office. Just imagine, the Solicitor General defends all the cases of the
government. When a criminal case is appealed by the accused to the CA
or CA, automatically the Solicitor General takes over. In the lower court,
it is the fiscals ‘no?
So, the Solicitor General defends the case he had never tried. So they just
based it on records. They condensed decisions kahit na gaano ang kapal,
reducing it to 15 pages or less. It’s really an ability to do it. The shorter
the better. People there in the Solicitor General’s office are really good
writers and researchers because that is the law office of the Republic of
the Philippines. Lahat dyan magagaling, isa lang ang hindi marunong.
SINO? Ang Solicitor General ninyo! He is only a political appointee. (F.
Chavez? Or
Galvez?)
Q: Is the 45-day period to file brief extendible?
A: YES, that is section 12. The worst violator here is the Solicitor General –
extension 30 days, 2nd extension 30 days! Ganyan sila! Sometimes it
takes them 18 months to prepare a brief. Sabagay, marami din kasi
silang trabaho ‘no?
Q: When do you file the motion for extension of time to file brief?
A: The motion for extension of time is filed BEFORE the expiration of the
time sought to be extended. (Section 12) BUT sometimes the SC can be
liberal about extension. One case is
MOSKOWSKY vs. CA – 230 SCRA 657
FACTS: The CA here granted the appellant a period of 90 days counted
from August 3, 1991. So after the 45 days plus 90 days pa from August
3, 1991. Said 90-day period ended on November 1, 1991. On November
4, 1991, or 3 days after the extended period, instead of filing a brief,
appellant filed another motion for a 20-day extension.
ISSUE #1: Was the motion for extension filed on time based on Section
12?
HELD: YES. “Said ninety-day period would end on November 1, 1991.
November 1 is a regular holiday. Then President Aquino declared
November 2, 1991 as a special holiday. The next day, November 3, 1991
turned out to be a Sunday. The next business day was, therefore,
November 4, 1991 - a Monday.”
“The abovementioned motion was, therefore, filed on time, i.e., the motion
for the extension sought was filed before the expiration of the time sought
to be extended.”
ISSUE #2: When do you compute the 20-day extension being asked for?
Is it on November 1, the expiration of the period? Or on November 4, the
day of the filing of the motion?
HELD: “The appellant specifically manifested that they will need another
extension from today (November 4) within which to file appellant’s brief,
and ‘today’ is November 4. So, the period commences to run on
November 4.” So very liberal no?
Take note of Section 15 – what questions may an appellant raise on
appeal:
Sec. 15. Questions that may be raised on appeal.
Whether or not the appellant has filed a motion for
new trial in the court below, he may include in his
assignment of errors any question of law or fact
that has been raised in
the court below and
which is within the
issues framed by the
parties. (18, R46)
So the appellant cannot raise before the CA
on appeal any question of law or fact that
has not been raised in the lower court and
not within the issues framed by the parties.
He cannot, for the first time on appeal, say
something which was not raised in the trial
court. Another thing is, he cannot change
his theory on appeal, either theory on
the cause of action or theory on the
defense.
Now, sometimes it is easy to detect whether
there is change of theory. The only possible
exception maybe is when you raise for the
first time on appeal something which you
never raised as in lack of jurisdiction unless
estoppel will set in as in the case of TIJAM
vs. SIBONGHANOY. Illustrating this point is
the case of
RIVERA vs. CA – 176 SCRA 169 [1989]
FACTS: The spouses Martinez sold their
house and lot to Rivera. Later, they filed a
complaint against Rivera declaring the sale
as null and void on the ground that the sale
is a mortgage. The court dismissed the
complaint. So the ruling of the trial court
was that the sale was valid. But on the CA,
Martinez spouses prayed that they maybe
allowed to redeem the property.
The CA reversed the trial court and allowed
Martinez spouses to redeem the property.
Now, Rivera appealed to the CA, contending
that Martinez change the theory of their
case because in the original complaint the
latter prayed for the annulment of the sale,
and in the CA they prayed that they be
allowed to redeem the property.
ISSUE: Was there a change of theory of the
Martinez spouses?
HELD: There was NO CHANGE of theory.
There was no surprise against Rivera or to
the CA. The real purpose of the Martinez
spouses in asking for the nullity of the
contract is to enable them to recover the
property from Rivera.
“Prescinding from those allegations and from
the prayer all clearly set out in the
complaint, it is fair to conclude that the real
purpose in asking for the nullity of the
contract of sale is to enable the Martinez
spouses to recover or redeem the property
they deeded in favor of Rivera. It would be
absurd to pray for the nullity of an
agreement and stop there. There would be a
vacuum and the law,
like nature, abhors a vacuum.”
“In the CA, they persisted in their claim to
entitlement of the right to recover, redeem,
or repurchase. This agreement can not be construed as change of theory;
it is persistence, plain and simple. It does not leave any interstice in the
entire theory of the case.
Consistency in the position of the private respondents runs throughout the presentation of their
claim.”

So akala mo may change of theory, yun pala wala! Why are they annulling? To recover
their property. In other words there was no change of theory.

Q: Is the appellee required to make assignment of errors?

A: The APPELLEE is not required to make assignment of errors, except when his
purpose is to seek affirmation of the judgment on other grounds or reasons not stated in
the decision. (Saenz vs. Mitchell, 60 Phil. 69; Gorospe vs. Peñaflorida, 101 Phil. 886;
Dy vs.
Kuison, L-16654, Nov. 30, 1961)
Q: If the appellee seeks modification of the judgment, is it enough for
him to make assignment of errors?
A: In such a case, the appellee must appeal; an assignment of error is
not enough. (Oquiñena vs. Canda, 87 Phiil. 120; Gorospe vs.
Peñaflorida, supra; Dy vs. Kuison, supra)

GENERAL RULE: If you are the winning party, you may appeal the decision if you
think you are entitled for more. So, you must appeal. You cannot just state of errors in
the appellee’s brief.

EXCEPTION: You may state assignment of errors to support the decision – to support,
not to change, the decision. If you want to change the decision, you appeal (general
rule).

Rule 46
ORIGINAL CASES

Q: What is the difference between Rule 46 and Rule 44?
A: Rule 44 deals with appealed cases. Rule 46 deals with
original cases. Remember that the CA is both an original and
appellate court.
Q: What are these original cases which can be filed in the CA?
A: Under Section 9 of BP 129, Certiorari, prohibition,
mandamus, quo warranto, annulment of judgment of the RTC.
The Annulment of Judgment of the RTC, which belongs to the
exclusive original jurisdiction of the CA, is governed by Rule 47.
Now, all the rest of the sections here are almost the same: how
many copies, docket fees, certification of non-forum shopping,
etc…
Section 1. Title of cases. In all cases
originally filed in the Court of Appeals, the
party instituting the action shall be called
the petitioner and the opposing party the
respondent. (1a)
Rule 44 on appeal to the CA, the caption of the case is the same
as the caption in the RTC (e.g. in the RTC, “RED HOT vs. LIMP
BIZKIT”). You just add the word ‘appellant’ and ‘appellee.’ BUT
in Rule 44 in original cases, the parties are now called
‘petitioner’ and
‘respondent.’
Sec. 2. To what actions applicable. This Rule
shall apply to original actions for
certiorari, prohibition, mandamus and quo
warranto.
Except as otherwise provided, the actions
for annulment of judgment shall be
governed by Rule 47, for certiorari,
prohibition and mandamus by Rule 65,
and for quo warranto
by Rule 66. (n)
Therefore, the provisions of Rules 65, 66 and 47 which apply to
this original action should be read with Rule 46.
Just read Section 3. Take note of the second paragraph which
was inserted in 1998 by SC Circular 39-98).
Sec. 3. Contents and filing of petition; effect of
non-compliance with requirements. The
petition shall contain the full names and
actual addresses of all the petitioners and
respondents, a concise statement of the
matters involved, the factual background
of the case, and the grounds relied upon
for the relief prayed for.
In actions filed under Rule 65, the petition
shall further indicate the material dates
showing when notice of the judgment or
final order or resolution subject thereof
was received, when a motion for new trial
or reconsideration, if any, was filed and
resolution, like for example, “Defendant/Respondent, you are
comment.”
when notice of the denial thereof was
received.
(Cir. No. 39-98)
It shall be filed in seven (7) clearly legible
copies together with proof of service
thereof on the respondent with the original
copy intended for the court indicated as
such by the petitioner, and shall be
accompanied by a clearly legible duplicate
original or certified true copy of the
judgment, order, resolution, or ruling
subject thereof, such material portions of
the record as are referred to therein, and
other documents relevant or pertinent
thereto. The certification shall be
accomplished by the proper clerk of court
or by his duly authorized representative, or
by the proper officer of the court, tribunal,
agency or office involved or by his duly
authorized representative. The other
requisite number of copies of the petition
shall be accompanied by clearly legible
plain copies of all documents attached to
the original.
The petitioner shall also submit together
with the petition a sworn certification that
he has not theretofore commenced any
other action involving the same issues in
the Supreme Court, the Court of Appeals or
different divisions thereof, or any other
tribunal or agency; if there is such other
action or proceeding, he must state the
status of the same; and if he should
thereafter learn that a similar action or
proceeding has been filed or is pending
before the Supreme Court, the Court of
Appeals, or different divisions thereof, or
any other tribunal or agency, he
undertakes to promptly inform the
aforesaid courts and other tribunal or
agency thereof within five (5) days
therefrom.
The petitioner shall pay the corresponding
docket and other lawful fees to the clerk of
court and deposit the amount of P500.00
for costs at the time of the filing of the
petition.
The failure of the petitioner to comply with
any of the foregoing requirements shall be
sufficient ground for the dismissal of the
petition. (n)
Sec. 4. Jurisdiction over person of respondent,
how acquired. The court shall acquire
jurisdiction over the person of the
respondent by the service on him of its
order or resolution indicating its initial
action on the petition or by his voluntary
submission to
such jurisdiction. (n)
When you file an original action before the CA like certiorari,
normally under Section 3 you already furnish the adverse party
with a copy of your petition. Then the CA will now issue a
given so many days to
That is how the CA acquires jurisdiction over your person – by serving you a copy of
the order indicating its initial action. So there is no more summons because you were
already furnished a copy earlier.

Sec. 5. Action by the court. The court may dismiss the petition outright
with specific reasons for such dismissal or require the respondent to
file a comment on the same within ten (10) days from notice. Only
pleadings required by the court shall be allowed. All other pleadings and
papers may be filed only with leave of court. (n)

Sec. 6. Determination of factual issues. Whenever necessary to resolve

factual issues, the court itself may conduct hearings thereon or
delegate the reception of the evidence on such issues to any of its
members or to an appropriate court, agency or office. (n)

Sec. 7. Effect of failure to file comment. When no comment is

filed by any of the respondents, the case may be
decided on the basis of the record, without prejudice to any
disciplinary action which the court may take against the disobedient party. (n)

Rule 47 Now, that should not be confused with certiorari, prohibition

and mandamus which fall under the original concurrent
ANNULMENT OF JUDGMENTS OR jurisdiction of the CA. Rule 47 or annulment of judgment of the
RTC falls within the exclusive original jurisdiction of the CA.
FINAL ORDERS AND RESOLUTIONS

Take note that in an appeal, the judgment appealed from is

Rule 47 is an entirely new rule which governs the remedy of
annulment of judgments or final orders or resolutions. We
already met this remedy in judiciary law. The CA has original
exclusive jurisdiction to annul final judgments and resolutions
of the RTC. (Section 9, BP 129) So it is an entirely original
action for annulment of judgment of the RTC.
valid. But in annulment under Rule 47, the judgment is being
asked to be declared void.
Under the prior law there was no direct rule governing that
remedy. The only guideline for annulment of judgments of the
RTC are decided cases. Now for the first time the 1997 Rules
have a definite rule on how to enforce this remedy.

Section 1. Coverage. This Rule shall govern
the annulment by the Court of Appeals of
judgments or final orders and resolutions
in civil actions of Regional Trial Courts for
which the ordinary remedies of new trial,
appeal, petition for relief or other
appropriate remedies are no longer
available through no
fault of the petitioner. (n)
Nature of the action
An action for annulment of judgment is a remedy in law
independent of the case where the judgment sought to be
annulled was rendered. The purpose of such action is to have
the final and executory judgment set aside so that there will be
a renewal of litigation. It is resorted to in cases where the
ordinary remedies of new trial, appeal, petition for relief from
judgment, or other appropriate remedies are no longer available
through no fault of the petitioner, and is based only on two
grounds: extrinsic fraud, and lack of jurisdiction or denial of
due process (Alaban vs. CA 470 SCRA 697).
This remedy is available only where the ordinary remedies of
new trial, appeal, petition for review or appropriate remedies are
no longer available through no fault of the petitioner. Hence, if
such remedies were not availed of due to the petitioner’s fault,
the petition will be dismissed (Republic vs. Asset Privatization
Trust GR 141241, Nov. 22, 2005; Sec. 1, Rule 47).
Like a petition for relief, an action for the annulment of a
judgment is a recourse equitable in character, allowed only in
exceptional cases as where there is no available or adequate
remedy (Ramos vs. Combong 473 SCRA 499). The remedy may
no longer be invoked where the party has availed himself of the
remedy of new trial, appeal, petition for relief or other
appropriate remedy and lost or where he has failed to avail
himself of those remedies through his fault or negligence (Heirs
of Maura So vs. Obliosca 542 SCRA 406) Well of course the
remedy of new trial under Rule 37 must be availed of before the
judgment or order becomes final and executory. Also, the
remedy of appeal must also be availed before the judgment or
order becomes final and executory.
In petition for relief under Rule 38, although the judgment or
order is already final and executory, it must be done still within
60 days and 6 months.
Q: Suppose all the abovementioned remedies have lapsed, is
there a remedy left?
A: Section I says YES. There is annulment of judgment but only
on limited grounds.
Who may file the action?
The petitioner need not be a party to the judgment sought to be
annulled. What is essential is that the petitioner is one who can
prove his allegation that the judgment was obtained by the use
of fraud and collusion and that he was affected thereby (Alaban
vs. CA; Islamic Da’Wah Council of the Phil. vs. CA 178 SCRA
178). An action for annulment can be filed by one who was not
a party to the action in which the assailed judgment was
rendered. It is a remedy in law independent of the case where
the judgment sought to be annulled is promulgated (Villanueva
vs. Nite 496 SCRA 459).
Sec. 2. Grounds for annulment. The
annulment may be based only on the
grounds of extrinsic fraud and lack of
jurisdiction.
Extrinsic fraud shall not be a valid ground
if it was availed of, or could have been
availed of, in a motion for new trial or
petition for relief.
(n)
Q: What are the grounds for annulment of judgment under
Section 2?
A: The grounds recognized by law for annulment of judgment
are the only two (2):
1) The judgment was secured through extrinsic fraud; or
Extrinsic fraud should not be a valid ground if availed
of, or could have been availed of, in a motion for new
trial or petition for relief.
2) The judgment is void for lack of jurisdiction.
The rationale for the restriction is to prevent the extraordinary
action from being used by a losing party to make a complete
farce of a duly promulgated decision that has long become final
and executory.
First Ground: EXTRINSIC FRAUD
Petition for relief under Rule 38 is a remedy against a final and
executory judgment kaya lang merong deadline – 6 months and
60 days. So after these periods lapse, wala na.
Sa petition for relief, apat yon eh: Fraud, accident, mistake and
excusable negligence. In annulment of judgment, wala na yung
accident, mistake and excusable negligence. But yung
EXTRINSIC FRAUD natira pa. That is the only one which can be
left behind under Rule 47.
Q: Now what is meant by extrinsic fraud ?
A: We already discussed this. Fraud, to be a ground for nullity
of a judgment, must be extrinsic – that fraud done by the
adverse party which prevented a party from having a trial or
from presenting his case fully.
Therefore, intrinsic fraud is not a ground for new trial. It is not a
ground for petition for relief. And it is not a ground for
annulment.
COSMIC LUMBER CORP. vs. CA – 256 SCRA 168 [1996]
FACTS: Cosmic Lumber owns a piece of land occupied by some
squatters. Now, Cosmic Lumber executed a board resolution for
a special power of attorney authorizing an attorney-in-fact to
initiate, institute and file in any court action for the ejectment of
the squatters from its property. Then the agent by virtue of the
power of attorney, filed a case to recover a portion of this
property from its occupants before the RTC.
While the case was going on, the agent (the attorney-in- fact)
entered into a compromise agreement with the squatters. In the
compromise agreement, the attorney-in-fact sold the property or
land to the squatter for only P26,000. And the compromise
agreement was approved by the court and it became final and
executory.
Now it was several years later that the Cosmic Lumber heard
about it. The Cosmic Lumber filed an action to annul the
judgment before the CA on the ground of extrinsic fraud.
The CA: The case will be dismissed because that is not one of
the grounds for annulment of judgment because the alleged
nullity of the compromise judgment, because petitioner’s
attorney-in-fact was not authorized to sell the property. That
does not amount to extrinsic fraud. That was fraud by your own
representative, it is not fraud by the other party. The one who
exercised fraud was your own attorney-in-fact, not the squatter.
So kaya nga that is not a ground. The CA dismissed the action.
So Cosmic Lumber went to the SC.
HELD: “The petition to annul the decision of the trial court in
civil case before the CA was proper. Emanating as it did from a
void compromise agreement, the trial court had no jurisdiction
to render a judgment based thereon.” So there is another
ground – lack of jurisdiction.
“The highly reprehensible conduct of attorney-in-fact in the civil
case constituted an extrinsic or collateral fraud by reason of
which the judgment rendered thereon should have been struck
down. Not all the legal semantics in the world can becloud the
unassailable fact that petitioner was deceived and betrayed by
its attorney-in-fact. The latter deliberately concealed from
petitioner, her principal, that a compromise agreement had
been forged with the end result that a portion of petitioner’s
property was sold literally for a song, for P26,000. Thus
completely kept unaware of its agent’s artifice, petitioner was
not accorded even a fighting chance to repudiate the settlement
so much so that the judgment based thereon became final and
executory.”
“For sure, the CA restricted the concept of fraudulent acts
within too narrow limits. Fraud may assume different shapes
and be committed in as many different ways and here lies the
danger of attempting to define fraud. For man in his ingenuity
and fertile
imagination will always contrive new schemes to fool the
unwary.”
So fraud by your attorney-in-fact is also considered as a ground
for annulment.
Second Ground: JUDGMENT IS VOID FOR LACK OF
JURISDICTION
Lack of jurisdiction
Lack of jurisdiction as a ground for annulment of judgment
refers to either lack of jurisdiction over the person of the
defending party or over the subject matter of the claim. Where
the court has jurisdiction over the defendant and over the
subject matter of the case, its decision will not be voided on the
ground of absence of jurisdiction (Republic vs. “G” Holdings GR
No. `141241 November 22, 2005). The petitioner must show not
a mere grave abuse of discretion but an absolute lack of
jurisdiction (Republic vs.”G” Holdings 475 SCRA 608). A claim
of grave abuse of discretion will support a petition for certiorari
under Rule 65 but it will not support an action for annulment of
a judgment.
In a petition for annulment of judgment, based on lack of
jurisdiction, petitioner must show an absolute lack of authority to
hear and decide the case. There would be no valid ground to
grant the petition for annulment where the error raised pertain
to the trial court’s exercise of jurisdiction, not the absence of
jurisdiction (Heirs of Maura So vs. Obliosca 542 SCRA 406).
If we follow jurisprudence, there is a third ground which is
implied: LACK OF DUE PROCESS. When there is lack of due
process there is also lack of jurisdiction.
Q: How do you attack a judgment which is void?
A: It depends:
a) when the judgment is null and void on its very face,
the judgment may be attacked:
1) DIRECTLY; or
2) COLLATERALLY;
b) when the nullity is not apparent on the face of the
judgment, the judgment can be attacked only be
DIRECTLY attacked.
Q: What is a COLLATERAL ATTACK?
A: Meaning, there is no need for me to file a case but I can invoke
its nullity anytime because a judgment which is void on its very
face can be attacked at anytime, in any manner anywhere.
EXAMPLE of Collateral attack: You are moving to execute a
judgment. I will oppose the execution on the ground that the
judgment is void. That is collateral attack. I’m just saying that
the judgment cannot be enforced because it is null and void.
But I never filed a direct action to declare its nullity. That can
be done if the judgment is void on its very face.
Q: What is a DIRECT ATTACK?
A: By direct attack means you must file an action to declare its
nullity. So there must be a case for its annulment.
Again, when the judgment is null and void on its face, (1) you
may file a direct action to annul it under Rule 47. Or, (2) it can
also be attacked collaterally, a direct attack is not necessary. A
collateral attack will suffice.
EXAMPLE: RTC decided a forcible entry. By simply reading the
decision, obviously the RTC has no jurisdiction. Therefore, I can
attack it directly by filing a case for its annulment under Rule
47. OR, I will not file a case under Rule 47 but I will attack it
collaterally. Meaning, bayaan ko lang. I will raise that issue
during execution. If you move for execution, I can oppose, “You
cannot execute because the RTC has no jurisdiction over the
case. Therefore the judgment is void.” So it is not necessary to
file a case to declare the decision as null and void. That is
collateral attack.
But if the judgment is not void on its face but the nullity is
intrinsic or nakatago – not obvious ba – the rule is, you must
file a direct action for its annulment which must be done before
the action is barred by laches or estoppel. So it is necessary to
file a case for annulment of judgment under Rule 47.
Well of course, certiorari under Rule 65 is also a ground for
attacking a judgement but the trouble is you are limited to 3
grounds: Lack of jurisdiction, excess of jurisdiction and grave
abuse of discretion. Walang extrinsic fraud. That is governed by
Rule 65 and not by Rule 47.
And under Rule 65, you can avail of certiorari only within 60
days. But if you want annulment, it could be longer under Rule
47. That is under section 3. That could be a big difference.
Moreover, what do you attack in certiorari? Normally,
interlocutory orders eh. But a final judgment can be attacked by
annulment under Rule 47.
Now, those remedies were summarized in the case of
BAYOG vs. NATINO – 258 SCRA 378 [1996]
HELD: It is a settled rule that a final and executory judgment
may be set aside in three (3) ways. To wit:
1) By petition for relief from judgment under Rule 38;
2) When the judgment is void for want of jurisdiction, by
direct attack, by certiorari, annulment of judgment or
by collateral attack; and
3) When the judgment was obtained by fraud and Rule
38 cannot be applied anymore.
So those are the summary of the remedies.
ISLAMIC DA’WAH COUNCIL vs. CA – 178 SCRA 178
ISSUE #1: Can a person, who is not a party to the judgment, file
an action for annulment of judgment?
HELD: A person who is not a part of the judgment may sue for
its annulment PROVIDED that he can prove [1] that the
judgment was obtained through fraud and collusion and [2] that
he would be adversely affected thereby.
ISSUE #2: Suppose the judgment had already been fully
executed and implemented, can you still file a case for
annulment of judgment?
HELD: YES. We will also annul the execution. If there is no
execution yet, the proper remedy normally is you file an action
for annulment and ask for the issuance of a writ of preliminary
injunction so that it will not be enforced. Pero kung na-enforced
na pwede pa man din ba.
SUMMARY: Possible remedies of defendant declared
DEFAULT:
1) Rule 9, Section 3 [b] – Motion to lift Order of Default,
there is still no judgment; ground: FAME;
2) Rule 37 – Motion for new trial, judgment not yet final;
Ground: FAME;
3) Rule 38 – Petition for relief within 60 days and 6
months, judgment is already final; ground: FAME;
4) Rule 41 – Appeal within 15 days; ground: Default
judgment is contrary to law or evidence;
5) Rule 47 – Annulment of judgment; Ground: Extrinsic
Fraud;
6) Rule 65 – Certiorari; ground: Lack or excess of
jurisdiction or grave abuse of discretion
Q: What is the period to file an action for annulment on the
ground of extrinsic fraud?
A: Section 3:
Sec. 3. Period for filing action. If based on
extrinsic fraud, the action must be filed
within four (4) years from its discovery;
and if based on lack of jurisdiction, before
it is
barred by laches or estoppel. (n)
This is based on decided cases. If your ground is extrinsic fraud,
the action is filed within four (4) years from its discovery. Now, if
it is based on lack of jurisdiction, before it is barred by laches or
estoppel. That is very elastic – laches or estoppel.
Although if you look at the strict law based on Article 1144 of
the New Civil Code, the prescriptive period really is 10 years for
any action on judgment. That is the strict law but it could be
barred earlier by laches or estoppel.
Now as to the contents of the petition, we have Section 4:
Sec. 4. Filing and contents of petition. The
action shall be commenced by filing a
verified petition alleging therein with
particularity the facts and the law relied
upon for annulment, as well as those
supporting the petitioner’s good and
substantial cause of action or defense, as
the case may be.
The petition shall be filed in seven (7)
clearly legible copies, together with
sufficient copies corresponding to the
number of respondents. A certified true
copy of the judgment or final order or
resolution shall be attached to the original
copy of the petition intended for the court
and indicated as such by the petitioner.
The petitioner shall also submit together
with the petition affidavits of witnesses or
documents supporting the cause of action
or defense and a sworn certification that
he has not theretofore commenced any
other action involving the same issues in
the Supreme Court, the Court of Appeals
or different divisions thereof, or any other
tribunal or agency; if there is such other
action or proceeding, he must state the
status of the same, and if he should
thereafter learn that a similar action or
proceeding has been filed or is pending
in before the Supreme Court, the Court of
Appeals, or different divisions thereof, or
any other tribunal or agency, he
undertakes to promptly inform the
aforesaid courts and other tribunal or
agency thereof
within five (5) days therefrom.(n)
Take note that yung mga affidavits of your witnesses or
documents supporting your cause of action must be attached
already. You correlate this with Rule 37, Section 2 on new trial
and Rule 38, Section 3 on petition for relief.
What does Rule 37, Section 2 and Rule 38, Section 3 say about
motion for new trial or petition for relief? There is also an
AFFIDAVIT OF MERITS showing the nature of the fraud,
accident and the meritorious cause of action or defense. So
more or less that principle also applies in Rule 47.
Sec. 5. Action by the court. Should the court
find no substantial merit in the petition,
the same may be dismissed outright with
specific reasons for such dismissal.
Should prima facie merit be found in the
petition, the same shall be given due
course and summons shall be served on
the
respondent. (n)
Under Section 5, the court may dismiss outright the petition if
there is no merit or no substantial merit. If there is, then the
same shall be given due course and summons shall be served
on the respondent.
Take note there will be SUMMONS here. Unlike in Rule 46,
walang summons yon. But here, there will be summons by the
CA. That is the difference between Rule 47 and Rule 46.
Sec. 6. Procedure. The procedure in
ordinary civil cases shall be observed.
Should a trial be necessary, the reception
of the evidence may be referred to a
member of the court or a
judge of a Regional Trial Court. (n)
Q: What happens if the judgment is annulled? Can the plaintiff
refile the case?
A: YES, because it is as if there was no judgment. Section 7:
Sec. 7. Effect of judgment. A judgment of
annulment shall set aside the questioned
judgment or final order or resolution and
render the same null and void, without
prejudice to the original action being
refiled in the proper court. However,
where the judgment or final order or
resolution is set aside on the ground of
extrinsic fraud, the court may on motion
order the trial court to try the case as if a
timely motion for new trial
had been granted therein. (n)
So if the judgment is set aside on the ground of extrinsic fraud,
the action can be re-filed. The court may, on motion, order the
trial court to try the case as if a timely motions for the trial had
been granted therein. That is similar to Rule 38, Section 6.
Remember when the court grants a petition for relief, the case
will be tried all over again as if a timely motion for new trial has
been filed.
Q: What happens if by the time you re-file the case the
prescriptive period has already lapsed?
A: As a general rule, while the action for annulment is pending,
the prescriptive period for filing is interrupted. That is Section 8:
Sec. 8. Suspension of prescriptive period. The
prescriptive period for the refiling of the
aforesaid original action shall be deemed
suspended from the filing of such original
action until the finality of the judgment of
annulment. However, the prescriptive
period shall not be suspended where the
extrinsic fraud is attributable to the
plaintiff in the
original action. (n)
Q: What happens if a judgment is annulled and it was earlier
executed?
A: Section 9:
Sec. 9. Relief available. The judgment of
annulment may include the award of
damages, attorney’s fees and other relief.
If the questioned judgment or final order
or resolution had already been executed,
the court may issue such orders of
restitution or other relief as justice and
equity may warrant under the
circumstances. (n)
Under Section 9, the court may issue order of restitution or
other reliefs as justice and equity may warrant. That is similar
to Rule 39, Section 5 – in case of execution pending appeal and
the appealed judgment is reversed, the court will now order
mutual restitution pursuant to Rule 39, Section 5.
Sec. 10. Annulment of judgments or final
orders of Municipal Trial Courts. An action to
annul a judgment or final order of a
Municipal Trial Court shall be filed in the
Regional Trial Court having jurisdiction
over the former. It shall be treated as an
ordinary civil action and sections 2, 3, 4,
7, 8 and 9 of this Rule shall be applicable
thereto. (n)
And the QUESTION is asked: “Meron bang action for annulment
of judgments of MTC?” Yaann!
Answer: YES. Kung merong annulment of judgment of the RTC,
by implication, meron din ang MTC. You cannot file it in the CA.
You file it in the RTC.
Annulment of judgment of the MTC will fall under the rule on
jurisdiction of the RTC – any action which does not belong to the
jurisdiction of any other courts (Section 19 [6], BP 129) or, an
action the subject matter of which is incapable of pecuniary
estimation (Section 19 [1], BP 129) That would be the authority.
Now it’s very clear, meron talaga. It is now stated categorically
there is an action for annulment of judgment also of the MTC. It
must be filed in the RTC having jurisdiction over the MTC. The
grounds are identical as those found in the previous section. So
this is an entirely new section.
Annulment of judgments of quasi-judicial bodies
In Macalalag vs. Ombudsman 424 SCRA 741, 745 the Court
ruled that Rule 47 of the 1997 Rules of Civil Procedure on
annulment of judgments or final orders and resolutions covers
annulment of the judgments of RTC by the CA.
The silence of BP 129 on the jurisdiction of the CA to annul
judgments or final orders and resolutions of quasi-judicial
bodies like the DARAB indicates its lack of such authority
(Springfield Development Corporation vs. RTC of Mis Or. GR
142628 Feb 6 2007). It is hence, submitted that a party
aggrieved who desires an annulment of a judgment or resolution
of quasi-judiciaL BODY ENUMERATED UNDER Rule 43 may
avail of a petition for review to the CA under said rule and not
an action to annul the judgment or resolution.
CERTIORARI (RULE 65)
Called a “supervisory or superintending writ,” this remedy is
availed of to annul or modify the proceedings of a tribunal,
board or officer exercising judicial or extrajudicial functions
which has acted without or in excess of jurisdiction, or with
grave abuse of discretion amounting to lack of jurisdiction. For
this petition to prosper, it is necessary to allege and show that
there is no more appeal, or any other plain, speedy, and
adequate remedy in the ordinary course of law.
As a rule, where appeal is available, certiorari cannot be availed
of unless it can be shown that appeal is not speedy, or
adequate. Hence, the basic question to be considered is: Does
the petitioner have the remedy of appeal or any other remedy? If
the answer is in the affirmative, certiorari is not available, as a
rule. However, even if appeal is available, if it is not adequate,
speedy or equally beneficial as certiorari, a petition for certiorari
may be availed of
(Landbank vs. CA 409 SCRA 455)
The task of the court in a certiorari proceeding is to determine
whether the lower court committed grave abuse of discretion
(Marcopper Mining vs. Solidbank Corporation, GR 134049 June
17, 2004). It is a remedy narrow in scope. It is not a general
utility tool in the legal workshop. Its function is to raise only
questions of jurisdiction and no other. It cannot be used for any
other purpose (Landbank vs. CA, supra). Do not file a certiorari
if your purpose is to raise a factual issue or to ask for a re-
evaluation of the facts and the evidence (PILTEL vs. NTC 410
SCRA 82).
The sole object of the writ is to correct errors of jurisdiction or
grave abuse of discretion. The phrase “grave abuse of discretion”
has a precise meaning in law, denoting abuse of discretion “too
patent and gross as to amount to an evasion of a positive duty,
or a virtual refusal to perform the duty enjoined or act in
contemplation of law, or where the power is exercised in an
arbitrary and despotic manner by reason of passion and
personal hostility.” It does not encompass an error of law. Nor
does it include a mistake in the appreciation of the contending
parties’ respective evidence or the evaluation of their relative
weight.
The Court cannot be tasked to go over the proofs presented by
the parties and analyze, assess and weigh them all over again to
ascertain if the trial court or quasi-judicial agency and the
appellate court were correct in according superior credit to this
or that piece of evidence of one party or the other. The sole office
of a writ of certiorari is the correction of errors of jurisdiction
including the commission of grave abuse of discretion
amounting to lack of jurisdiction, and does not include the
review of factual findings
based thereon (Remy’s Freight Service GR 14167 June 8, 2006)
The petition shall be filed not later than 60 days from notice of
the judgment, order or resolution. In case a motion for
reconsideration was filed, the 60-day period starts not from the
notice of judgment but from notice of the denial of the motion
for reconsideration (Docena vs. Lapser 355 SCRA 658).
COLLATERAL ATTACK OF A JUDGMENT
Distinction between a direct and collateral attack
A direct attack of a judgment is made through an action or
proceeding the main object of which is to annul, set aside or
enjoin the enforcement of such judgment if not yet carried into
effect; or if the property has been disposed of, the aggrieved
party may sue for recovery.
A collateral attack is made when, in another action to obtain
a different relief, an attack on the judgment is made as an
incident in said action. This is proper only when the judgment,
on its face, is null and void, as where it is patent that the court
which rendered said judgment has no jurisdiction (Co vs. CA
196 SCRA 705)
Examples: A petition for certiorari under Rule 65 is a direct
attack. It is filed primarily to have an order annulled. An action
for annulment of a judgment is likewise a direct attack on a
judgment. A motion to dismiss a complaint for collection of sum
of money filed by a corporation against the defendant on the
ground that the plaintiff has no legal capacity to sue is a
collateral attack on the corporation. A motion to dismiss is
incidental to the main action for a sum of money. It is not filed
as an action intended to attack the legal existence of the
plaintiff (Macabingkil vs. PHHC 72 SCRA 326; Co vs. CA 196
SCRA 705).
Rule 48
PRELIMINARY CONFERENCE
Preliminary Conference is like a pre-trial in the CA. Iba lang ang
tawag but it is really a pre-trial because there are cases which
fall under the original jurisdiction of the CA, like annulment of
judgment of the RTC. Its purpose is the same as in Rule 18 on
pretrial.
Section 1. Preliminary conference. At any
time during the pendency of a case, the
court may call the parties and their
counsel to a preliminary conference:
(a) To consider the possibility of an amicable
settlement, except when the case is not
allowed by law to be compromised;
(b) To define, simplify and clarify the issues for
determination;
(c) To formulate stipulations of facts and
admissions of documentary exhibits, limit
the number of witnesses to be presented in
cases falling within the original jurisdiction
of the court, or those within its appellate
jurisdiction where a motion for new trial is
granted on the ground of newly discovered
evidence; and
(d) To take up such other matters which may
aid the court in the prompt disposition of
the
case. (n)
Sec. 2. Record of the conference. The
proceedings at such conference shall be
recorded and, upon the conclusion
thereof, a resolution shall be issued
embodying all the actions taken therein,
the stipulations and
admissions made, and the issues defined. (n)
Sec. 3. Binding effect of the results of the
conference. Subject to such modifications
which may be made to prevent manifest
injustice, the resolution in the preceding
section shall control the subsequent
proceedings in the case unless, within five
(5) days from notice thereof, any party
shall satisfactorily show valid cause why
the same should not be followed. (n)

Rule 49
ORAL ARGUMENTS
The CA may or may not require oral argument. Just read
that.
Section 1. When allowed. At its own
instance or upon motion of a party, the
court may hear the parties in oral
argument on the merits of a case, or on
any material incident in connection
therewith. (n)
The oral argument shall be limited to such
matters as the court may specify in its order
or resolution. (1a, R48)
Sec. 2. Conduct of oral argument. Unless
authorized by the court, only one counsel
may argue for a party. The duration
allowed for each party, the sequence of the
argumentation, and all other related
matters
shall be as directed by the court. (n)
Sec. 3. No hearing or oral argument for
motions. Motions shall not be set for
hearing and, unless the court otherwise
directs, no hearing or oral argument shall
be allowed in support thereof. The adverse
party may file objections to the motion
within five (5) days from service, upon the
expiration of which such motion shall be
deemed submitted for
resolution. (2a, R49)
How are cases decided in the CA? Normally, you file your
petition; submit argument in writing; then you wait for the
decision. But sometimes, the CA is provoked by legal issues. So
the CA would decide to listen to oral arguments of the parties,
especially when the case is controversial.
Under Section 3, one difference between motions filed in the
RTC and in the CA is that:
a) in the RTC, there must be notice of hearing (Rule 15)
attached to the motion, otherwise it will be denied;
b) in the CA, there is no need for notice of hearing to be
attached to the motion.
Rule 50
DISMISSAL OF APPEAL
Grounds for dismissal of appeal in the CA. Take note that under
Section 1, an appeal may be dismissed by the CA on its own
(motu propio) or upon motion of the appellee. And there are
nine (9) grounds for dismissal of appeal under Section 1:
Section 1. Grounds for dismissal of appeal.
An appeal may be dismissed by the Court
of Appeals, on its own motion or on that of
the appellee, on the following grounds:
(a) Failure of the record on appeal to show on
its face that the appeal was taken within
the period fixed by these Rules;
(b) Failure to file the notice of appeal or the
record on appeal within the period
prescribed by these Rules;
(c) Failure of the appellant to pay the docket
and other lawful fees as provided in
section 5 of Rule 40 and section 4 of Rule
41;
(d) Unauthorized alterations, omissions or
additions in the approved record on appeal
as provided in section 4 of Rule 44;
(e) Failure of the appellant to serve and file
the required number of copies of his brief
or memorandum within the time provided
by these Rules;
(f) Absence of specific assignment of errors in
the appellant’s brief, or of page references
to the record as required in section 13,
paragraphs (a), (c), (d) and (f) of Rule 44;
(g) Failure of the appellant to take the
necessary steps for the correction or
completion of the record within the time
limited by the court in its order;
(h) Failure of the appellant to appear at the
preliminary conference under Rule 48 or
to comply with orders, circulars, or
directives of the court without justifiable
cause; and
(i) The fact that the order or judgment
appealed from is not appealable. (1a; En
Banc Resolution, Feb. 17, 1998)
First Ground: (a) FAILURE OF THE RECORD ON APPEAL TO
SHOW
ON ITS FACE THAT THE APPEAL WAS TAKEN WITHIN THE
PERIOD
 FIXED BY THESE RULES;
So this only applies in cases where a record on appeal is
required. Failure to show on its face that the appeal was
perfected on time – meaning, the appeal might have been
perfected on time but by reading the record on appeals, you will
not see it.
Normally, that happens when the party did not state the exact
date when he received the decision. He may just state the date
of the decision without stating the date of receipt. With that, the
court will presume that you received it on the date of the
decision. It might be beyond the period to appeal. So on its
face, there is no showing whether the appeal was within the 30
day period or not.
Third Ground: (c) FAILURE OF THE APPELLANT TO PAY THE
DOCKET AND OTHER LAWFUL FEES AS PROVIDED IN
SECTION 5 OF
RULE 40 AND SECTION 4 OF RULE 41;
Section 5 of Rule 40 is about filing of docket fees if you appeal
from the MTC to the RTC. Section 4 of Rule 41 refers to filing of
docket fees when the appeal is from RTC to CA.
Q: When do you pay the docket fee?
A: Within the 15-day period, you already pay it in the RTC clerk
of court. Unlike before you pay it with the CA later. That is why
as I said, failure to pay the docket fee in the RTC is a ground for
dismissal of the appeal because of this.

The first ground is called the MATERIAL DATA RULE – that the
Q: But how about failure to pay the appeal fee in the MTC prior
record on appeal must show on its face that the appeal was
to transmittal to the RTC? Is it a ground for dismissal by the
taken on time.
CA?

In the 1973 case of BERKENKOTTER VS. CA, this ground was

A: To my mind NO because why will the CA dismiss it when the
supposed to be abolished already where the SC said that from
appeal is in the RTC? Bakit ang CA mag-dismiss, wala man ang
now on, We will no longer follow the material data rule. Meaning
kaso sa kanila? The CA has nothing to do with the appeal. It is
this is abandoned.
supposed to be in the RTC, bakit ang CA ang mag-dismiss? In
other words, there is something wrong with this amendment.
So, I wonder bakit binalik ito sa 1997 Rules because since (referring to
1973, the SC has already refused to apply this ground. So when “Section 5 of Rule 40”)
they drafted the Rules, dapat tinanggal na yon. Bakit nandito
na naman? They might have forgotten that it has been
But if the appeal is from the RTC to the CA, you must you must
abandoned by jurisprudence, unless the intention is to return
pay the docket fees because it is a specific ground for dismissal
it.
for the dismissal under Rule 50.

Second Ground: (b) FAILURE TO FILE THE NOTICE OF

Fourth Ground: (d) UNAUTHORIZED ALTERATIONS,
APPEAL OR
OMISSIONS OR
ADDITIONS IN THE APPROVED RECORD ON APPEAL AS
THE RECORD ON APPEAL WITHIN THE PERIOD
PROVIDED
PRESCRIBED BY

IN SECTION 4 OF RULE 44;

THESE RULES;

That’s only when there is a record on appeal. When the record

Take note that under paragraph [a], the appeal was filed on time
on appeal is approved, you have to reproduce it and you are not
but the record on appeal does not show that it was filed on time.
allowed to make any alteration, revision or addition.

But here in paragraph [b], the appeal is really out of time. Take
note that you can raise this ground in the trial court. The trial
court is also authorized to dismiss an appeal on this ground
(Rule 41, Section 13). But assuming that you failed to raise it
in the trial court, you can raise it in the CA.
Q: Are you under estoppel for not raising it earlier in the RTC?
Meaning, why did you not bring it out earlier, bakit hinintay pa
sa CA?
A: There is no estoppel here because actually this is a
jurisdictional challenge. When the notice of appeal is filed out of
time or beyond 15 days, actually the judgment of the RTC has
already become final and executory. So you are now challenging
the jurisdiction of the CA. Meaning, you are trying to say that
the CA has no jurisdiction to review on appeal a judgment of the
RTC which has already been final and executory.
Q: Does the CA have the power to review and reverse an RTC
judgment which is already final and executory?
A: No more. The judgment which is already final cannot be
changed by the CA. Meaning, the CA has no jurisdiction to
entertain the appeal in that case. So in effect, it is a
jurisdictional challenge which can be raised even in the CA even
if not raised earlier in the RTC.
Firth Ground: (e) FAILURE OF THE APPELLANT TO SERVE
AND FILE THE REQUIRED NUMBER OF COPIES OF HIS
BRIEF OR
MEMORANDUM WITHIN THE TIME PROVIDED BY THESE
RULES;
Failure of the appellant to serve and file the required number of
copies of his brief. So, failure to file the appellant’s brief is a
ground for dismissal of the appeal.
Q: Now, suppose it is the appellee who did not file any brief,
what will happen?
A: You do not dismiss the appeal but the case will be submitted
for decision without appellee’s brief. The CA will make a
resolution that the case was submitted without the appellee’s
brief.
Q: Does it mean to say that talo na ‘yung appellee?
A: NO. There are many cases I’ve seen where the appellee did
not file any brief – Talo man gihapon ang appellant because
anyway the appellant’s brief has no merit. But normally in cases
na delikado, you better file an appellee’s brief. You owe that to
your client. Just imagine, lahat ng arguments dun hindi
sagutin. That’s very dangerous!
Sixth Ground: (f) ABSENCE OF SPECIFIC ASSIGNMENT OF
ERRORS
IN THE APPELLANT’S BRIEF, OR OF PAGE REFERENCES TO
THE
RECORD AS REQUIRED IN SECTION 13, PARAGRAPHS (A),
(C), (D)
AND (F) OF RULE 44;
Well, you may file an appellant’s brief, eh wala namang page
references, wala namang assignment of errors. My God! What
kind of brief is that! (YC Bikini Briefs?) Very sloppy! You file a
brief without telling the CA kung anong mali and then you
expect the CA to look for the errors. My golly! Do not expect the
CA to do that. Meron dapat citations – e.g. “See Exhibit ‘A’”, “See
transcript…” Merong reference ba! like kung anong page yan.
Now if you file a brief without footnotes, without citing the law,
without citing the transcript, without citing the exhibit, that
would
be dismissed. That’s what happened in the 1995 case of
DEL ROSARIO vs. CA – 241 SCRA 553 [1995]
FACTS: The CA dismissed the case simply because the
appellant’s brief was sloppily written – no reference to exhibit,
no reference to page, no reference to anything. It was dismissed!
The appellant went to the SC pleading liberality.
HELD: “Petitioner’s plea for liberality in applying these rules in
preparing Appellant’s Brief does not deserve any sympathy.
Long ingrained in our jurisprudence is the rule that the right to
appeal is a statutory right and a party who seeks to avail of the
right must faithfully comply with the rules. Deviations from the
rules cannot be tolerated. The rationale for this strict attitude is
not difficult to appreciate. These rules are designed to facilitate
the orderly disposition of appealed cases. In an age where
courts are bedeviled by clogged dockets, these rules need to be
followed by appellants with greater fidelity. Their observance
cannot be left to the whims and caprices of appellants.”
Seventh Ground: (g) FAILURE OF THE APPELLANT TO
TAKE THE
NECESSARY STEPS FOR THE CORRECTION OR
COMPLETION OF THE
RECORD WITHIN THE TIME LIMITED BY THE COURT IN ITS
ORDER;
Sometimes yung record mo kulang-kulang ba. And the party
may be directed to work for the completion. If you fail to
complete the record, your appeal will be dismissed.
Please connect this with two previous provisions talking about
completion of the record in an appealed case. I’m referring to
Rule 41, Section 10 and Rule 44, Sections 5 to 6 because these
provisions talk also of completion of record. (please refer to your
codals)
Rule 41, Sec. 10. Duty of clerk of court of the
lower court upon perfection of appeal. Within
thirty (30) days after perfection of all the
appeals in accordance with the preceding
section, it shall be the duty of the clerk of
court of the lower court:
(a) To verify the correctness of the original
record or the record on appeal, as the case
may be, and to make a certification of its
correctness;
(b) To verify the completeness of the records
that will be transmitted to the appellate
court;
(c) If found to be incomplete, to take such
measures as may be required to complete
the records, availing of the authority that
he or
the court may exercise for this purpose; and
(d) To transmit the records to the appellate
court.
If the efforts to complete the records fail,
he shall indicate in his letter of
transmittal the exhibits or transcripts not
included in the records being transmitted
to the appellate court, the reasons for
their non-transmittal, and the steps taken
or that could be taken to have them
available.
The clerk of court shall furnish the parties
with copies of his letter of transmittal of
the records to the appellate court.
Rule 44, Sec. 5. Completion of record. Where
the record of the docketed case is
incomplete, the clerk of court of the Court
of Appeals shall so inform said court and
recommend to it measures necessary to
complete the record. It shall be the duty
of said court to take appropriate action
towards the completion of the record
within the shortest possible time.
Rule 44, Sec. 6. Dispensing with complete
record. Where the completion of the record
could not be accomplished within a
sufficient period allotted for said purpose
due to insuperable or extremely difficult
causes, the court, on its own motion or on
motion of any of the parties, may declare
that the record and its accompanying
transcripts and exhibits so far available
are sufficient to decide the issues raised in
the appeal, and shall issue an order
explaining the reasons for such
declaration.
Eight Ground: (h) FAILURE OF THE APPELLANT TO APPEAR
AT THE
PRELIMINARY CONFERENCE UNDER RULE 48 OR TO
COMPLY WITH
ORDERS, CIRCULARS, OR DIRECTIVES OF THE COURT
WITHOUT
JUSTIFIABLE CAUSE; AND
That’s a new ground – failure to appear on the preliminary
conference; failure to comply with orders, circulars, directives of
the court without justifiable cause. That is very broad. That’s a
new one not found in the old law.
Ninth Ground: (i) THE FACT THAT THE ORDER OR
JUDGMENT APPEALED FROM IS NOT APPEALABLE.
The fact that the judgment or order appealed from is not
appealable. Interlocutory!
Q: What are the judgments or orders which are not appealable?
A: Your reference is Rule 41, Section 1:
Rule 40, Section 1. Subject of appeal.
xxxxxx
NO APPEAL may be taken from:
(a) An order denying a motion for new trial or
reconsideration;
(b) An order denying a petition for relief or any
similar motion seeking relief from
judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing an
appeal;
(e) An order denying a motion to set aside a
judgment by consent, confession or
compromise on the ground of fraud, mistake or
duress, or any other ground vitiating
consent;
(f) An order of execution;
(g) A judgment or final order for or against one or
more of several parties or in separate claims,
counterclaims, cross-claims and thirdparty
complaints, while the main case is pending,
unless the court allows an appeal therefrom;
and
(h) An order dismissing an action without
prejudice.
xxxxxx
So, if you appeal on any one of them, the other party can file a
motion to dismiss on the ground that it is not appealable.
Now, there is one ground for dismissal under the old rule na
nawala naman. Yun bang “failure to prosecute the appeal”, when
the records are not elevated to the CA the appeal can be
dismissed. Meaning, you have to follow up the clerk of court.
Nawala yun eh. That ground seems to have been abandoned. I
think the attitude there is let us not punish the appellant for
the fault of the clerk of court.
Q: Is a default judgment appealable?
A: YES. It is appealable because it is a final judgment and not
merely interlocutory. Although under the ‘64 Rules, there is a
direct provision that a default judgment is appealable. Now, that
provision has disappeared. But even if it is not mentioned now,
default judgment is now covered by Rule 41 on final judgments.
Sec. 2. Dismissal of improper appeal to the
Court of Appeals. An appeal under Rule 41
taken from the Regional Trial Court to the
Court of Appeals raising only questions of
law shall be dismissed, issues purely of law
not being reviewable by said court.
Similarly, an appeal by notice of appeal
instead of by petition for review from the
appellate judgment of a Regional Trial
Court shall be
dismissed. (n)
An appeal erroneously taken to the Court
of Appeals shall not be transferred to the
appropriate court but shall be dismissed
outright. (3a)
Meaning, you must appeal to the right court and you must use
the proper mode of appeal. This incorporates in the Rules the
resolutions of the SC in the 1990 En Banc Resolution in
MORILLO vs. CONSUL (not found in the SCRA) and also
incorporates the provisions of Circular 2-90 dated March 9.
1990.
Prior to this under the 1964 Rules, the rule is if there is wrong
appeal like pure questions of law to the CA, the CA should not
dismiss the appeal but elevate it to the SC. That rule has long
been abandoned. It was abandoned in the case of MORILLO and
in Circular 2-90. Now, it is here. Kung question of law you
better appeal to the SC. If you appeal to the CA, the CA will
dismiss it.
MORILLO vs. CONSUL
HELD: “There is no longer any justification for allowing
transfers of erroneous appeals from one court to the other,
much less for tolerating continued ignorance of the law on
appeals.”
Take note that this refers to appeal under Rule 41 from RTC.
This does not apply when the appeal to the CA is from a quasi-
judicial body. Appeal from a quasi-judicial body on a pure
question of law should be to the CA, never to the SC. You
compare this with Rule 42, Section 2:
Rule 42, Section 2. Form and contents.-
The petition shall be filed in seven (7)
legible copies, with the original copy
intended for the court being indicated as
such by the petitioner, and shall:
x x x (c) set forth
concisely a statement of the matters
involved, the issues raised, the
specification of errors of fact or law, or
both, allegedly committed by the RTC and
the reasons or arguments relied upon for
the allowance of the appeal.
xxx
“Errors of fact or law, or both.” This refers to Petition for Review
from the RTC to the CA.
Q: What happens if an appeal is already taken to the CA?
A: It shall be dismissed outright. Under the ’64 Rules, the CA
will pass it on to the SC. But the liberal policy has now been
changed.
Aaron [Cruz] asked a question (during the 1998 Review Class)
Dean’s ANSWER: Yes, there is a decided case. In the meantime,
you also lost the right to correct the error. Lumampas na eh!.
Kaya it would be dismissed. Hindi naman sinasabi na the
appellant will be directed to appeal properly. In other words, it
will be dismissed. Meaning, that is the end. That is the penalty
for erroneous appeal. Kaya nga according to MORILLO which
became the basis of this, there is no longer any justification for
allowing transfers of erroneous appeals from one court to the
other, much less for tolerating continued ignorance of the law
on appeals. Kaya nga before, very lenient pag mali under the
1964 Rules. But now in Section 2 of Rule 50, wala na – i-
dismiss na.
 WITHDRAWAL OF APPEAL
Sec. 3. Withdrawal of appeal. An appeal may
be withdrawn as of right at any time
before the filing of the appellee’s brief.
Thereafter, the withdrawal may be allowed
in the discretion of the court. (4a)
Q: Now, can you withdraw the appeal in the RTC level?
A: YES, prior to the transmittal of the original record or the
record on appeal, the court may allow withdrawal of the appeal.
(Section
9, Rule 41)
Q: Where will you file the motion to withdraw?
A: In the RTC if the records are still in the RTC. If the records of
appeal is already in the CA, you file the motion to the CA at
anytime before the filing of the appellee’s brief you can withdraw
it as a matter of right. When there is already an appellee’s brief,
it can be allowed in the discretion of the Court (Section 3). That
is similar to the Rule in Rule 17, Section 1:
Rule 17, Section 1. Dismissal upon notice by
plaintiff. A complaint may be dismissed by
the plaintiff by filing a notice of dismissal
at any time before service of the answer or
of a motion for summary judgment. Upon
such notice being filed, the court shall
issue an order confirming the dismissal.
Unless otherwise stated in the notice, the
dismissal is without prejudice, except that
a notice operates as an adjudication upon
the merits when filed by a plaintiff who
has once dismissed in a competent court
an action
based on or including the same claim. (1a)
Q: Can you withdraw a complaint if you file a complaint in the
lower court?
A: YES, as a matter of right for as long as there is still no
answer filed. But when the defendant has filed an answer,
dismissal of the complaint is already discretionary upon the
court. So it is the same!
Rule 51
JUDGMENT
You already know that the Court of Appeals operates by
division. There are more than 50 justices there. Every division is
composed of 3. The 3 must be unanimous. In case there is no
unanimity, there should be a special division of 5 to hear the
case all over again and the majority rules. Although from what I
gathered sa CA, this is a farce . Actually, they do not discuss it,
they will just give it to the ponente. Tapos sabihin mo ‘concur.’
Bihira lang talaga ang nagaparticipate unless siguro malakas ka
sa isang justice and then magdissent para magkaroon ng
division of 5. That is not really the intention of the of the law.
Let’s go back to what we were saying before under Rule 36.
Every decision or resolution of a court shall clearly and
distinctly state the facts and the law on which it is based. If a
decision does not state its basis, it is a SIN PERJUICIO
judgment. That is not a valid judgment. The requirement
applies to all courts whether MTC, RTC, or CA. This is
emphasized again in Section 5:
Sec. 5. Form of decision. - Every decision or
final resolution of the court in appealed
cases shall clearly and distinctly state the
findings of fact and the conclusions of law
on which it is based, which may be
contained in the decision or final
resolution itself, or adopted from those set
forth in the decision, order, or resolution
appealed from. (Sec. 40, BP Blg.
129) (n)
The CA must state its findings and conclusions or according to
Section 5 it may simply adopt the findings and conclusions set
forth in the decision or order appealed from. If the CA is going to
affirm the judgment of the RTC, it may simply copy or adopt the
findings and conclusions of the RTC. It is called a
“MEMORANDUM DECISION”.
If you will look at Section 5, it states that the provision is taken
from Section 40, BP 129. It is taken from the Judiciary Law.
Is this provision not an invitation to laziness on the part of the
CA justices? If the CA will affirm the judgment of the RTC, the
work is easier because it may simply adopt on its own the
findings of the RTC. If the CA would reverse the decision, the job
would be more difficult, because it would write an entirely new
decision to rebut or dispute the findings of the RTC. This is why
when this provision came out in the Judiciary Law, there was a
sort of fear that this might be the cause of laziness.
The SC, well aware of that danger, clarifies in one case that
memorandum decisions are not allowed in all cases. The CA is
only allowed to render a memorandum decision in simple cases
especially when the appeal is dilatory and there is nothing
wrong in the appealed decision. But if the case is complicated or
complex, even if CA would affirm the decision, it cannot simply
copy the work of the RTC. It should write its own decision. The
limitation or guidelines was issued by the SC precisely to avoid
the danger of
laziness on the part of CA justices. The SC said in the case of
FRANCISCO vs. PERMSKUL – 173 SCRA 324
HELD: “The Court finds it necessary to emphasize that the
memorandum decision should be sparingly used lest it become
an addictive excuse for judicial sloth. It is an additional
condition for its validity that this kind of decision may be
resorted to only in cases where the facts are in the main
accepted by both parties or easily determinable by the judge
and there are no doctrinal complications involved that will
require an extended discussion of the laws involved. The
memorandum decision may be employed in simple litigations
only, such as ordinary collection cases, where the appeal is
obviously groundless and deserves no more than the time
needed to dismiss it.”
Q: When is a case deemed submitted for judgment?
A: Section 1 of Rule 51:
Sec. 1. When case deemed submitted for
judgment. - A case shall be deemed
submitted for judgment:
A. In Ordinary appeals. -
1) Where no hearing on the merits of the
main case is held, upon the filing of the
last pleading, brief, or memorandum
required by the Rules or by the court itself,
or the expiration of the period for its
filing.
2)Where such a hearing is held, upon its
termination or upon the filing of the last
pleading or memorandum as may be
required or permitted to be filed by the
court, or the expiration of the period for
its filing.
B. In original actions and petitions for review.
1) Where no comment is filed, upon the expiration
of the period to comment.
2)Where no hearing is held, upon the filing
of the last pleading required or permitted
to be filed by the court, or the expiration
of the period for its filing.
3)Where a hearing on the merits of the
main case is held, upon its termination or
upon the filing of the last pleading or
memorandum as may be required or
permitted to be filed by the court, or the
expiration of the period for
its filing. (n)
Sec. 2. By whom rendered. - The judgment
shall be rendered by the members of the
court who participated in the deliberation
on the merits of the case before its
assignment to a member for the writing of
the decision.
(n)
Sec. 3. Quorum and voting in the court. - The
participation of all three Justices of a
division shall be necessary at the
deliberation and the unanimous vote of the
three Justices shall be required for the
pronouncement of a judgment or final
resolution. If the three Justices do not
reach a unanimous vote, the clerk shall
enter the votes of the dissenting Justices
in the record. Thereafter, the Chairman of
the division shall refer the case, together
with the minutes of the deliberation, to
the Presiding Justice who shall designate
two Justices chosen by raffle from among
all the other members of the court to sit
temporarily with them, forming a special
division of five Justices. The participation
of all the five members of the special
division shall be necessary for the
deliberation required in section 2 of this
Rule and the concurrence of a majority of
such division shall be required for the
pronouncement of a judgment or final
resolution. (2a)
Sec. 4. Disposition of a case. - The Court of Appeals,
in the exercise of its appellate jurisdiction, may
affirm, reverse, or modify the judgment or final
order appealed from, and may direct a new trial or
further proceedings to be had. (3a)
Sec. 5. Form of decision. - Every decision or final
resolution of the court in appealed cases shall
clearly and distinctly state the findings of fact and
the conclusions of law on which it is based, which
may be contained in the decision or final
resolution itself, or adopted from those set forth in
the decision, order, or resolution appealed from.
(Sec. 40, BP Blg.
129) (n)
Sec. 6. Harmless error. - No error in either the
admission or the exclusion of evidence and no
error or defect in any ruling or order or in anything
done or omitted by the trial court or by any of the
parties is ground for granting a new trial or for
setting aside, modifying, or otherwise disturbing a
judgment or order, unless refusal to take such
action appears to the court inconsistent with
substantial justice. The court at every stage of the
proceeding must disregard any error or defect
which does not affect the substantial rights of the
parties. (5a)
Sec. 7. Judgment where there are several parties. - In
all action or proceedings, an appealed judgment
may be affirmed as to some of the appellants, and
reversed as to others, and the case shall thereafter
be proceeded with, so far as necessary, as if
separate actions had been begun and prosecuted;
and execution of the judgment of affirmance may
be had accordingly, and costs may be adjudged in
such cases, as the court
shall deem proper. (6)
Let’s go to Section 7.
Q: When there are 2 or more plaintiffs or 2 or more defendants
in the cases appealed, is it possible that the CA will render
decision for one plaintiff but against the other plaintiffs, or in
favor of one defendant and against the other?
A: YES. It is possible that one plaintiff will win, other plaintiffs
will lose especially when the facts are not identical. This is also
true in cases of 2 or more defendants when each one interposes
separate defenses. The defense of one may be true, others may
be false. It is possible that one defendant will win and other
defendants will lose.
Q: Suppose there are 2 defendants in a case. All of them lost.
Defendant A appealed. Defendant B did not appeal. On appeal,
defendant A won. Will the appeal of A benefit B who did not
appeal?
A: As a GENERAL RULE: No, the appeal would only benefit the
appealing defendant. The judgment becomes final to those who
did not appeal even if it is wrong.
EXCEPTION: When the LIABILITY of the 2 parties is so
INTERTWINED that it would be absurd that one of them will win
and the other will lose. Thus, the appeal by the appealing party
benefits his co-party who did not appeal. This principle was laid
down in some cases.
Among them is the case of
UNIVERSAL MOTORS CORP. vs. CA - 205 SCRA 428 [1992]
HELD: “It is erroneous to rule that the decision of the trial court
could be reversed as to the appealing private respondent and
continue in force against the other private respondents. The
latter could not remain bound after the former had been
released; although the other private respondents had not joined
in the appeal, the decision rendered by the respondent court
inured to their benefit. When the obligation of the other solidary
debtors is so dependent on that of their co-solidary debtor, the
release of the one who appealed, provided it be not on grounds
personal to such appealing private respondent, operates as well
as to the others who did not appeal. It is for this reason, that a
decision or judgment in favor of the private respondent who
appealed can be invoked as res judicata by the other private
respondents.” So, their liabilities are so intertwined.
EXAMPLE: Mayakin Skywalker and Darth Mort borrowed
money from Qui Gon Jet. They bound themselves jointly and
severally to pay the loan. There is only one promissory note, one
loan and both Mayakin and Darth Mort signed. Their common
defense is payment. But the trial court ruled in favor of the
plaintiff (Qui Gon Jet) and ordered Mayakin and Darth Mort to
pay. Mayakin appealed but Darth Mort did not. On appeal, CA
decided in favor of Mayakin saying, “Wala nang utang si
Mayakin ba dahil bayad na!” How about Darth Mort? Darth
Mort is also released.
This principle is reiterated in the case of
CAYABA vs. COURT OF APPEALS – 219 SCRA 571 [1993]
HELD: “A reversal of a judgment on appeal is binding on the
parties to the suit but does not inure to the benefit of parties
who did not join in the appeal (as a general rule). The
recognized exception is when their rights and liabilities and
those of the parties appealing are so interwoven and dependent
so as to be inseparable, in which case a reversal as to one
operates as a reversal to all.”
The rule is so similar in Criminal Procedure. When the appeal of
one accused benefits his co-accused who did not appeal
especially when the defense of such appealing accused is
applicable to him.
Sec. 8. Questions that may be decided. - No error
which does not affect the jurisdiction over the
subject matter or the validity of the judgment
appealed from or the proceedings therein will
be considered unless stated in the assignment
of errors, or closely related to or dependent on
an assigned error and properly argued in the
brief, save as the court may pass upon plain
errors and
clerical errors. (7a)
Q: Can the CA decide an issue which was not raised by the
parties? Can the CA correct the error which was never assigned
by the other party?
A: GENERAL RULE: Only errors which are stated in the
appellant’s brief should be considered. If the error is not
assigned, that cannot be corrected. This is just an extension of
the rule that objections and defenses not pleaded are deemed
waived.
EXCEPTION: The following matters can be corrected or the
court can take cognizance even if the parties did not raise them:
1) Jurisdiction over the subject matter of the case;
2) Plain errors; 3) Clerical Errors.
4) Errors which are not assigned but closely related to or
dependent on an assigned error.
The fourth exception is taken from decided cases. According to
the SC, even if you will not mention a mistake committed by the
trial court if such mistake is related to the mistake mentioned,
it can be corrected. In the case of
ABEJARON vs. CA – 208 SCRA 899 [1992]
HELD: An unassigned error closely related to the error properly
assigned, or upon which the determination of the question
raised by the error properly assigned is dependent, will be
considered by the appellate court notwithstanding the failure to
assign it as error.
While an assignment of error which is required by law or rule of
court has been held essential to appellate review, and only those
assigned will be considered, there are a number of cases which
appear to accord to the appellate court a broad discretionary
power to waive this lack of proper assignment of errors and
consider errors not assigned.
The same principle was reiterated in the 1995 case of
CASA FILIPINO ROYALTY CORP. vs. OFFICE OF THE
PRESIDENT – 241 SCRA 165
HELD: “While the rule is that no error which does not affect
jurisdiction will be considered unless stated in the assignment
or errors, the trend in modern-day procedure is to accord the
courts broad discretionary power such that the appellate court
may consider matters bearing on the issues submitted for
resolution
which the parties failed to raise or which the lower court
ignored.”
Let us look at the second exception – plain errors.
What is a plain error? Because a plain error can be corrected by
the appellate court even if not asked by the parties, plain man?
If you will ask me, any plain error is yung talagang obvious
mistake – one which is apparent to the eye.
Now, suppose the trial court made an error in applying a law or
in interpreting a law. But it was not attacked by the losing party
and it was not corrected on appeal. Is it a plain error? It would
seem no and yet that is what happened in the 1993 case of
SANTOS vs. CA (221 SCRA 42).
But before we discuss the case of Santos, we have to know the
basics. There are two principles here to remember.
The appellant is the one who appeals and it is he who will file
the appellant’s brief and then he will make the assignment of
errors. The appellee will refute the appellant’s assignment of
errors which were committed by the trial court.
Q: Can the appellee impute errors or make assignment of
errors?
A: The general rule is NO. If you are an appellee, you are not
appealing and thus you are accepting the decision. So if you
think the decision is in your favor pero mali pa rin, you must
also appeal.
So an appellee is not allowed to assign errors committed by the
trial court except if the purpose of the assignment of errors is to
sustain the decision on another ground. Because sometimes
you agree with the decision but you do not agree with the
reason. The decision is correct but this should be the reason.
Because actually, you are defending the decision on another
ground.
Meaning the court made a mistake in arriving at the decision
but the decision is correct. Yan, puwede yan. But if you want
the decision to be changed, then you must also appeal.
Now, let us go to the case of SANTOS which involves the law on
lease, particularly the interpretation and the application of
Article 1678 Civil Code. Under the law on lease, suppose I will
rent to you my land and you built a building there and there is
no agreement as to who will own the building after the
termination of the lease.
Suppose there is no stipulation, who will own the building?
According to the Civil Code, the owner of the land has the option
to acquire the building by paying one half of its value. Pero, if I
do not want to appropriate the building, then you have the right
to remove the building provided you will not damage the land.
So the option to pay you belongs to the owner of the land. The
lessee cannot compel the owner of the land to pay.
Let us go now to the case of Santos. This is a very queer case.
SANTOS vs. CA – 221 SCRA 42
FACTS: Artemio Santos et al are lessees of a piece of land. They
have not paid the rentals for 28 years. The lessor filed a case of
unlawful detainer against all of them before the Metropolitan
Trial Court of Pasig. The trial court rendered judgment against
Santos et al. So they were ordered ejected.
Now, these people were not satisfied. They still appealed to the
RTC. The RTC affirmed the judgment that they should be
ejected but modified it by ordering the lessor to reimburse the
lessees for the latter’s improvements on the leased property. So,
affirmed, but bayaran mo iyong mga bahay ng mga tao. (DEAN
I: To my mind, that portion of the decision is wrong. You cannot
order the lessor to reimburse.)
But despite that, Santos et al were not satisfied. They still
appealed to the CA. The lessor did not appeal so obviously, the
lessor is willing to pay. Although he has no obligation to pay the
improvements, pero sige na lang para matapos na! He did not
appeal.
Now, the CA affirmed again the ejectment. So tatlo na. There
were three courts where the occupants lost. But the CA deleted
the portion of the RTC decision ordering reimbursement of the
improvements. It was really wrong. Walang reimbursement
diyan.
So this time, Santos et al appealed to the SC. And they say that
the portion of the decision deleting our right to reimbursements
is wrong because the owner of the land is not questioning it, he
is not appealing so why should the CA delete it? So, meaning
payag iyong owner. Therefore that portion of the decision of the
CA where we are no longer entitled to reimbursement is
erroneous. The CA has no power to delete that portion of the
RTC decision because there was no appeal from the landowner.
ISSUE: Is the decision of the CA correct?
HELD: YES. The CA is correct. “It is true that the rule is well-
settled that a party cannot impugn the correctness of a
Judgment not appealed from by him, and while he may make
counter-assignment of errors, he can do so only to sustain the
judgment on other grounds but not to seek modification or
reversal thereof for in such a case he must appeal. A party who
does not appeal from the decision may not obtain any
affirmative relief from the appellate court other than what he
has obtained from the lower court, if any, whose decision is
brought up on appeal. However, the Rules of Court and
jurisprudence authorize a tribunal to consider errors, although
unassigned, if they involve (1) errors affecting the lower court's
Jurisdiction over the subject matter, (2) plain errors not
specified, and (3) clerical errors.”
“Under Article 1678, it is the lessor who has the option to pay
for one-half of the value of the improvements which the lessee
has made in good faith. The lessee cannot compel the lessor to
appropriate and reimburse.” Therefore, the decision of the RTC
ordering the lessor is actually erroneous.
“Hence, the award of reimbursement for improvements by the
trial court in favor of petitioners amounts to a plain error which
may be
rectified on appeal although not specified in the appellee’s brief.”
But the trouble is, the landowner did not appeal. If we follow the
ruling, then lahat ng mali ng trial court ay plain error na. That
is what the SC said. Bakit man naging plain error ito when
actually it will not qualify as plain error ? If we will follow that
line of reasoning, every mistake committed by a trial court can
be corrected being a plain error.
To my mind, merong equity ito, eh. Analyze the case. You are
occupants for 28 years and you did not pay. Ayaw mo lumayas,
bayaran ka pa? There is something wrong there already. I think
that is the factor eh.
So the SC said that it is too unfair for the landowner still to be
required to pay. Imagine they stayed there for 28 years, hindi pa
nagbayad. I think those are the factors. So in other words,
equity bah! So the Court has to look for a reason to justify. Ang
nakita is plain error – when you do not know how to apply the
law, then it is plain error. But actually, that should be an
assigned error. It is a very interesting case.
Sec. 9. Promulgation and notice of judgment. -
After the judgment of final resolution and
dissenting or separate opinions, if any, are
signed by the Justices taking part, they
shall be delivered for filing to the clerk
who shall indicate thereon the date of
promulgation and cause true copies
thereof to be served upon the parties or
their counsel. (n)
Sec. 10. Entry of judgments and final
resolutions. - If no appeal or motion for new
trial or reconsideration is filed within the
time provided in these Rules, the
judgment or final resolution shall
forthwith be entered by the clerk in the
book of entries of judgments. The date
 when the judgment or final resolution
becomes executory shall be deemed as the
date of its entry. The record shall contain
the dispositive part of the judgment or
A.
final resolution and shall be signed by the
clerk, with a certificate that such
judgment or final resolution has become
final and executory. (2a, R36)
Sec. 11. Execution of judgment. - Except
where the judgment or final order or
resolution, or a portion thereof, is ordered
to be immediately executory, the motion
for its execution may only be filed in the
proper court after its entry.
In original actions in the Court of Appeals,
its writ of execution shall be accompanied
by a certified true copy of the entry of
judgment or final resolution and addressed
to any appropriate officer for its
enforcement.
Section 2. Discretionary execution.
Execution of a judgment or final order pending
appeal.- On motion of the prevailing party
with notice to the adverse party filed in
the trial court while it has jurisdiction
over the case and is in possession of either
the original record or the record on
appeal, as the case may be, at the time of
the filing of such motion, said court may,
in its discretion, order execution of a
judgment or final order even before the
expiration of the period to appeal.
After the trial court has lost jurisdiction,
the motion for execution pending appeal
may be filed in the appellate court.
Discretionary execution may only issue
upon good reasons to be stated in a special
order after due hearing.

In appealed cases, where the motion for

B. Execution of several, separate or partial
execution pending appeal is filed in the
judgments.- A several, separate or partial
Court of Appeals at a time that it is in
judgment may be executed under the same
possession of the original record or the
terms and conditions as execution of a
record on appeal, the resolution granting
judgment or final order pending appeal.
such motion shall be transmitted to the
lower court from which the case
originated, together with a certified true
copy of the judgment or final order to be
executed, with a directive for such court of
origin to issue the proper writ for its
enforcement. (n)

Q: Now, how do you execute a judgment of the CA?

A: Under Section 11, it depends if it is an original action or an
appealed case.
For an appealed case, in case of execution pending appeal, take
note that if the records of the case are already elevated to the
CA, motion for execution pending appeal should already be filed
there. And if the CA grants the motion to execute pending
appeal, it will follow the third paragraph there. It will issue the
order and direct the RTC to enforce the judgment.
Now, you should correlate this with Rule 39 Sections 1 and 2:
Rule 39, Section 1. Execution upon
judgments or final orders. - Execution shall
issue as a matter of right, on motion ,
upon a judgment or order that disposed of
the action or proceeding upon the
expiration of the period-to appeal
therefrom if no appeal has been duly
perfected.
Rule 52
MOTION FOR RECONSIDERATION
Sec. 1. Period for filing. - A party may file a
motion for reconsideration of a judgment
or final resolution within fifteen (15) days
from notice thereof, with proof of service
on the
adverse party. (n)
Q: Can a party file a motion for reconsideration of a CA
decision?
A: YES. That is very obvious. (Section 1)
Sec. 2. Second motion for reconsideration. -
No second motion for reconsideration of a
judgment of final resolution by the same
party shall be entertained. (n)

If the appeal has been duly perfected and Q: Can you file more than one motion for reconsideration?
finally resolved, the execution may
forthwith be applied for in the court or
origin, on motion of the judgment obligee, A: NO. No second motion for reconsideration of a judgment or
submitting therewith certified true copies final resolution by the same party shall be entertained. (Section
of the judgment or judgments or final 2) There is no such thing as second motion for reconsideration.
order or orders sought to be enforced and
of the entry thereof, with notice to the Section 2 of Rule 52 is also in accord with Section 11 of the
adverse party. Judiciary law. Section 11 of the Judiciary law governs how may
times you can file a motion for reconsideration in the CA.
The appellate court may, on motion in the
same case, when the interest of justice so BP 129, Section 11. Quorum -
requires, direct the court of origin to issue
the writ of execution.
 “xxxx A motion for reconsideration of its
decision or final resolution shall be
resolved by the Court within ninety (90)
days from the time it is submitted for
resolution and no second motion for
reconsideration from the
same party shall be entertained.”
Under par. (3), the CA has 90 days from the time it is submitted
for the resolution to rule on a motion for reconsideration.
Sec. 3. Resolution of motion. - In the Court of
Appeals, a motion for reconsideration shall
be resolved within ninety (90) days from
the date when the court declares it
submitted for
resolution. (n)
The CA is given only 90 days to resolve a motion for
reconsideration.
Sec. 4. Stay of execution. - The pendency of
a motion for reconsideration filed on time
and by the proper party shall stay the
execution of the judgment or final
resolution sought to be reconsidered
unless the court, for good
reasons, shall otherwise direct. (n)
Q: What happens when a judgment of the CA is the object of a
motion for reconsideration? What happens to the execution?
A: Stayed – it is not yet final unless the court for good reasons
shall otherwise direct like when there is a good ground to
execute pending appeal.
Rule 53
NEW TRIAL
Q: What is the ground for new trial in CA?
A: The ground for new trial is newly discovered evidence. (Sec 1)
Sec. 1. Period for filing; ground. - At any time
after the appeal from the lower court has
been perfected and before the Court of
Appeals loses jurisdiction over the case, a
party may file a motion for a new trial on
the ground of newly discovered evidence
which could not have been discovered
prior to the trial in the court below by the
exercise of due diligence and which is of
such a character as would probably change
the result. The motion shall be
accompanied by affidavits showing the
facts constituting the grounds therefor
and the newly discovered evidence.
(1a)
The ground is newly discovered evidence similar to the second
ground for new trial in the RTC (FAME). Fraud, accident,
mistake – hindi kasali. Only newly discovered evidence is the
ground under Rule 53.
Q: Suppose the case is before the SC, can a party file a motion
for new trial on the ground of newly discovered evidence before
the SC under Rule 53 in a civil case?
A: NO. The SC said in the case of
NAVARRA vs. CA – 204 SCRA 850
HELD: The Rules of Court allows only two (2) occasions where a
party may file a motion for new trial on the ground of newly
discovered evidence. That motion may be filed only with the trial
court under Rule 37 or with the CA under Rule 53 BUT NEVER
with the SC.
“Time and again, We have stressed that the SC is not a trier of
facts. It is not a function of the SC to analyze or weigh all over
again the evidence already considered in the proceedings below.
Its jurisdiction is limited to reviewing only errors of law that
may have
been committed by the lower courts.”
If there would be a motion for new trial with the SC and it would
be granted, you are converting the SC into a trial court.
Sec. 2. Hearing and order. - The Court of
Appeals shall consider the new evidence
together with that adduced at the trial
below, and may grant or refuse a new trial,
or may make such order, with notice to
both parties, as to the taking of further
testimony, either orally in court, or by
depositions, or render such other
judgment as ought to be rendered upon
such terms as it may deem
just. (2a)
Sec. 3. Resolution of motion. - In the Court of
Appeals, a motion for new trial shall be resolved
within ninety (90) days from the date when the
court declares it submitted for
resolution. (n)
Sec. 4. Procedure in new trial. - Unless the
court otherwise directs, the procedure in
the new trial shall be the same as that
granted by a Regional Trial Court. (3a)
Q: If the motion for new trial is granted, can the CA conduct the
new trial itself acting as a trial court?
A: YES, under section 4 and under the Judiciary Law
particularly section 9, the CA can receive evidence and act as a
trial court. That is why it is a powerful court.
BP 129, Section 9, last paragraph:
“The Court of Appeals shall have the power
to try cases and conduct hearings, receive
evidence and perform any and all acts
necessary to resolve factual issues raised
in cases falling within its original and
appellate jurisdiction, including the power
to grant and conduct new trials or further
proceedings.”
Rule 54
INTERNAL BUSINESS
Section 1. Distribution of cases among
divisions. - All the cases of the Court of
Appeals shall be allotted among the
different divisions thereof for hearing and
decision. The Court of Appeals, sitting en
banc, shall make proper orders or rules to
govern the allotment of cases among the
 different divisions, the constitution of
such divisions, the regular rotation of 1) Adjudication
Justices among then the filing of vacancies 2) Discipline
occurring therein, and other matters 3) Rule-Making
relating to the business of the court; and
such rules shall continue in force until
repealed or altered by it or by the Supreme
Court.

Section 2. Quorum of the court. –A majority

of the actual members of the court shall
constitute a quorum for its sessions en
banc. Three members shall constitute a
quorum for the sessions of a division. The
affirmative votes of the majority of the
members present shall be necessary to
pass a resolution of the court en banc. The
affirmative votes of three members of a
division shall be necessary for the
pronouncement of a judgment or final
resolution, which shall be reached in
consultation before the writing of the
opinion by any member of the division.

(just read) 
Rule 56

PROCEDURE IN THE SUPREME COURT

Rule 55

This is an entirely new provision. In the SC, there are 2 types of

PUBLICATION OF JUDGMENTS AND FINAL
cases – ORIGINAL and APPEALED. The SC has both the original
RESOLUTIONS
and appellate jurisdiction.

The decisions of the CA must be published. Kung wala sa

Philippine Reports, nasa Court of Appeals Reports. They call
that CARA (Court of Appeals Reports Annotated).
Section 1. Publication. - The judgments and final
resolutions of the court shall be published in the
Official Gazette and in the Reports officially
authorized by the court in the language in which
they have been originally written, together with
the syllabi therefore prepared by the reporter in
consultation with the writers thereof. Memoranda
of all other judgments and final resolutions not so
published shall be made by the reporter and
published in the Official Gazette and the
authorized reports.
Section 2. Preparation of opinions for publication. -
The reporter shall prepare and publish with each
reported judgment and final resolution a concise
synopsis of the facts necessary for a clear
understanding of the case, the names of counsel,
the material and controverted points involved, the
authorities cited therein, and a syllabus which
shall be confined to points of law.
What are the original cases cognizable by the SC?
A.) ORIGINAL CASES
SECTION 1. Original cases cognizable. – Only
petitions for certiorari, prohibition,
mandamus, quo warranto, habeas corpus,
disciplinary proceedings against members
of the judiciary and attorneys, and cases
affecting ambassadors, other public
ministers and consuls may be filed
originally in the
Supreme Court. (n)
You know them no? – Certiorari, prohibition, mandamus, quo
warranto, habeas corpus, cases affecting ambassadors other
public ministers and consuls – nasa Constitution din yan. This
is only a repetition of Article VIII, Section 5 (1) of the
Constitution. Aside from that, the Rules of Court give the SC
authority to hear disciplinary proceedings against members of
the judiciary, disbarment or removal of judges. SC man yan ba!
And they are governed specially for disbarment by Rule 139-B of
the Rules of Court.

Section 3. General make-up of volumes. - The
published decisions and final resolutions of the
Supreme Court shall be called "Philippine Reports,"
while those of the Court of Appeals shall known as
the "Court of Appeals Reports." Each volume
thereof shall contain a table of the cases reported
and the cases cited in the opinions, with a
complete alphabetical index of the subject matters
of the volume. It shall consist of not less than
seven hundred pages printed upon good paper, well
bound and numbered consecutively in the order of
the volumes published.
SEC. 2. Rules applicable. – The procedure in
original cases for certiorari, prohibition,
mandamus, quo warranto and habeas
corpus shall be in accordance with the
applicable provisions of the Constitution,
laws, and Rules 46,48, 49, 51, 52 and this
Rule, subject to the following provisions:
a.) All references in said Rules to the Court
of Appeals shall be understood to also
apply to the Supreme Court;

b.) The portions of said Rules dealing

strictly with and specifically intended for
Powers and Functions of the Supreme Court:
 appealed cases in the Court of Appeals
shall not be
applicable; and
c.) Eighteen (18) clearly legible copies of
the petition shall be filed, together with
proof of service on all adverse parties.
The proceedings for disciplinary action
against members of the judiciary shall be
governed by the laws and Rules prescribed
therefor, and those against attorneys by
Rule
139-B, as amended. (n)
a.) All references in said Rules to the Court of Appeals
shall be understood to also apply to the Supreme
Court
Actually, kulang ito eh. These proceedings are actually governed
more by Rule 65 and 66. But they are also covered by Rule 46,
48, 49, 51 and 52 (CA) and it also applies to SC.
b.) The portions of said Rules dealing strictly with and
specifically
intended for appealed cases in the Court of Appeals shall
not be applicable; and
This is more of legal and judicial ethics.
Q: When you file a petition before the SC for certiorari,
prohibition or mandamus, how many copies?
A: First filing – 18 copies minimum. Why? Because you do not
know whether it will be considered as an en banc case or a
division case. The SC operates in 2 ways. It decides cases either
en banc or by division. 18 copies is required because 15 na ang
justices, only three (3) for the clerk.
Q: How about subsequent pleadings? How many copies?
A: Depende. Kung en banc, all subsequent pleadings, still 18
copies. Kapag division case, 9 na lang. Now, there are three
divisions in the SC – the first, second and third divisions. And
every division is composed of five (5) members.
The SC meets en banc twice a week – Tuesday and Thursday –
unless they have changed it. It is called an en banc session.
Cases are raffled for assignment by division. Monday and
Wednesday, hiwa-hiwalay sila – the 5 justices who belong to the
same division meet together and discuss cases which are
raffled to that division. Friday is a NO SESSION but a working
day. That is when they study, prepare their decisions and
resolutions. That is why we can also predict when will the result
of the Bar be released because that is an en banc session. Only
the SC en banc can order the release of the results of the Bar
Exam. They have to pass a resolution.
B. APPEALED CASES
SEC. 3. Mode of appeal. – An appeal to the
Supreme Court may be taken only by a
petition for review on certiorari, except in
criminal cases where the penalty imposed
is death, reclusion perpetua or life
imprisonment. (n)
There is only one way of appeal to the SC. The only mode of
appeal recognized is Petition for Review by Certiorari under Rule
45, except in criminal cases when the penalty imposed by the
RTC is death penalty, reclusion perpatua or life imprisonment
where only ordinary appeal (under Rule 41) is required. Outside
of that, the only mode of appeal to the SC is Petition for Review
by Certiorari.
Please connect this with Rule 45, Section 9:
Rule 45, Sec. 9. Rule applicable to both civil
and criminal cases.- The mode of appeal
prescribed in this rule shall be applicable
to both civil and criminal cases except in
criminal cases where the penalty imposed
is death, reclusion; perpetua or life
imprisonment.
Rule 56, Sec. 4. Procedure.- The appeal
shall be governed by and disposed of in
accordance with the applicable provisions
of the Constitution, laws, Rules 45, 48,
sections l,2, and 5 to 11 of Rule 51, 52
and this rule.
Q: What are the grounds for dismissal of an appeal before the
SC?
A: Section 5:
Section 5. Grounds for dismissal of appeal.-
The appeal may be dismissed motu propio
or on motion of the respondent on the
following grounds:
a. Failure to take the appeal within the
reglementary period;
b. Lack of merit in the petition;
c. Failure to pay the requisite docket fee and other
lawful fees or to make a deposit for
costs;
d. Failure to comply with the requirements
regarding [proof of service and contents of and
the documents which should accompany the
petition;
e. Failure to comply with any circular, directive or
order of the Supreme Court without justifiable
cause;
f. Error in the choice of mode of appeal; and
g. The fact that the case is not appealable to
the Supreme Court.
Connect Rule 56, Section 5 with Rule 45, Section 5. The
grounds are identical, to wit:
Rule 45, Sec. 5. Dismissal or denial of
petition. The failure of the petitioner to
comply with any of the foregoing
requirement regarding the payment of the
docket and other lawful fees, deposit for
costs, proof of service of the petition, and
the contents of and the documents which
should accompany the petition shall be
sufficient ground for the dismissal thereof.
The Supreme Court may on its own
initiative deny the petition on the ground
that the appeal is without merit, or is
prosecuted manifestly for delay or that the
 questions raised therein are too
unsubstantial to require consideration.
Sec. 6. Disposition of improper appeal –
Except as provided in section 3, Rule 122
regarding appeals in criminal cases where
the penalty imposed is death, reclusion
perpetua or life imprisonment, an appeal
taken to the Supreme Court by notice of
appeal; shall be dismissed.
An appeal by certiorari taken to the
Supreme court from the Regional Trial
Court submitting issues of fact may be
referred to the Court of Appeals for
decision or appropriate action. The
determination of the Supreme Court on
whether or not the issues of fact are
involved shall be final.
This is already discussed in Rule 50, Section 2. A wrong appeal
is a ground for a dismissal of such appeal.
Q: If the appeal is on pure question of law (it should be before
the SC) and by mistake the party appealed to the CA, what will
happen?
A: The appeal will be dismissed under Rule 50. The CA will not
endorse the case to the SC.
Q: Suppose you will appeal by certiorari to the SC under Rule
45. Tapos, halo pala – hindi naman pala question of law lahat –
may kasamang question of fact. What will happen now in the
appeal?
A: Under Rule 56, Section 6, the SC may or may not dismiss
the appeal. It may refer the matter to the CA – baliktad noh? So
it is not the same as Rule 50, Section 2.
Section 7. Procedure if opinion is divided.
Where the court en banc is equally divided
in opinion, or the necessary majority
cannot be had, the case shall again be
deliberated on, and if after such
deliberation no decision is reached, the
original action commenced in the court
shall be dismissed; in appealed cases, the
judgment or order appealed from shall
stand affirmed; and on all incidental
matters, the petition or motion shall be
denied.
What happens if the justices of the SC are equally divided?
For instance, there were 4 in attendance in a division dahil
absent ang isa – the result is 2:2. So, we will deliberate again,
but still 2:2. If that is so, the decision appealed from is
considered affirmed. In other words, the ruling in the lower
court is considered correct.
The counterpart of this rule in Criminal Procedure is Rule 125,
Section 3. If after deliberation, the justices are even, they will
deliberate again but still even. The decision must be acquittal.
Since you cannot break the tie, it must be in favor of the
accused.
EN BANC CASES
Now, before we leave this topic, of course we know very well that
when you appeal to the SC, there are two possibilities – either it
will be heard by a division (there are 3 divisions there) or your
case might be decided by the entire SC en banc.
Q: What cases are heard by the SC en banc?
A: There was a circular in 1993 issued by the SC enumerating
en banc cases:
1) Cases in which the constitutionality or validity of any
treaty, international or executive agreement, law,
executive order, presidential decree, proclamation, order,
instruction, ordinance or regulations in question. For
example, the
recent Oil Deregulation Law;
2) Criminal cases in which the appealed decision imposes
death penalty; Criminal cases where a change of venue
is required to avoid miscarriage of justice where SC has
to make an order to change the venue;
Pag reclusion perpetua, hindi man yan en banc ba! Only
for death penalty.
3) Cases raising novel questions of law;
There is a point of law where there is no decided case yet.
Meaning, such legal issue is raised for the first time.
4) Cases affecting ambassadors, other public ministers or
consuls;
5) Cases involving decisions, resolutions, orders of the
COMELEC, COA, or the Office of the OMBUDSMAN,
SANDIGANBAYAN in administrative disciplinary cases;
6) Cases in which the penalty involved is a dismissal of the
judge, officer or employee of the judiciary, disbarment of
a lawyer or even suspension of any of them for a period
of more than one (1) year of fine exceeding P10,000.
Tignan mo sa SCRA. Pag ang penalty is removal of a
judge or disbarment, en banc yan. And sometimes, you
cannot even identify who is the ponente. Ang tawag
diyan per curiae. The ponente is not identified.
7) Cases where a doctrine or principle of law laid down by
the
Court en banc or division may be modified or reversed;
A decision by a division can only be reversed by the SC
en banc. The same is true in a decision previously
decided en banc. Only SC en banc can change its mind
and reverse its previous ruling.
8) Cases assigned in a division which in the opinion of at
least three (3) members thereof, merit the attention of the
Court en banc and are acceptable to the majority of the
actual members of the court en banc;
Meaning, it is a division case but at least three members
of the division are of the view that it should be elevated
to the SC en banc. And the majority of the entire court
also agree.
Example: A case is assigned to a division. After
deliberating, majority of the 5 hold that the case is so
important that referral to the entire membership is
proper. Then when it is referred en banc, majority
accepts it, then it is to be decided en banc.

Specific Example: The case of PEOPLE vs. LUCAS in
Criminal Law. ISSUE: Is the penalty of reclusion perpetua
divisible or indivisible? The original ruling there by a
division is that it is a divisible penalty. But upon motion
for reconsideration by the Solicitor General, the first
division realized that maraming implications ito. So at
least 3 or 4 voted na itapon natin to the SC en banc and
then the entire voted.
BAR QUESTION: A lost in an appealed decision. He filed
a motion for reconsideration. He is insisting that his
motion be resolved by the entire membership of the SC.
Can he
 insist that his motion for reconsideration be heard by the entire
membership of the SC en banc when he lost in a division?

A: NO, because the SC en banc is not a separate court from one of its
divisions. You cannot say that a decision by a division can be appealed
to the SC en banc because it is the same court. The best that can
happen to you is you convince the members of the same division to
refer the matter to the entire court en banc and try to convince the
majority of the court en banc to accept it. That is the correct move.

9) All other cases as the court en banc, by the majority of its actual
members, may deem of sufficient importance to merit its attention.

These cases are those involving the welfare of the nation like Lotto
case, EVAT, Manila Hotel case. This is also the ground invoked by
Imelda Marcos where she tries to convince the court en banc to hear
her motion for reconsideration.

GOODLUCK AND GOD BLESS SA EXAM!! 終わり…

それは長かった…